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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACOREE D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.D., C.D., Appellees.

No. 1 CA-JV 21-0053
FILED 9-2-2021

Appeal from the Superior Court in Coconino County
No. S0300JD201900032
The Honorable Elaine Fridlund-Horne, Judge

AFFIRMED

COUNSEL

Coconino County Public Defender’s Office, Flagstaff
By Rhys Campbell
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee Department of Child Safety
 JACOREE D. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani
joined.

T H U M M A, Judge:

¶1 Jacoree D. (Father) challenges the termination of his parental
rights to J.D. and C.D. based on chronic substance abuse and 15-months
time-in-care. Because he has shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Father has a lengthy history of alcohol and substance abuse
involving marijuana, codeine and methamphetamine, along with criminal
convictions. Some of his criminal offenses involved domestic violence
against Amanda H. (Mother), who is not a party to this appeal. In December
2018, Father was placed on probation for two years after he pled guilty to
felony possession of drug paraphernalia -- methamphetamine.

¶3 In January 2019, Father was arrested and charged with
disorderly conduct for yelling at Mother while C.D. was present. In March
2019, Father was arrested on a warrant for violating probation, and police
found methamphetamine in his possession. In June 2019, Father was again
arrested and charged with violating probation. Between arrests, Father
underwent a substance-abuse assessment as a condition of probation and
was diagnosed with amphetamine dependence and stimulant-use disorder.

¶4 Meanwhile, in April 2019, the Department of Child Safety
(DCS) received a report expressing concerns about the welfare of children
in Mother’s care, including J.D. (born in 2008) and C.D (born in 2013), when
other children in her home tested positive for methamphetamine. J.D. and
C.D. were removed from Mother’s care and placed with their maternal
grandfather. Upon removal, C.D. tested positive for methamphetamine.
DCS reported that Father was “not involved with the care of the children
and his whereabouts are unknown.”

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Decision of the Court

¶5 DCS filed a dependency petition in May 2019, alleging Father
neglected and abandoned J.D. and C.D. At that time, Father had not
established paternity of J.D (who was 10 years old), although he did so a
year later. DCS amended the petition to allege incarceration and substance
abuse grounds as to Father. In July 2019, the court found J.D. and C.D.
dependent as to Father (when he did not contest the incarceration and
substance abuse grounds) and adopted a case plan of family reunification.

¶6 While incarcerated during the dependency, Father
participated in drug treatment and parenting classes. DCS noted that he
had not had sufficient contact with J.D. and C.D. to show that he could
safely parent the children, and he had “yet to prove he can remain sober
outside of jail.” Father successfully completed the Exodus program, a 90-
day substance abuse program. However, the urine sample Father provided
after completing that program was positive for THC.

¶7 DCS provided Father various reunification services,
including drug testing, substance abuse treatment, and behavioral health,
visitation and parenting skills services. DCS referred him three times for
substance abuse treatment at Arizona Families First, but two of those
referrals were closed out for lack of contact. Father also missed two
substance abuse tests and, when he did test, his sample was positive for
alcohol. While Father consistently visited J.D. and C.D., he missed eight out
of twelve parenting skills sessions.

¶8 In January 2020, Father relapsed, was evicted from a sober
living home, served two days in jail for violating probation and moved in
with his grandmother. Father later admitted to using methamphetamine in
March 2020. From April to June 2020, Father tested positive six times for
amphetamine or methamphetamine.

¶9 In August 2020, Father completed a 28-day residential
substance abuse program. Then he moved into Oxford House, a sober
living home that does not allow children. Father reported that life stressors
had caused him to use drugs around this time. DCS reported that while
Father “demonstrated sporadic sobriety, he continue[d] to experience
relapses” and he had not resolved safety concerns related to his substance
abuse.

