Summyr K. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUMMYR K., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.K., A.K., Appellees.

No. 1 CA-JV 18-0061
FILED 8-28-2018

Appeal from the Superior Court in Maricopa County
No. JD30701
The Honorable Alison Bachus, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Kathryn E. Harris
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Counsel for Appellee Department of Child Safety
 SUMMYR K. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

C R U Z, Judge:

¶1 Summyr K. (“Mother”) challenges the superior court’s order
terminating her parental rights to twins A.K. and A.K., born in February
2016, on the basis of Mother’s substance abuse, the children’s out-of-home
placement for over six months, and a finding that it is in the children’s best
interests. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In June 2015, the Department of Child Safety (“DCS”) filed a
dependency petition as to Mother’s child, A.M., due to Mother’s alleged
substance abuse.1 One year later, the twins were added to the dependency
petition. DCS alleged that Mother had a current and long history of abusing
drugs—including methamphetamine, cocaine, heroin, and prescription
medications—had failed to participate in drug testing, and that her
substance abuse impaired her ability to provide proper care for the twins.
The twins were found dependent as to Mother in early July 2016, and the
court adopted a family reunification case plan.

¶3 Mother participated in services through Lifewell Behavioral
Wellness through July 2016. But after Lifewell recommended that Mother
enter its residential inpatient program, she declined and discharged herself
on July 14.

¶4 On August 4, Mother checked into Patina Wellness Center
(“Patina”). Mother resided at Patina for only eight days before she was
discharged for failing to abide by Patina’s rules, using drugs off-site,
attempting to bring drugs on-site, and minimizing her negative behaviors.

¶5 On August 16, 2016, while on probation for a narcotics charge
and resisting arrest, Mother stabbed her boyfriend and was arrested for

1 A.M. requested and was appointed a permanent guardian, was
dismissed as a party to the severance motion, and is not a party to this
appeal.

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Decision of the Court

aggravated assault and disorderly conduct. Mother pleaded guilty to
misconduct involving a weapon. Mother was incarcerated from August
2016 until December 2017.

¶6 Meanwhile, given Mother’s lack of progress, DCS moved to
change the case plan to severance and adoption in February 2017, and later
moved to terminate her rights to the twins on the six-month out-of-home
placement and substance-abuse grounds. Upon her release from prison,
DCS provided Mother with referrals for drug testing, substance-abuse
treatment, and a case-aide. The court held a contested severance hearing
on January 2, 2018, and took DSC’s motion to terminate Mother’s parental
rights to the twins under advisement. On February 13, 2018, the court
granted the motion, terminating Mother’s parental rights to the twins on
both grounds and also finding termination was in their best interests.

¶7 Mother timely appealed, challenging the sufficiency of the
evidence for both statutory grounds and best interests. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-235,
12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶8 Mother claims the court’s order terminating her parental
rights on both the six-month out-of-home placement ground and the
substance abuse ground is not supported by reasonable evidence.

¶9 The superior court may terminate parental rights if DCS
proves a § 8-533(B) statutory ground by clear and convincing evidence,
Michael J. v. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and that
termination is in the children’s best interests by a preponderance of the
evidence, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). We do not
reweigh evidence on appeal and will affirm the superior court’s factual
findings if supported by reasonable evidence in the record. Dominique M.
v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 6 (App. 2016).

I. Substance Abuse Ground

¶10 The court may terminate a parent’s rights under A.R.S. § 8-
533(B)(3) if it finds by clear and convincing evidence “the parent is unable
to discharge [their] parental responsibilities because of . . . a history of
chronic abuse of dangerous drugs [or] controlled substances . . . and there
are reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” In addressing termination pursuant to
A.R.S. § 8-533(B)(3), the court may consider any admissible evidence,

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including evidence of the length and frequency of the substance abuse,
substances abused, behaviors associated with the abuse, prior efforts to
maintain sobriety, and prior relapses, in determining whether reasonable
grounds exist to believe the condition will continue for a prolonged period.
See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 20 (App. 2016).

