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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRISTIN B., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.S., M.M., Appellees.

No. 1 CA-JV 18-0415
FILED 5-21-2019

Appeal from the Superior Court in Mohave County
No. B8015JD201704038
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Harris & Winger PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee
 KRISTIN B. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined.

T H O M P S O N, Judge:

¶1 Kristin B. (mother) appeals the decision of the juvenile court
terminating her parental rights to B.B. and M.M. (collectively the
“children”).1 For the following reasons we affirm

FACTUAL AND PROCEDURAL HISTORY

¶2 The Department of Child Safety (DCS) first became involved
with the children in April 2017, after mother was arrested for shoplifting
and was found to be in possession of methamphetamine and drug
paraphernalia. B.B. was with her. At the time, mother and children were
residing with maternal grandmother (grandmother). DCS’s initial case plan
was to provide preservation services to the family and did not immediately
initiate a dependency. After mother failed to participate in the services and
tested positive for methamphetamine twice, the case plan changed to an in-
home dependency with grandmother acting as the safety monitor.

¶3 During the in-home dependency, DCS provided mother with
drug testing and outpatient treatment. She failed to participate in those
services. She did however participate in a substance-abuse assessment with
Southwest Behavioral Health in which she admitted to using
methamphetamine since the age of fourteen. She was referred to Marina
Pointe, a residential treatment facility, and although mother agreed to
participate, she failed to show up for her intake.

¶4 In August 2017, it was discovered that grandmother had
allowed her son (uncle), a known drug user, to reside in the home with the
children. Grandmother was also leaving the children alone with both
mother and uncle, a violation of the safety plan and term of the in-home
dependency. The children were then removed and placed in licensed foster
homes.

1Mother has a third child that was involved in the DCS case but was not
subject to this severance because she was reunifed with her father.

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Decision of the Court

¶5 DCS continued to offer mother reunification services
including drug testing and substance-abuse treatment. It also referred her
for parent-aide services and supervised visits. Mother failed to participate
in those services except the supervised visits. DCS also referred her for a
psychiatric evaluation in September 2017. During the evaluation she
admitted to using methamphetamine “all day, every couple of hours.” She
was again referred to an inpatient treatment facility and again failed to
report for intake.

¶6 In October 2017, mother was arrested for burglary, and in
November 2017, was again arrested for shoplifting. During this time, she
also failed to appear for any court hearings on the previous shoplifting and
drug charges. As a result, multiple warrants were issued for her arrest.

¶7 In January 2018, mother was arrested on the outstanding
warrants, and eventually pled guilty to misdemeanor shoplifting and
violation of a promise to appear and was placed on three years’ probation.
She posted bond on the felony warrant and was instructed to contact the
Maricopa County Superior Court within ten days but failed to do so.
Another warrant was issued for her arrest.

¶8 In February 2018, DCS changed the case plan to severance and
adoption and filed a motion to terminate mother’s parental rights. DCS’s
motion alleged that mother neglected the children or failed to protect them
from neglect, and that mother was unable to discharge her parental
responsibilities because of a history of chronic abuse of dangerous drugs,
controlled substances, and/or alcohol. DCS later amended its motion to
include the ground of nine months in care.

¶9 Mother again tested positive for methamphetamine in
February 2018. She failed to test the following month and was closed out
of that referral. DCS met with mother in April 2018, and mother admitted
to still using methamphetamine but stated that she was “attempting to
check into an inpatient rehab program.”

¶10 In May 2018, Mother entered a residential treatment facility,
and completed a thirty-day program. Thereafter, DCS referred mother for
parent-aide services, and supervised visits. She failed to participate in those
services. She also failed to consistently submit to drug testing at TASC. In
July 2018, mother was arrested on an outstanding warrant for the October
2017burglary charge and remained in custody up until the severance trial.

¶11 Following the trial, the court found that DCS had proven, by
clear and convincing evidence, all grounds alleged in the motion. It also

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found that termination of mother’s parental rights was in the best interests
of the children and terminated mother’s rights. Mother timely appealed.
We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 8-
235, 12-120.21 (A)(1), and -2101 (A)(1) (2019).

