Lessie N., James D. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LESSIE N., JAMES D., Appellants,

v.

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

No. 1 CA-JV 18-0305
FILED 2-26-2019

Appeal from the Superior Court in Mohave County
No. S8015JD201600081
The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Harris & Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Appellant James D.

Mohave County Legal Defender’s Office, Kingman
By Eric Devany
Counsel for Appellant Lessie N.

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
 LESSIE N., JAMES D. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones
joined.

T H U M M A, Chief Judge:

¶1 Lessie B. (Mother) and James D. (Father) appeal from an order
terminating their parental rights to B.H. (for Mother) and S.D. (for both).
Because neither has shown error, the order is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of B.H. (born in 2005) and S.D.
(born in 2010) and Father is the biological parent of S.D.; B.H.’s father is
deceased. In October 2016, the Department of Child Safety (DCS) took B.H.
and S.D. into care and filed a dependency petition alleging substance abuse
as to Mother (including methamphetamine and prescription medication)
and neglect as to both parents. In February 2017, the children were found
dependent and the court adopted a family reunification case plan,
concurrent with severance and adoption.

¶3 DCS provided numerous services to Mother and Father,
including drug testing, parent-aide services, supervised visits and
counseling. Both parents participated in services sporadically throughout
the dependency, with each completing some parenting and substance
abuse classes. They attended most visits and generally appeared at
hearings, team decision making meetings and foster care review board
meetings.

¶4 Neither Mother nor Father regularly participated in drug
testing and, when they did test, both were repeatedly positive for, at
different times, methamphetamine, heroin and opiates. In January 2018, at
DCS’ request, the court changed the case plan to severance and adoption.

1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
206, 207 ¶ 2 (App. 2008).

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As amended, DCS’ motion to terminate alleged substance abuse and 15-
months time-in-care and that termination was in the children’s best
interests.2 See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (8)(c) (2019).3

¶5 Father continued to test inconsistently and tested positive for
methamphetamine and opiates as late as March 2018. Father later tested
negative in April 2018, approximately two months before the two-day
termination adjudication hearing began in June 2018. During this same
time, Mother continued to miss drug tests and failed to provide
documentation from a physician supporting her claimed inability to test.

¶6 At trial, DCS called a case specialist as its only witness, and
both Mother and Father testified to their long-term substance abuse history.
As to more recent use, Father testified to having used methamphetamine
“maybe in April” and heroin “three or four months” before he testified in
June 2018. Mother testified she had used methamphetamine “[m]ore than a
month” before testifying in June 2018 but was “not exactly sure” when.

¶7 At the close of the evidence, the court found DCS had proven
both statutory grounds by clear and convincing evidence, as to both Mother
and Father. Recognizing best interests was “[t]he more difficult issue,” the
court found that B.H. was in an adoptive placement and both children were
adoptable, had been in care “for quite some time, and [did] need stability.”
The court also expressed concerns regarding Mother’s ability to “address
the substance abuse issues” and Father’s failure to provide a proper home
environment and pattern of “ramp[ing] it up a little bit right before
hearings.” Accordingly, the court found it was “in the best interests of the
children to terminate the parent-child relationship” and terminated Mother
and Father’s parental rights.

¶8 This court has jurisdiction over the parents’ timely appeals
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-2101(A) and -120.21(A)(1) and Ariz. R.P. Juv. Ct. 103-04.

2 Although DCS also initially sought termination of Mother’s parental
rights to another child, the case plan for that child was later changed to
independent living and that child is not part of this appeal.

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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Decision of the Court

DISCUSSION

¶9 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
children. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts,” this court
will affirm an order terminating parental rights so long as it is supported
by reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93
¶ 18 (App. 2009) (citations omitted).

I. The Superior Court Properly Found DCS Proved Chronic
Substance Abuse By Clear And Convincing Evidence.

¶10 A court may terminate parental rights if it finds by clear and
convincing evidence “[t]hat 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). “Chronic” use need not be constant but must
be long-lasting. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377 ¶
16 (App. 2010). Periods of temporary abstinence from drugs are insufficient
to outweigh a parent’s significant history of abuse. Id. at 379 ¶ 29.
“Accordingly, a child’s interest in permanency must prevail over a parent’s
uncertain battle with drugs.” Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
287 ¶ 17 (App. 2016).

