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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LINDY S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, Z.O., E.O., Appellees.

No. 1 CA-JV 19-0385
FILED 6-30-2020

Appeal from the Superior Court in Yavapai County
No. P1300JD201900008

The Honorable Anna C. Young, Judge

AFFIRMED

COUNSEL

Law Office of Florence M. Bruemmer, P.C.
By Florence M. Bruemmer
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 LINDY S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.

P E R K I N S, Judge:

¶1 Lindy S. (“Mother”) appeals the juvenile court’s decision to
terminate her parental rights to Z.O. and E.O. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Z.O. was born in 2016 to Mother and Zechariah O. (“Father”;
collectively “Parents”). Father is not a party to this appeal. Mother began
abusing alcohol and controlled substances at age 19 and continued for
approximately six years. In May 2018, police executed a search warrant on
Parents’ home and found drugs, allegedly stolen weapons, and “dirt and
grime” on the floor. The house had no running water, and Mother could
not recall when she last bathed Z.O. Mother’s physical appearance
resembled a methamphetamine user with “sores on her face, and pale
sunken skin.” Indeed, Mother admitted to “parachuting”
methamphetamine that morning and to ingesting methamphetamine “up
to six times a day,” including twice the day before. The Department of Child
Safety (DCS) removed Z.O. and placed the child with her paternal
grandparents.

¶3 DCS filed a dependency petition, alleging Mother’s inability
to parent due to substance abuse and a lack of safe and secure housing. DCS
referred Mother for random urinalysis and Terros substance abuse
treatment. Providers at Terros diagnosed Mother with severe
amphetamine-type substance abuse disorder, severe alcohol use disorder,
and generalized anxiety disorder. Terros initially described her motivation
to change to be “low and precontemplative.” Mother participated in
services at the beginning but missed drug tests in June 2018. Mother also
admitted that she still used methamphetamine despite negative test results.
After completing intensive outpatient therapy in August 2018, Mother
relapsed and did not seek inpatient treatment.

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Decision of the Court

¶4 E.O. was born in January 2019 exposed to amphetamines and
MDMA or “ecstasy.” For that reason, and because of Mother’s observed
failure to bond and care for E.O. while in the hospital, DCS removed E.O.
from Mother's care and placed the child with her paternal grandparents.
DCS petitioned to find E.O. dependent and Mother pled no contest. Mother
then entered inpatient drug treatment at Scottsdale Recovery Center.

¶5 In June 2019, DCS moved to terminate Mother’s parental
rights to Z.O. and E.O., based on neglect and substance abuse. The juvenile
court held a severance hearing in September 2019.

¶6 At the hearing, Mother’s DCS case manager testified that
Mother failed to establish sobriety over the course of the dependency. The
case manager noted that Mother graduated from an intensive outpatient
program in August 2018 and then relapsed but never sought help, despite
her pregnancy. The case manager also testified about Mother’s admitted
methamphetamine use in April and May 2019 and noted that Mother tried
to hide this relapse by diluting her test materials. She still tested positive
for methamphetamine over this period. The case manager explained that
while Mother had periods of sobriety during dependency, a relapse always
followed. She also noted that DCS provided various services including
Arizona Families FIRST, Terros, counseling, random urinalysis, and
supervised visitation. Finally, she testified that, despite Mother’s
participation in some services, DCS did not believe Mother had changed
her behavior sufficiently to parent safely.

¶7 As to the placement, the case manager testified that the
paternal grandparents were an adoptive placement and that the children
were adoptable. Further, she testified that adoption would be in the best
interest of the children as they would receive stability if adopted and be at
risk of developmental delays without the permanence of adoption.

¶8 Mother testified that she had been sober for 81 days from any
illegal substance or alcohol, and about 100 days from methamphetamine at
the time of trial. She noted that she lacked housing for Z.O. and E.O. but
intended to find new housing after completing inpatient treatment. Mother
called the Chief Operating Officer of the Scottsdale Recovery Center to
testify that she was heavily engaged in inpatient programming. This
includes “firm boundaries” around off-site activity that require Mother to
check-in with a behavioral health technician. He also shared his belief that
Mother was in the contemplative stage of recovery and that her April
through May use was a brief lapse rather than a relapse, though he
admitted to Mother’s history of failing to maintain sobriety “without those

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firm boundaries.” Ultimately, he testified that he would be comfortable
releasing Mother the day of trial “[w]ith the plan that’s already been
created.”

