Megan E. v. Dcs, H.E.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MEGAN E.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, H.E.,
Appellees.

No. 1 CA-JV 18-0466
FILED 6-13-2019

Appeal from the Superior Court in Maricopa County
No. JD34479
The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender's Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee DCS
 MEGAN E. v. DCS, H.E.
Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.

J O H N S E N, Judge:

¶1 Megan E. ("Mother") appeals the superior court order
severing her parental rights to her son ("Child"), who was born in March
2014. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother, who was born in 1993, began using heroin at age 15.
She testified in these proceedings that she used heroin daily until 2010,
when she began taking Suboxone without a prescription.1 According to
other accounts she gave, she did not switch to Suboxone from heroin until
2012 or 2013. Mother eventually developed a volatile relationship with
Child's father.

¶3 The Department of Child Safety ("DCS") took Child into
custody in June 2017 and filed a dependency petition alleging Mother was
unable to parent due to substance abuse and mental health issues. 2 The
superior court found Child dependent as to Mother in September 2017.

1 Suboxone is a prescription drug approved by the Food and Drug
Administration for treatment of people with opioid-use disorders. It
produces effects such as euphoria or respiratory depression, but at much
lower and safer levels than produced by opioids. It is prescribed to reduce
withdrawal symptoms and cravings associated with opioids, but has its
own side effects, including cravings, inability to sleep, distress and
irritability. Because of its opioid-like effects, it can be misused and can lead
to dependence. See Buprenorphine, Substance Abuse and Mental Health
Services Administration (May 7, 2019),
https://www.samhsa.gov/medication-assisted-
treatment/treatment/buprenorphine.

2 DCS also filed a dependency petition against Child's father, but his
parental rights are not at issue in this appeal.

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Decision of the Court

¶4 The court adopted a case plan of reunification, and DCS
offered Mother case management, a psychological evaluation, substance-
abuse assessment and treatment, drug testing, and supervised visitation.
Mother completed a substance-abuse assessment with TERROS in July
2017, where an evaluator recommended that she complete a medically
supervised detoxification, then participate in intensive outpatient
treatment.

¶5 Mother did not follow the TERROS recommendations, but
instead sought services from Community Bridges, Inc., ("CBI"), where she
presented with symptoms of substance abuse that included homelessness
and inability to fulfill home and work obligations. Mother reported to CBI
that she had been buying Suboxone "off the streets," and CBI diagnosed her
with opioid-use disorder. She agreed to a treatment plan that included a
psychological evaluation, medically managed Suboxone treatments,
nursing services, drug and alcohol screening, intensive outpatient therapy,
case management, peer support services, and individual counseling. As
part of her Suboxone treatment program, Mother signed a patient
agreement affirming that she understood the program would be a
"detoxification program rather than a maintenance program, and is
designed to appropriately wean me off of all prescribed and illicit
substances."

¶6 Through CBI, Mother received prescriptions for Suboxone for
most of July 2017 through September 2018. At the start of her treatment in
July 2017, CBI prescribed her 2 mg of Suboxone per day. In September 2017,
she told CBI that she was not then "ready to detox," and by early October
2017, her dosage had increased to 4 mg and then to 8 mg per day by the end
of October. According to a treatment note dated November 22, 2017, CBI
"[d]iscussed a taper schedule over the next two months" with Mother.
Further: "Patient is aware of risk of being on Suboxone as well as the risk of
dependence and addiction." In December 2017, Mother reported to CBI that
her health insurance had lapsed and she was no longer able to pay for her
Suboxone prescriptions. In January 2018, she reported to CBI that she had
been buying Suboxone off the street. She also reportedly told CBI she had
used heroin as recently as August 2017 and that she had spent a lot of time
craving opioids, which interfered with her work and home obligations.
Mother resumed her prescription Suboxone treatment through CBI later in
January 2018, at which point her dosage was 8 mg. As of March 2018, her
dosage had increased to 12 mg, but Mother expressed a willingness to
decrease her dosage because a prior problem with tooth pain had subsided.
In May 2018, when her dosage was 10 mg, a medical provider discussed
with Mother a "taper schedule" as well as the risk of dependence and

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addiction associated with being on Suboxone, but as of September 2018,
Mother's dosage remained at 10 mg.

¶7 As part of her CBI program, Mother was supposed to attend
intensive outpatient therapy three times per week. Although she generally
complied with therapy attendance requirements, she attended only one
session in July 2017, three sessions in November 2017 and three sessions in
December 2017. Ultimately, however, Mother successfully graduated from
CBI's intensive outpatient substance-abuse program. She then began a
standard program of outpatient therapy that met once a week, but she
missed many of the sessions – for example, she attended just once in March
and once in April 2018. In the meantime, Mother struggled to find stable
housing and remained homeless for an extended period during the
dependency.

¶8 In June 2018, the superior court granted DCS's request to
change the case plan to severance and adoption, and DCS moved to sever
Mother's parental rights.

¶9 At the severance hearing, the court heard testimony from
Mother, the DCS specialist and Mother's counselor. Mother testified she
was currently receiving Suboxone through CBI and that it had been six
months since she last bought the medication off the street. Although CBI
records contained a report that Mother had said she last used heroin in
August 2017, Mother testified she had not used heroin for seven or eight
years. She admitted that TERROS recommended that she undergo
detoxification from Suboxone, but testified she did not need to do so.

¶10 The DCS specialist testified that Mother behaves
appropriately during her visits with Child and that Child had lived with
his maternal grandfather since the beginning of the dependency. The DCS
specialist testified the grandfather can meet Child's needs and was willing
to adopt him. She also testified the grandfather would agree to continue to
supervise contact between Mother and Child.