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¶10 In September 2020, the court changed the case plan to
severance and adoption. DCS then moved to terminate the parent-child
relationship between Father and J.D. and C.D. on grounds of chronic
substance abuse and 15-months time-in-care, also alleging that severance
would be in the children’s best interests. See Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(3) & (B)(8)(c) (2021).1

¶11 The severance adjudication was held in early December 2020.
The DCS case manager testified that Father was not “in full compliance
with all of the offered or recommended services listed in the case plan.” She
added that DCS required at least another six-months of sobriety outside of
a controlled environment to show that substance abuse would no longer be
a barrier to reunification.

¶12 The case manager testified that the children were placed
together in a potential adoptive home and had other familial adoptive home
placements available. She added that both children would benefit from
termination because they would have permanency, as well as living in a
drug-free environment without exposure to domestic violence, where their
needs were being met. She testified that the uncertainty of remaining in a
dependency was negatively affecting J.D. and C.D.

¶13 At the time of trial, Father was living at Oxford House with
no date set for him to leave. Father testified that he planned to leave
eventually and move in with his father in a house that was under
construction. Father admitted to using methamphetamine as recently as a
few months before trial.

¶14 After taking the matter under advisement, the court found
that DCS had proven both statutory grounds by clear and convincing
evidence. The court found that, “[g]iven the relapses that had occurred late
in this case after treatment programs were completed, this court finds that
Father would need more than a year of sobriety after his termination from
probation to have confidence that it would be in his children’s best interest
to be returned home.” The court also found that DCS had shown
termination was in the best interests of the children by a preponderance of
the evidence.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶15 This court has jurisdiction over Father’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-120.21(A) and 12-2101(A) and Arizona Rules of Procedure for the
Juvenile Court 103 and 104.

DISCUSSION

¶16 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground set
forth 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
child. 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 if it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

I. Father Has Not Shown The Court Erred In Finding DCS Proved
Chronic Substance Abuse.

¶17 To terminate parental rights based on chronic substance
abuse, a court must find that: (1) the parent has “a history of chronic abuse
of dangerous drugs, controlled substances or alcohol;” (2) “the parent is
unable to discharge parental responsibilities because of” chronic abuse of
controlled substances or alcohol; and (3) “there are reasonable grounds to
believe that the condition will continue for a prolonged and indeterminate
period.” A.R.S. § 8-533(B)(3). The court may consider the parent’s prior
substance abuse, including “the length and frequency of [Father’s]
substance abuse, the types of substances abused, prior efforts to maintain
sobriety, and prior relapses.” Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
287 ¶ 20 (App. 2016). A child’s interest in permanency prevails over a
parent’s uncertain battle with addiction. Id. at 287 ¶ 17.

¶18 “The term ‘parental responsibilities’ is capable of being
understood by persons of ordinary intelligence as referring to those duties
or obligations which a parent has with regard to his child.” Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 378 ¶ 20 (App. 2010). It “does not
‘require that the parent be found unable to discharge any parental
responsibilities but rather that the parent be unable to discharge “the
parental responsibilities.”’” Id. at 378 ¶ 19 (citation omitted). Similarly,
“chronic” drug use is long-lasting, but it does not have to be constant. Id. at

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377 ¶ 16. To determine whether there are reasonable grounds to believe a
parent’s substance abuse will continue for a prolonged indeterminate
period, the court may consider the parent’s ability to rise above addiction
in a non-custodial, unstructured setting, as well as the ability to abstain
from substance use during the case. Id. at 379 ¶ 29. Periods of temporary
abstinence from drugs are insufficient to outweigh a parent’s significant
history of abuse. Id.

¶19 Father argues that the court erred by (1) disregarding the fact
that Mother denied Father access to J.D. and C.D. and (2) disregarding
father’s sobriety by setting an arbitrary period of required sobriety. Father
does not contest that he has a history of chronic substance and alcohol
abuse. Instead, he argues that he could not discharge parental
responsibilities only because Mother denied him access to children, and not
because of his substance abuse.

¶20 Father argues that he was more successful in treating his
substance abuse than the parents in two cases in which parental rights were
terminated. See Raymond F., 224 Ariz. at 375; Jennifer S., 240 Ariz. at 284.
However, the question is not whether Father has been more successful in
his substance abuse treatment than other parents who had their parental
rights terminated, but whether Father’s substance abuse would continue
for a prolonged period of time. The record supports the court’s finding that
his substance abuse would continue for a prolonged, indeterminate period.

