Angelina D. v. Dcs, D.B.

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ANGELINA D.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, D.B.,
Appellees.

No. 1 CA-JV 17-0516
FILED 4-19-2018

Appeal from the Superior Court in Maricopa County
No. JD528342, JS518417
The Honorable Robert H. Oberbillig, Judge, Retired

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee DCS
 ANGELINA D. v. DCS, D.B.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Angelina D. ("Mother") appeals from the superior court's
order terminating her parental rights to her son D.B. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother gave birth to D.B. at home in November 2015 with the
aid of a friend who had no medical training. Afterward, she neither took
the infant to a doctor nor obtained a birth certificate for him. As Mother
already was the subject of a dependency proceeding concerning two other
children, the Department of Child Safety ("DCS") removed D.B. from
Mother's care in December. Soon thereafter, the superior court severed
Mother's rights to the two other children.1

¶3 In January 2016, Mother was arrested and charged with
heroin possession. She pled guilty and was sentenced to 2.5 years in prison.
While incarcerated, Mother participated in several services available to
inmates, including Narcotics Anonymous, Heroin Anonymous, counseling,
parenting and relationship programs, and a humanities program offered by
Arizona State University. Even though DCS sent letters to Mother,
Mother's contact with DCS was sporadic, amounting to three letters over
more than 17 months' incarceration. While she was incarcerated, the
superior court changed the case plan for D.B. from reunification to
severance and adoption. DCS then petitioned to terminate Mother's
parental rights, alleging substance abuse, six months' time in care and a
prior severance within the past two years for the same cause.

¶4 Mother was released from prison about a week before the
severance hearing, which was held in October 2017. She testified at the
hearing, as did her DCS case manager. After hearing the evidence, the
superior court issued an order terminating Mother's parental rights based

1 Mother and D.B. are the only two individuals at issue in this appeal.

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upon substance abuse, six months' time in care, and prior termination
within two years for the same cause, all under Arizona Revised Statutes
("A.R.S.") section 8-533(B) (2018).2

¶5 Mother timely appealed, and we have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A)
(2018), 12-120.21(A)(1) (2018), and -2101(A)(1) (2018).

DISCUSSION

¶6 The right to custody of one's children is fundamental but not
absolute. Jeffrey P. v. Dep't of Child Safety, 239 Ariz. 212, 213, ¶ 5 (App. 2016).
The superior court may terminate a parent-child relationship upon clear
and convincing evidence of at least one of the statutory grounds in § 8-
533(B). Id. The court also must find that severance is in the child's best
interests by a preponderance of the evidence. Jennifer S. v. Dep't of Child
Safety, 240 Ariz. 282, 286, ¶ 15 (App. 2016); see also A.R.S. § 8-533(B).

¶7 We review a termination order for abuse of discretion and
will affirm unless no reasonable evidence supports the court's findings. Jade
K. v. Loraine K., 240 Ariz. 414, 416, ¶ 6 (App. 2016). The superior court "is in
the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts." Jennifer S., 240 Ariz. at
286-87, ¶ 16 (quoting Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶
18 (App. 2009)). Accordingly, "the resolution of conflicts in the evidence is
uniquely the province of the [superior] court, and we will not reweigh the
evidence in our review." Id.

A. History of Chronic Substance Abuse.

¶8 One of the statutory grounds for termination is that "the
parent is unable to discharge parental responsibilities because of . . . a
history of chronic abuse of dangerous drugs, controlled substances or
alcohol and there are reasonable grounds to believe that the condition will
continue for a prolonged indeterminate period." A.R.S. § 8-533(B)(3). In
moving for severance on this ground, DCS also must show that it made
"reasonable efforts to reunify the family or that such efforts would have
been futile," Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12
(App. 2005), and that the parent's substance abuse "be proven not to be
amenable to rehabilitative services," id., n.3. "Chronic" substance abuse is
that which is long lasting, but not necessarily continuous. Raymond F. v.

2 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Temporary
abstinence from drugs does not generally outweigh a parent's "significant
history of abuse" or "consistent inability to abstain during the case." Jennifer
S., 240 Ariz. at 287, ¶ 17. Because "'children should not be forced to wait for
their parent to grow up,' . . . a child's interest in permanency must prevail
over a parent's uncertain battle with drugs." Id. (quoting Raymond F., 224
Ariz. at 378, ¶ 25).