¶9 The court terminated Mother’s parental rights on three
grounds: neglect, substance abuse, and six-months’ time-in-care. The court
found that Mother had failed to provide “supervision, food, clothing,
shelter, or medical care” to Z.O., noting that DCS removed her from a home
that contained drugs, allegedly stolen weapons, and filth. The court also
found that Mother had no stable housing for either child at the time of trial.
Further, the court found that Mother had failed to maintain consistent
sobriety. Finally, the court noted that both Z.O. and E.O. were born
substance exposed because of Mother’s substance abuse. Mother timely
appealed.

DISCUSSION

¶10 We review the termination of parental rights for an abuse of
discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). This court will uphold the juvenile court’s findings of fact “if
supported by adequate evidence in the record.” Christy C. v. Ariz. Dep’t
Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App. 2007) (quoting State v. Smith, 123
Ariz. 243, 247 (1979)). “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

I. Statutory Ground

¶11 To terminate the parent-child relationship, the juvenile court
must find at least one statutory ground under A.R.S. § 8-533(B) by clear and
convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). The
court must also find by a preponderance of the evidence that severance
would be in the best interests of the child. A.R.S. § 8-533(B); Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018).

¶12 A court may terminate a parent’s rights based on substance
abuse when “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 indefinite period.” A.R.S. § 8-
533(B)(3). “[D]rug abuse need not be consistent to be considered chronic.”
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010).
“[A] parent’s ‘temporary abstinence from drugs and alcohol does not

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Decision of the Court

outweigh her . . . consistent inability to abstain during the case.” Jennifer S.
v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016) (quoting Raymond
F., 224 Ariz. at 379, ¶ 29). Chronic abuse is abuse that “last[s] a long time,
[is] long-continued, lingering, and inveterate.” Raymond F., 224 Ariz. at 377,
¶ 16 (quoting Chronic, Oxford English Dictionary (compact ed. 1971)).
Further, “a child’s interest in permanency must prevail over a parent’s
uncertain battle with drugs.” Jennifer S., 240 Ariz. at 287, ¶ 17.

¶13 Mother argues that reasonable evidence did not prove her
substance abuse would continue for a prolonged indeterminate period. She
also argues that we should favor the COO’s opinion that Mother would
ultimately succeed over her case manager’s opinion that her condition
would likely continue. We decline to reweigh the evidence. Jesus M., 203
Ariz. at 280, ¶ 4.

¶14 Mother has abused various substances since the age of 19. She
attempted over the course of the dependency to remain sober but relapsed
several times for extended periods. The COO of Scottsdale Recovery Center
admitted that before entering the Center’s “firm boundaries,” Mother could
not achieve sobriety. Her latest month-long relapse occurred just three
months before the termination hearing. While the COO disagreed with the
DCS case manager on the likelihood of relapse in the near future, Mother’s
history provided reasonable evidence for the juvenile court’s finding. See
Raymond F., 224 Ariz. at 378, ¶ 29 (finding reasonable belief that chronic
drug abuse would continue where parent “had been unable to rise above
his addiction in a non-custodial and unstructured setting”) (emphasis added).

¶15 Because we affirm the juvenile court’s order on chronic
substance abuse grounds, we need not consider the juvenile court’s other
grounds for termination. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
251, ¶ 27 (2000).

II. Best Interests

¶16 Once a court has found at least one statutory ground to
terminate, it may “presume that the interests of the parent and child
diverge.” Kent K., 210 Ariz. at 286, ¶ 35. We thus focus our inquiry at the
best interests stage on “the interests of the child as distinct from those of the
parent.” Id. at 285, ¶ 31. The “child’s interest in stability and security” is the
touchstone of our inquiry. See id. at 286, ¶ 34. Termination of parental 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.,

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Decision of the Court

245 Ariz. at 150, ¶ 13. The juvenile court must consider the totality of the
circumstances existing at the time of the severance. Id.

¶17 Here, the court found that termination of rights would give
the children stability and protect them from substance abuse. The court also
found that failing to terminate Mother’s rights would detrimentally affect
the children “because of risk of exposure to substance abuse and neglect”
and a lack of stability. Mother’s admitted history of relapse, as well as her
current living situation, which does not allow children, support this
finding. Further, the DCS case manager testified that Z.O. and E.O. were in
an adoptive placement that was meeting their needs. See Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004). The juvenile court did
not abuse its discretion in finding that termination was in Z.O. and E.O.’s
best interests.

CONCLUSION

¶18 We affirm.

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

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