¶11 The superior court granted DCS's motion, severing Mother's
parental rights under Arizona Revised Statutes ("A.R.S.") section
8-533(B)(3) (2019) (prolonged drug abuse) and -533(B)(8)(c) (15 months'
time in care).3 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2019),

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

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12-120.21(A)(1) (2019), -2101(A)(1) (2019) and Arizona Rule of Procedure for
the Juvenile Court 103(A).

DISCUSSION

¶12 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the court
must find by a preponderance of the evidence that termination is in the
child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
"Because the juvenile court is in the best position to weigh evidence and
assess witness credibility, we accept [that] court's findings of fact if
reasonable evidence and inferences support them, and will affirm a
severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).

¶13 Under § 8-533(B)(3), termination of parental rights may be
ordered when "the parent is unable to discharge parental responsibilities
because of . . . a history of chronic abuse of . . . controlled substances . . . and
there are reasonable grounds to believe that the condition will continue for
a prolonged indeterminate period." 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). "Chronic" substance abuse is long lasting, but not necessarily
continuous. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16
(App. 2010). Temporary abstinence from a controlled substance does not
generally outweigh a parent's "significant history of abuse" or "consistent
inability to abstain during [the] case," and "a child's interest in permanency
must prevail over a parent's uncertain battle with" substance abuse. Jennifer
S. v. Dep't of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016) (quotation
omitted).

¶14 Mother does not challenge the superior court's finding that
DCS made reasonable efforts to provide her with rehabilitative services.
Instead, she contests the court's findings that she is unable to discharge her
parental responsibilities because of her substance abuse and that her
substance abuse will continue for a prolonged indeterminate period.
Specifically, Mother argues the court misunderstood her Suboxone
treatment and therefore failed to adequately assess her recovery progress.
In making this argument, Mother contends that by the time of the severance
hearing, her drug dependency had been in remission for "some time."

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¶15 Mother's use of Suboxone was not in remission, however.
According to the record before the superior court, Mother's Suboxone
treatment was supposed to be part of a "detoxification program rather than
a maintenance program," and Mother's medical records included repeated
concerns about her prolonged use of the drug. But during her year of
intensive treatment, her daily dose of Suboxone increased. In support of
her contention about remission, Mother points to treatment protocols that
she asserts permit use of Suboxone indefinitely (even over a patient's
lifetime) as an effective means of treating opioid addiction and that warn
against assessing a patient's recovery progress based merely on Suboxone
dosage or length of treatment. Mother, however, did not put these
materials before the superior court. See Conant v. Whitney, 190 Ariz. 290, 293
(1997) (waiver of argument not raised in superior court). In any event,
Mother's argument is effectively a request that this court reweigh the
evidence, which we will not do. See Jordan C. v. Ariz. Dep't of Econ. Sec., 223
Ariz. 86, 93, ¶ 18 (App. 2009).

¶16 The record contains substantial evidence supporting the
superior court's decision to sever Mother's rights. Mother has a significant
history of using heroin and Suboxone. Nevertheless, she refused to
undergo detoxification from Suboxone as TERROS recommended. Instead,
she engaged in medication-assisted Suboxone treatments off and on for
more than a year, even though the treatment was supposed to be temporary
and was designed to allow her to taper off all medication.

¶17 At trial, Mother testified that under the CBI program, whether
she would taper off Suboxone was "up to" her. She conceded that CBI
raised a "taper schedule" with her in July 2018, after about a year of
treatment, but asserted that she was not ready to "taper" and did not know
when she would be able to do so. Mother also acknowledged having an
anger problem and admitted that she did not complete a recommended
"domestic violence component" of counseling and that she punched her
stepmother during an altercation in January 2017. The record shows that in
a counseling session, she reported experiencing cravings for opioids and
that certain situations triggered her desire to use drugs. She also reported
issues with controlling her anger, anxiety and negative emotions, as well as
issues with coping with stress. This evidence sufficiently supported the
superior court's finding that Mother's continued drug use impaired her
ability to parent.

¶18 Mother also argues DCS failed to prove by a preponderance
of the evidence that severance was in Child's best interests. Mother points
to evidence that she is bonded with Child and that she was engaging in

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services. She also argues that severing her rights would not change Child's
circumstances because he would continue living with the maternal
grandfather, who would permit Child to continue his relationship with
Mother.

¶19 Termination of a parent's rights "is in the child's best interests
if either: (1) the child will benefit from severance; or (2) the child will be
harmed if severance is denied." Alma S. v. Dep't of Child Safety, 245 Ariz.
146, 150, ¶ 13 (2018). One of the factors that may favor termination "is the
immediate availability of an adoptive placement." Audra T. v. Ariz. Dep't of
Econ. Sec., 194 Ariz. 376, 377 (App. 1998).

¶20 The record shows that Mother struggled to find stable
housing and remained homeless for an extended period during the
dependency. At the time of the severance hearing in November 2018, she
was living rent-free in a home owned by her grandparents that contained
piles of boxes that created an environment that would not be safe for Child.
She reported to CBI in January 2018 that she had craved opioids much of
the time and that those cravings interfered with her obligations at work and
at home. At the same time, the court found Child was in an adoptive
placement that was meeting all his needs and that severance would benefit
Child by providing him with permanency and stability. See Jennifer S., 240
Ariz. at 287, ¶ 17.

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 MEGAN E. v. DCS, H.E.
Decision of the Court

¶21 The evidence recited above supports the superior court's
findings that DCS proved by a preponderance of the evidence that
termination is in Child's best interests.

CONCLUSION

¶22 The record fully supports the superior court's findings and
conclusions. We affirm its order severing Mother's parental rights.4

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

4 Because substantial evidence supports the court's decision to sever
Mother's rights under A.R.S. § 8-533(B)(3), we need not address Mother's
arguments relating to the 15 months' out-of-home placement ground for
severance. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002).

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