¶9 Ample evidence supports the court's finding that Mother is
unable to discharge parental responsibilities because of her history of
chronic drug abuse. Mother testified she became addicted to opioids in
2006 and used heroin every day from sometime in 2007 until her arrest in
January 2016. Immediately preceding her incarceration, during the
dependency involving her other children, she failed to follow up on four
referrals to TERROS, missed several drug tests and tested positive for
heroin 12 times. That she chose to deliver D.B. at home without medical
assistance, failed to take him to a doctor after he was born, and did not
obtain a birth certificate for him, all support the conclusion that drug abuse
rendered her unable to discharge her parental responsibilities. See Raymond
F., 224 Ariz. at 378, ¶ 20 (parental responsibilities are "those duties or
obligations which a parent has with regard to [her] child").

¶10 The record also contains reasonable grounds for the superior
court's finding that Mother's inability to discharge her parental
responsibilities will continue for a prolonged indeterminate period. On this
point, the superior court may consider "the length and frequency of
Mother's substance abuse, the types of substances abused, behaviors
associated with the substance abuse, prior efforts to maintain sobriety, and
prior relapses." Jennifer S., 240 Ariz. at 287, ¶ 20. Here, the record shows
that Mother used heroin on a daily basis for nine years – lengthy and
frequent use of an illegal narcotic. In fact, Mother testified that she would
become physically ill if she did not use opiates on a daily basis. As noted
above, and as Mother admitted, her behaviors when she was using heroin
demonstrated a disregard for her child's medical needs and well-being.
Finally, the record does not contain any evidence that Mother attempted to
maintain sobriety until forced to do so in jail.

¶11 Mother argues DCS failed to prove it made reasonable
reunification efforts or that such efforts would be futile. She also argues
that because she abstained from heroin during her incarceration and
participated in a substance-abuse program and attended Narcotics
Anonymous meetings while in prison, DCS did not prove that she was not
amenable to treatment. But Mother's failure to comply with services during

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the prior dependency was evidence that further services would prove futile.
In Raymond F., 224 Ariz. at 379, ¶ 29, we stressed the importance of proof
that a parent be able "to rise above [her] addiction in a non-custodial and
unstructured setting, similar to that in which a [parent] would be expected
to raise [her] children." Here, reasonable evidence supports the superior
court's finding that Mother's abstinence from drugs while in prison did not
outweigh her demonstrated longstanding inability to "rise above" her
addiction in an unstructured setting. We will not disturb that finding. See
Jennifer S., 240 Ariz. at 286-87, ¶ 16.3

B. Best Interests.

¶12 The superior court may find that severance is in a child's best
interests "based on either a benefit to the child from severance or some harm
to the child if severance is denied." Demetrius L. v. Joshlynn F., 239 Ariz. 1,
4, ¶ 16 (2016). The court should consider whether an adoptive placement is
immediately available, whether the existing placement is meeting the
child's needs, and whether the child is adoptable. Id. (citing Raymond F.,
224 Ariz. at 379, ¶ 30). In weighing a parent's interest in custody and control
of a child against the child's interests in a safe and stable home life, "[o]f
foremost concern . . . is 'protecting a child's interest in stability and
security.'" Demetrius L., 239 Ariz. at 4, ¶ 15 (quoting Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 34 (2005)).

¶13 Mother argues that for the long term, it would be in D.B.'s best
interests to maintain his relationship with her. But in finding to the
contrary, the superior court explained:

He deserves permanency. He's in a loving home. He's
with siblings. He's with family placement. It couldn't be a
better situation for him. He's thriving, his needs are being
met, and we don't . . . have to wonder about a maybe with
him.

He has a very good situation now, which is
outstanding, and it makes no sense at all – it would be
detrimental to him to disrupt that, to see what happens over

3 Having found evidence sufficient to support severance based on a
history of chronic substance abuse, we need not address any of the other
statutory grounds on which the court ruled. See Michael J. v. Ariz. Dep't of
Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000).

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the course of requiring mother to participate in an approved
substance abuse program, regular drug testing on the outside,
and then see where she's at in terms of parenting the child and
reintroducing the child to her.4

¶14 Reasonable evidence supports these findings. Mother's case
manager testified that not only is D.B. placed with relatives who are
meeting his needs and willing to adopt him, in his current placement, the
child is able to see his two siblings and his birth father. Furthermore, D.B.
has not bonded with Mother because he has not seen her since DCS
removed him from her care in December 2015, weeks after he was born.
The superior court committed no error in finding that severance would be
in D.B.'s best interests.

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court's
termination of Mother's parental rights to D.B.

AMY M. WOOD • Clerk of the Court
FILED: AA

4 The court's formal findings of fact erroneously state that D.B. was
not in a family placement.

6