¶11 Mother asserts the superior court abused its discretion by
severing her parental rights on this ground. But reasonable evidence
supports the court’s order. Mother testified that before her incarceration,
she participated in family reunification, sought counseling at Lifewell, and
participated in drug testing, indicating she was taking steps to remedy her
substance-abuse problem. However, Mother admitted she tested
inconsistently, and a June 2016 status report indicated Mother refused to
test on multiple occasions because she had recently unlawfully ingested
medications. Additionally, Mother’s landlord reported her using
methamphetamine and cocaine, and a June 2016 hair sample tested positive
for amphetamine, methamphetamine, morphine, heroin, and opiates.
Lifewell records indicate Mother used heroin or morphine, and
methamphetamines, three to six times per week. Despite this evidence,
Mother believed that her drug use did not endanger the twins because she
waited roughly three days after each use before breastfeeding. In July 2016,
Lifewell assessed Mother as a high risk due to her refusal to abstain from
mind-altering substances, noting that it appeared Mother was only seeking
treatment to avoid consequences and to appease others. Lifewell
recommended that Mother enter its residential inpatient program, but she
declined.

¶12 Although Mother completed previous treatment programs,
she repeatedly relapsed, including after the twins were born, and agrees
she has a long history of substance abuse. Lifewell records show Mother
has trouble maintaining sobriety despite nearly a year-and-a-half of
working with counselors. Mother claims she is currently sober, but the
superior court properly could balance temporary abstinence against a
significant history of abuse and inability to abstain. See Raymond F. v. Ariz.
Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010). Mother also
participated in services while in prison, and stated her desire to continue to
participate in services to maintain sobriety, but she has relapsed in the past
when not incarcerated. See id. (discussing evidence of a parent’s inability
to rise above their addiction in a “non-custodial and unstructured setting”).
Before her arrest, Mother’s progress with Lifewell was described as “slow”
and then “regression.” During her short stay at the Patina in August 2016,
Mother told the clinicians that she “just like[s] to get high,” blamed DCS

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and others for her troubles, and continued to abuse drugs despite being in
a treatment facility.

¶13 Regarding the impact Mother’s substance abuse had and
would have on her ability to parent the twins, Mother relapsed and
repeatedly used drugs after the twins were born, and DCS reports indicated
she left the twins with others so she could use drugs. Mother was in and
out of treatment facilities, was incarcerated, and had a previous charge for
narcotics possession. See id. at 377-78, ¶ 19 (noting that A.R.S. § 8-533(B)(3)
does not require a finding that the parent be unable to discharge any
parental responsibilities, but that the drug use prevents the parent from
discharging the collective “parental responsibilities”). Although Mother
was currently sober, she testified at the severance hearing that if she were
an objective viewer she would want to see more stability to see that she
“was going through with the services and that [her sobriety] could be
prolonged.”

¶14 For the foregoing reasons, termination pursuant to A.R.S. § 8-
533(B)(3) is supported.

¶15 Although termination of Mother’s rights was also based on
the six-month out-of-home placement ground, because we affirm on
grounds of substance abuse, we need not evaluate whether reasonable
evidence supported the court’s order on other grounds. See Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).

II. Best Interests

¶16 Mother also claims termination is not in the twins’ best
interests. When considering the children’s best interests, the court must
balance the unfit parent’s diluted interest in parenting against the
independent interests of the children in a safe and stable home life. Kent K.,
210 Ariz. at 286, ¶ 35. The party seeking severance has the burden to show,
by a preponderance of the evidence, that termination is in the children’s
best interests based on consideration of the possible benefits of
reunification, the benefits of termination, and the potential continued harm
to the children if the parental relationship continues. See A.R.S. § 8-533(B)
(“[I]n considering any of the following [statutory] grounds, the court shall
also consider the best interests of the child[ren].”); Dominique M., 240 Ariz.
at 98, ¶¶ 8, 12 (discussing a totality of the circumstances, consideration
regarding affirmative benefits of termination, the removal of a detriment to
the children if the parent-child relationship is not severed, and the existence
of a bonded relationship between the biological parent and child).

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Decision of the Court

¶17 Here, the court considered Mother’s substantial and lengthy
history of substance abuse, evidence of Mother’s inability to achieve
permanent sobriety before her incarceration, and evidence that Mother was
incarcerated for misconduct involving a weapon and disorderly conduct
while on probation for previous charges. The evidence supports a finding
that termination would remove a detriment if the parent-child relationship
continued. Additionally, DCS personnel testified the children were in an
adoptive placement that was meeting their needs. This evidence further
supports the court’s finding that termination was in the twins’ best
interests.

CONCLUSION

¶18 We affirm the superior court’s order terminating Mother’s
parental rights.

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

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