A. Father Has Failed To Show The Court Erred In Terminating
His Parental Rights Based On Chronic Substance Abuse.

¶11 Father argues the evidence was insufficient to establish all
elements of the substance abuse ground “because solely lay testimony was
presented” and “expert testimony is required.” Father provides no
authority for his assertion that “expert testimony is required to show a
nexus between an illness, deficiency, or chronic abuse and an inability to
parent.” Father cites Maricopa Cty. Juvenile Action No. JS-378, 21 Ariz. App.
202 (1974) to suggest that a finding of “prolonged continuance [of an
underlying prohibited condition] requires expert testimony,” and that
“A.R.S. § 8-533(B)(3) requires a diagnosis by a qualified medical doctor, a
psychiatrist or certified psychologist.” In JS-378, however, DCS’

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predecessor agency sought termination based on mental illness or
deficiency, not substance abuse. Id. at 203. Here, DCS did not allege mental
illness or deficiency but solely a history of drug abuse. Furthermore, even
absent expert testimony, the court reasonably could find DCS proved each
element of the substance abuse ground by clear and convincing evidence.4

¶12 Father, age 54 at the time, admitted in a behavioral health
assessment intake that he first used methamphetamine when he was 19,
opioids at 44, and heroin 6-8 months before the intake. He reported daily
usage of all three substances and testified at trial his longest period of
sobriety was ten years (during which he was incarcerated for all but two
and a half years) and candidly admitted to struggling with substance abuse
for much of his life. The court could reasonably find this history, albeit
containing periods of sobriety, established Father’s “chronic” drug use.
Raymond F., 224 Ariz. at 377 ¶ 16. Moreover, although Father is correct that
no expert testified at trial, evidence admitted at trial without objection
showed Father was diagnosed in 2017 by a behavioral health technician as
having amphetamine-use disorder and dependence, opioid-use disorder
and dependence and heroin dependence, based on his self-reported
substance use history.

¶13 The court found Father’s testimony that his substance abuse
did not affect his ability to parent was not credible. In doing so, the court
noted that “the condition of at least the outside of the home . . . continues
to remain poor;” “[t]here is evidence that the children were not getting
enough food when . . . in the care of the parents, including” Father and
“substance abuse did affect [Father’s] ability to discharge parental
responsibilities.” Father, however, had been unable to adequately address
his substance abuse issues resulting in his inability to parent.

¶14 To his credit, Father attended substance abuse classes,
participated in a detox process, enrolled independently in a program to
address his opioid use and provided negative drug tests in June 2017 and
April 2018. During the dependency, however, Father repeatedly failed to
test and, when he did, tested positive for methamphetamine, heroin and
opioids, doing so after completion of substance abuse classes and at least

4 Although Father cites cases upholding termination that involved “expert
testimony and/or psychological evaluations,” none of the cited cases
establish that either is required under A.R.S. § 8-533(B)(3). Cf. E.R. v. Ariz.
Dep’t of Econ. Sec., 237 Ariz. 56, 59 ¶ 15 (App. 2015) (concluding termination
based on neglect or abuse under A.R.S. § 8-533(B)(2) “does not require . . .
the diagnosis of a medical doctor or psychologist”).

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one detox program. Father tested positive for methamphetamine as late as
March 2018 and, at the June 2018 trial, admitted to “maybe” using
methamphetamine in April 2018 and heroin 3-4 months earlier. “Father’s
temporary abstinence from drugs . . . does not outweigh his significant
history of abuse or his consistent inability to abstain during this case.”
Raymond F., 224 Ariz. at 379 ¶ 29; see also Jennifer S., 240 Ariz. at 288 ¶ 25
(finding mother’s “sobriety in the months immediately preceding the
severance hearing . . . [did] not outweigh her significant history of drug
abuse or her demonstrated inability to remain sober during much of the
case”).

¶15 This evidence of Father’s significant history of drug use,
recent drug use, and failure to maintain sobriety despite completion of
several recovery programs, properly allowed the superior court to
reasonably conclude that Father’s chronic drug abuse will persist for a
prolonged indeterminate period and continue to negatively affect his
parenting abilities. On this record, Father has not shown the court erred in
finding DCS properly had proven the substance abuse ground.

¶16 Father also argues the superior court’s findings “lack the
requisite specificity.” Father failed to raise the issue with the superior court,
and “generally, failure to raise an argument in the superior court waives
the issue on appeal.” Aleise H. v. Dep’t of Child Safety, 245 Ariz. 569, 573 ¶ 12
(App. 2018) (citation omitted). Recognizing whether to find waiver is
discretionary, “in the exercise of that discretion, on the record presented
and to prevent avoidable delay, this court concludes that [Father] has
waived any claim []he may have had that the superior court did not make
adequate” findings. Id. at 573 ¶ 13.

B. Mother Has Failed To Show The Court Erred In
Terminating Her Parental Rights Based On Chronic
Substance Abuse.

¶17 Mother argues there was insufficient evidence for the court to
find that her “alleged history of chronic substance abuse rendered her
unable to discharge her parental responsibilities.” Along with summarizing
Mother’s “history of chronic abuse of dangerous drugs,” the court found
that “the children’s reported statements regarding lack of food, the
condition of the home at the time of removal, [and M]other being contacted
by school but never actually showing up” all showed her substance abuse
“causes an inability to discharge parental responsibilities.” The court then
found DCS made reasonable efforts to provide rehabilitative services for
Mother, discussed her refusal to participate in drug testing and her positive

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Decision of the Court

tests and concluded by finding “no evidence that [M]other has done
anything to address her substance abuse and that it is reasonable to believe
that condition will continue for a prolonged indeterminate period of time.”

