Steven P., Ashley P. v. Dcs, A.P.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEVEN P., ASHLEY P., Appellants,

v.

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

No. 1 CA-JV 20-0123
FILED 10-15-2020

Appeal from the Superior Court in Maricopa County
No. JD18092
The Honorable Michael Gordon, Judge

AFFIRMED

COUNSEL

Law Office of Ed Johnson, PLLC, Phoenix
By Edward D. Johnson
Counsel for Father

David W. Bell
Counsel for Mother

Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Department of Child Safety
 STEVEN P., ASHLEY P. v. DCS, A.P.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Steven P. (“Father”) and Ashley P. (“Mother”) (collectively:
“Parents”) appeal the juvenile court’s order terminating their parental
rights to A.P., born in November 2011. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In March 2018, DCS received a report that stitches on A.P.’s
chin became infected after Parents failed to have them removed. DCS
visited the home and observed both dangerous and unsanitary conditions.
In April, DCS followed up by asking Parents and the paternal uncle who
was living with them to participate in drug testing. Mother tested positive
for amphetamine, while Father tested positive for methamphetamine and
THC.

¶3 DCS then filed a dependency petition against Parents. As to
Mother, DCS alleged neglect due to mental health issues, substance abuse,
and failure to provide basic needs; and as to Father due to substance abuse
and failure to provide basic needs. DCS placed A.P. with her maternal aunt
and uncle, with whom she has resided since. As conditions for A.P.’s return,
DCS required Parents to engage in substance abuse and mental health
treatment, and to provide a safe home.

¶4 DCS referred Father to TERROS for random urinalysis;
following his intake TERROS recommended Father receive intensive
outpatient treatment. TERROS closed Father out of his referral for lack of
contact in August, but he reengaged in services in September and engaged
inconsistently in treatment until being closed out again in March 2019.
Father admitted to using methamphetamine and marijuana throughout this
period, and he failed to test until mid-2019.

¶5 DCS also referred Mother for substance abuse treatment with
TERROS in April 2018; TERROS discharged her for lack of contact in
August. DCS rereferred Mother to TERROS in September 2018 for
outpatient treatment and she engaged in drug testing infrequently through

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June 2019. She tested positive for methamphetamine in October and
November 2018 and January 2019. She tested positive for
methamphetamine again in July and August 2019 after DCS again referred
her for testing.

¶6 DCS moved to terminate Parents’ relationship with A.P. in
July 2019, citing grounds of substance abuse and fifteen-months time in care
as to both Parents. The juvenile court ordered that DCS refer Parents for a
psychological evaluation prior to trial.

¶7 Dr. Alex Levitan evaluated Parents in September 2019. He
diagnosed Father with unspecified cannabis abuse disorder and
unspecified substance abuse disorder. His prognosis for Father’s
improvement was “poor, given his substance abuse history, his current
substance use, and the lack of treatment progress noted.” Because Father
was only participating in “standard outpatient therapy” for substance
abuse, Dr. Levitan recommended Father be “reassessed” to determine his
correct level of treatment, and further recommended continued drug
testing.

¶8 Dr. Levitan diagnosed Mother with, among other things,
unspecified stimulant and cannabis disorder. His prognosis for Mother was
“guarded” given her limited treatment. He recommended that Mother
engage in individual counseling to address her substance abuse.

¶9 In January 2020, Mother twice tested positive for
methamphetamine after taking hair-follicle tests, though she tested
negative through urinalysis. Mother maintained that she had been sober
since at least July 29, 2019. Father did not test positive for
methamphetamine or marijuana but began testing positive for alcohol that
month.

¶10 The court held three days of termination hearings in February
2020. DCS first called Dr. Tonya Mitchell, a forensic toxicologist, to testify
concerning Mother’s positive tests from July and August 2018 and January
2020. Dr. Mitchell rejected Mother’s claim that her legitimate medications
resulted in false positives. Concerning the July and August tests, Dr.
Mitchell noted that, “in order for [methamphetamine and marijuana
metabolites] to increase in concentration on the August the 2nd test,
[Mother] would’ve had to use methamphetamine and marijuana after . . .
July the 29th.” She also testified that not only would Mother’s disclosed
prescriptions not produce a false positive test for methamphetamine, drugs
that would produce such a test “are rarely prescribed.” As for the January

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tests, Dr. Mitchell opined that they indicated Mother had used
methamphetamine in the three months prior to the test.

¶11 Mother testified about her prior misstatements to TERROS
about her methamphetamine use, specifically that she had previously
stated that positive tests from 2018 could be explained through medications
despite using methamphetamine at the time. Mother also testified that
despite her positive hair follicle results, she had not used
methamphetamine since July 28, 2019.

¶12 Father testified to his current alcohol use, despite knowing
“the expectation was that [Father] had to be completely sober of all
substances.” He testified he had not used marijuana for the four months
preceding trial, and he had only started drinking to cope with the stress of
the trial.