¶21 Despite Father’s arguments, reasonable evidence supports
the superior court’s finding that his substance abuse prevented him from
being able to care for J.D. and C.D. before and during the dependency. Since
2003, Father has been arrested many times for alcohol and drug-related
offenses. Before DCS’ involvement, Father did not assert his parental rights
or protect J.D. and C.D. from Mother. It took more than a decade for Father
to establish paternity of J.D. and he did so a year into the dependency.
Father also admitted to neglecting the children because of his substance
abuse.

¶22 Even after Father became engaged in the dependency process,
his abuse of substances continued to render him unable to parent. While he
completed two treatment programs, he failed to consistently and
successfully participate in required services to gain physical custody of the
children. Father also lacked stable housing and was living where he could
not be the custodial parent to the children. He also indicated that the house
he planned to move into had not yet been built. Collectively, the evidence

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Decision of the Court

was sufficient to support the court’s determination that Father could not
discharge his parental duties because of his chronic substance abuse.

¶23 On appeal, Father also argues the court erred by concluding
he would have to demonstrate sobriety for more than one year. Not so.
Father’s four plus months of sobriety preceding trial do not outweigh his
history of substance abuse over many years or his consistent inability to
abstain during this case. On this record, Father has not shown the court
erred in concluding he needed to maintain sobriety for more than a year,
particularly since he relapsed after completing multiple treatment
programs. Cf. Christy C. v. Arizona Dep’t of Econ. Sec., 214 Ariz. 445, 449 ¶ 10
(App. 2007) (noting superior court’s findings that a parent “would have to
show a period of sobriety for at least a year and participate in several
services, particularly as to [her] substance abuse histories”).

¶24 Father has not shown sustained sobriety in a non-custodial,
unstructured setting like that in which he would be expected to raise the
children. He has been able to maintain his sobriety in an inpatient program
and, at least for a time, at a sober living home. But despite being in a sober
living home, Father still tested positive for codeine. The record supports the
court’s finding that Father’s chronic substance abuse will persist for a
prolonged indeterminate period and continue to negatively affect his
parenting abilities. Thus, Father has not shown the court erred in finding
DCS proved this statutory ground by clear and convincing evidence.2

II. Father Has Not Shown the Court Erred In Finding That Severance
Was In the Bests Interests of the Children.

¶25 When a statutory ground is proven, the court must determine
whether termination is in a child’s best interests by a preponderance of the
evidence. A.R.S. § 8–533(B); Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
149–50 ¶ 8 (2018). In doing so, the court must consider the totality of the
circumstances, recognizing that the primary concern is the child’s best
interest in stability and security. Alma S., 245 Ariz. at 150 ¶ 13. Best interests
are proven when the evidence shows that a child would benefit from
severance or would be harmed by a continuation of the parent-child
relationship. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
Best interests may be shown where the child is in a potentially-adoptive

2 Given this conclusion, this court need not (and expressly does not) address
Father’s arguments regarding 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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placement that is meeting the child’s needs. Demetrius L. v. Joshlynn F., 239
Ariz. 1, 4 ¶ 12 (2016).

¶26 Father argues that the court made no specific findings about
harm or benefit of termination of his parental rights on the children. While
the court’s legal conclusions are terse, the findings of fact are sufficient. The
court made extensive, well-supported factual findings and referred to those
to conclude that severance was in the children’s best interests. The record
shows that both children were together in a familial, adoptive placement.
Moreover, the trial evidence included testimony by the DCS case manager
that severance and adoption would be in both J.D. and C.D.’s best interests
because they were in a placement that was meeting all their needs. The case
manager also added that the children would benefit from permanency
because they could live in a drug-free environment free from exposure to
domestic violence. This evidence is sufficient to sustain the court’s decision
that severance is in the best interests of the children.

CONCLUSION

¶27 The order terminating Father’s parental rights to C.D. and J.D.
is affirmed.

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

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