¶18 Mother challenges the findings, arguing (1) a lack of food was
no longer an issue because she brought food to visits with the children; (2)
the case specialist had never been inside the home and (3) “there was no
manifest connection between Mother’s failure to show up at the school and
her behavior the following day and actual drug use.”

¶19 Providing food to her children during weekly visits does not
negate Mother’s failure to do so prior to the children’s removal and does
not establish her ability to do so daily, particularly in light of her inability
to address her substance abuse. Although the case specialist who testified
had not been inside the home, the evidence before the court was that the
home had “a mice infestation along with dog feces, and rotten food within
the reach of the children,” and Mother “appeared to be under the influence
of substances” at the time of removal. The trial evidence also included a
report that Mother appeared under the influence during a visit to B.H.’s
school, and her hair follicle sample provided less than a week later was
positive for methamphetamine, heroin and morphine. This evidence,
coupled with Mother’s refusal to participate in drug testing and her positive
tests, allowed the court to reasonably find that her substance abuse led to
her inability to discharge parental responsibilities and that DCS had proven
the statutory ground by clear and convincing evidence.

¶20 The trial evidence also showed that Dr. Stephen Gill
conducted a psychological evaluation of Mother in February 2018 and that
his resulting report noted “[s]obriety is essential to consider [Mother’s]
ability to at least minimally parent.” Despite Dr. Gill’s analysis and the
connection between substance abuse and parenting ability, Mother failed
to achieve or maintain sobriety during the case. She failed to consistently
provide urinalysis tests, failed to provide requested documentation
supporting her alleged inability to do so and tested positive for at least one
illegal substance nearly every time she provided a hair follicle sample. On
this record, Mother has not shown the court erred in finding DCS had
proven the substance abuse ground.5

5Given this conclusion, the court need not, and does not, address the
parties’ arguments addressing the 15-months time-in-care ground. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002).

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II. Neither Father Nor Mother Has Shown The Superior Court Erred
In Finding Termination Was In The Best Interests Of The
Children.

¶21 Mother and Father argue the evidence does not support the
superior court’s best interests finding. Both emphasize that the children
were bonded to them and that S.D. was not in an adoptive placement at the
time of termination.

¶22 When a statutory ground for termination has been proven,
“the focus shifts to the interests of the child as distinct from those of the
parent,” Kent K., 210 Ariz. at 285 ¶ 31, and “[t]he ‘child’s interest in stability
and security’ must be the court’s primary concern,” Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 150 ¶ 12 (2018) (citation omitted). “To establish that
severance of a parent’s rights would be in a child’s best interests, ‘the court
must find either that the child will benefit from termination of the
relationship or that the child would be harmed by continuation of the
parental relationship.’” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282,
288 ¶ 26 (App. 2011) (citation omitted). “It is well established in state-
initiated cases that the child’s prospective adoption is a benefit that can
support a best-interests finding,” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶
16 (2016) (citation omitted), recognizing the court “must consider the
totality of the circumstances existing at the time of the severance
determination,” Alma S., 245 Ariz. at 150-51 ¶ 13. The record is viewed in a
light most favorable to upholding the best-interests findings, and findings
of fact are to be affirmed “’if reasonable evidence and inferences support
them.’” Id. at 151 ¶ 18 (citation omitted).

¶23 As applied here, based on the trial evidence, the superior
court properly found that the children would benefit by termination
because they “are adoptable,” “[B.H.] is in an adoptive placement,” “[t]here
is a good chance of both children being adopted with the termination,” and
“considering that the children have been in out of home placement for a
lengthy period of time, they need stability now.” Although S.D. was not in
an adoptive placement, a family member “ha[d] expressed interest in
adopting” him and he was “in the process of being placed with a
grandparent or another member of” his extended family.

¶24 The court also properly found the children would be harmed
absent termination because it was unclear “how long it would take the
[M]other to be in a position to parent,” Father’s house was still
inappropriate for housing the children, and there “[wa]s concern that
[F]ather ramps up his efforts a little bit before hearings and therefore is not

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making lasting behavioral changes” regarding substance abuse. The court
therefore found both that the children would “benefit from termination of
the relationship [and] . . . would be harmed by continuation of the parental
relationship.” Mario G., 227 Ariz. at 288 ¶ 26 (citation omitted). Either
finding supported termination, and both are supported by the trial
evidence. Accordingly, Mother and Father have failed to show error in the
superior court’s best interests finding.

CONCLUSION

¶25 Because Father and Mother have shown no error, the superior
court’s order terminating their parental rights is affirmed.

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

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