¶13 Dr. Levitan testified on behalf of DCS. Given Mother’s denial
of methamphetamine use despite testing positive in January, he testified
that he downgraded Mother’s prognosis from guarded to poor. He noted
that his diagnosis considered A.P.’s special needs, which contributed to the
poor diagnosis.

¶14 Dr. Levitan also testified that Father’s prognosis to parent
successfully was poor based on his continued alcohol use and history of
switching substances. He testified that sobriety should be present in both
parents for at least twelve months to have confidence that it would persist.
On cross-examination Dr. Levitan conceded that, based on testing from the
week before trial began, Father had not been drinking daily, and that while
Dr. Levitan still had substance abuse concerns, Father was making
progress. That said, Dr. Levitan affirmed that despite his progress, Father’s
prognosis was poor.

¶15 DCS Safety Specialist Liu testified that DCS offered Parents
substance abuse treatment, including inpatient services that both Parents
refused, and drug testing.

¶16 In March 2020, the court issued a sixteen-page minute entry
terminating Parents’ rights to A.P on both grounds of fifteen-months time
in care and substance abuse. The court found that severance was in A.P.’s
best interest because A.P. is in a placement that is both adoptive and meets
all of her needs. Parents timely appealed.

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DISCUSSION

¶17 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 of
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).

¶18 “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State
support its allegations by at least clear and convincing evidence.” Santosky
v. Kramer, 455 U.S. 745, 747-48 (1982). “[S]uch a standard adequately
conveys to the factfinder the level of subjective certainty about his factual
conclusions necessary to satisfy due process.” Id. at 769.

I. Statutory Ground

¶19 To terminate the parent-child relationship, the juvenile court
must find parental unfitness based on 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).

¶20 The juvenile court may terminate parental rights based on
chronic 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). The superior court may find a parent’s
substance abuse issue will continue based upon such evidence as the
parent’s history of drug use and the parent’s failure to complete or engage
in offered services. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 378-
79, ¶ 26 (App. 2010). “[D]rug abuse need not be consistent to be considered
chronic.” Id. at 377, ¶ 16. “[A] parent’s temporary abstinence from drugs
and alcohol does not 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). Importantly, “a child’s
interest in permanency must prevail over a parent’s uncertain battle with
drugs.” Jennifer S., 240 Ariz. at 287, ¶ 17. Moreover, a parent’s failure to
abstain from substances despite a pending severance is “evidence [the

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parent] has not overcome [the] dependence on drugs and alcohol.”
Raymond F., 224 Ariz. at 379, ¶ 29.

¶21 With respect to Mother, the juvenile court found Mother has
“a long history of substance abuse,” which “contributes to her inability to
care for [A.P.].” The court found credible Dr. Mitchell’s opinion that
Mother’s hair follicle test demonstrated a lack of complete abstinence from
drugs in the weeks immediately preceding the termination hearing.
Although the court acknowledged Mother’s “recent engagement” in
treatment and testing, after weighing the evidence it found “clear and
convincing evidence that her substance abuse will continue for a prolonged
and indeterminate time.”

¶22 Concerning Father, the juvenile court acknowledged that
Father had begun to abstain from methamphetamine and marijuana but
noted that it could not “ignore the length of his substance abuse history”
and his recent decision to switch “his substance of choice to alcohol.” Based
in part on Father’s use of alcohol during one day of the hearing itself, which
“demonstrate[d] the depth of the substance abuse problem,” the court
found that Father’s substance abuse “will continue for a prolonged and
indeterminate period of time.”

¶23 As detailed above, sufficient evidence presented to the
juvenile court supports these findings as to both Parents on the chronic
substance abuse ground. We will not reweigh this evidence. See Jesus M.,
203 Ariz. at 280, ¶ 4.

¶24 Because evidence supports the juvenile court’s termination of
both Parent’s rights based on chronic substance abuse ground, this court
“need not address [their] claims pertaining to the other grounds” for
severance. Id. at ¶ 3.

II. Best Interests

¶25 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.” See 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. v.
Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2008). A child benefits from
termination when the child is adoptable or a current adoption plan is in

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place. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12 (2016). The juvenile
court must consider the totality of the circumstances existing at the time of
the severance. Alma S., 245 Ariz. at 150, ¶ 13.

¶26 Here, the juvenile court found that A.P. is living with her
maternal aunt and severance would make her adoptable. It is also the least-
restrictive option. Because maternal aunt and maternal grandmother have
a close relationship, A.P. can visit with her siblings who live with maternal
grandmother while still residing in a safe and stable home. The juvenile
court further found that maternal aunt is capable of meeting A.P.’s special
needs. Behavioral health providers characterized A.P. as “delayed” and
“having behaviors characteristic of a much younger child.” Maternal aunt
meets these special needs and meets all of A.P.’s physical, social,
educational, medical, psychological, and emotional needs. Substantial
record evidence supports these findings, and we find no error.

CONCLUSION

¶27 We affirm.

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