DISCUSSION

¶12 A parent’s right to custody and control of her own child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). Severance of a parental relationship may be
warranted where the state proves one of A.R.S. § 8-533’s statutory grounds
for termination by “clear and convincing evidence.” Id. at 248-49, ¶ 12;
A.R.S. § 8-863(B) (2019). “Clear and convincing” means the grounds for
termination are “highly probable or reasonably certain.” Kent K. v. Bobby
M., 210 Ariz. 279, 284-85, ¶ 25 (2005). Additionally, the court must also
determine what is in the best interests of the children by a preponderance
of the evidence. Id. at 283-84, ¶¶ 17, 22.

¶13 “[W]e will accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings, and we will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence,
but “look only to determine if there is evidence to sustain the court’s
ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004).

¶14 On appeal, mother argues that the evidence was insufficient
to support the court’s chronic substance abuse finding and was therefore
an abuse of discretion. Specifically, mother first argues that the case
manager who testified had not been involved in mother’s case “for months”
and was therefore unfamiliar with mother’s progress. Mother also argues
that DCS provided insufficient evidence that there was a “nexus between
her drug-use and an inability to parent, or that chronic abuse would
continue indefinitely” because they did not provide an expert witness. We
disagree.

¶15 The case manager who testified had been involved with the
case from December 2017 through August 2018. Although he was no longer
employed by DCS at the time of the hearing, he was the case manager with
the most knowledge of the children and mother’s progress. Additionally,
contrary to mother’s assertion that he had not been involved with the case
“for months,” the record shows that it had been a matter of weeks from the
time he left DCS until the termination hearing. Furthermore, even though

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Decision of the Court

mother had made progress in the months prior to the severance hearing,
when a juvenile court finds that a parent has substantially neglected to
remedy drug addiction during more than a year of out-of-home placement
of a child, the court may grant severance of parental rights even though the
parent eventually begins successful recovery before the severance hearing.
See Matter of Appeal in Maricopa Cty. Juvenile Action No. JS-501568, 177 Ariz.
571, 577 (App. 1994). Thus, the case manager's supposed lack of
information on mother’s recent progress was not significant enough to
warrant exclusion of his testimony. The court therefore did not abuse its
discretion in relying on the case manager’s testimony regarding mother’s
chronic substance abuse.

¶16 Mother’s second argument regarding expert testimony is a
misstatement of the law. Expert testimony is not required to determine
whether a parent’s substance abuse causes them to be unable to discharge
their parental responsibilities. Under A.R.S. 8-533 (B) (3), the juvenile court
may sever a parent’s rights if clear and convincing evidence shows that the
parent is unable to discharge parental responsibilities because of a history
of chronic abuse of a dangerous drug, and there are reasonable grounds to
believe the condition will continue for a prolonged indeterminate period.
Although mother argues that under the same statute there must be expert
testimony to sever based on mental illness, chronic substance abuse does
not require testimony from an expert because substance abuse may be
tested for and easily observed.

¶17 Mother tested positive for methamphetamine on multiple
occasions and failed to submit samples throughout the dependency.
Indeed, mother has admitted that she used methamphetamine “all day,
every couple of hours.” Mother also admitted that she had been using
methamphetamine for over twenty years, and although she attended a ten-
month in-patient substance abuse treatment from 2002-2003, she was not
able to maintain that sobriety Mother was also incarcerated off and on for
the duration of the dependency, including for drug charges, and was
incarcerated again at the time of trial. Although mother has recently become
sober, it was only while living in a treatment facility and while incarcerated.
She has not proven an ability to maintain her sobriety outside of a
controlled setting, as noted by the juvenile court. Based on this clear and
convincing evidence, the juvenile court did not abuse its discretion in
terminating mother’s parental rights.

¶18 Because we affirm on the substance abuse grounds, we need
not consider whether the juvenile court’s findings justified severance based
upon neglect or time in care pursuant to A.R.S. § 8-533(B)(2), and (B)(8)(a).

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Decision of the Court

See Michael J., 196 Ariz. at 251, ¶ 27. Additionally, mother did not argue
that severance was not in the best interests of the children, and we therefore
do not address the best interest finding. Id. at 249, ¶ 13.

CONLUSION

¶19 For the foregoing reasons we affirm the juvenile court’s
ruling.

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

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