Kathryn L. v. Dcs, S.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KATHRYN L., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.L., Appellees.

No. 1 CA-JV 21-0280
FILED 6-28-2022

Appeal from the Superior Court in Maricopa County
No. JD37573
The Honorable Michael F. Gordon, Judge

AFFIRMED

COUNSEL

John L. Popilek, PC, Phoenix
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
 KATHRYN L. v. DCS, S.L.
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 Kathryn L. (“Mother”) appeals the superior court’s
termination of her parental rights to her daughter, S.L. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2019, police responded to a call regarding an ongoing
domestic violence incident involving Mother and S.L.’s father (“Father”).
Father fled the scene before police arrived. Mother had a broken nose and
was hospitalized. The Department of Child Services (“DCS” or “the
Department”) received a report that seven-year-old S.L. and her two older
sisters1 (collectively, “the children”) were present during the incident and
that the home’s water had been turned off.

¶3 In June 2019, DCS received a report that Father had
threatened to kill the children’s maternal grandmother (“Grandmother”)
for calling the police regarding the April incident. DCS also learned that
the children were left with Grandmother. After the parents had not been
seen in ten days, DCS took temporary custody of the children and placed
them with their maternal grandfather. The children moved to a licensed
group home in November 2019 before being placed with Grandmother in
January 2020.

¶4 In June 2019, DCS filed a petition alleging the children were
dependent with respect to Mother due to her inability to meet their basic
needs and the parents’ long history of domestic violence. The following
week, Mother appeared for the preliminary protective hearing where the
court ordered that the children remain in DCS custody. The court also
directed Mother to begin individual counseling with a domestic violence
component as well as rule-out substance abuse testing to determine if drug
treatment would be necessary.

1 S.L.’s siblings are not the subject of this appeal.

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¶5 The court found the children dependent as to Mother in
September 2019 after she failed to appear at the dependency hearing. The
court also approved a case plan of family reunification.

¶6 Mother initially participated in supervised visits with the
children and attended parent aide classes. However, the visits stopped
altogether when Mother moved to Chicago from May to September of 2020.
Mother testified that she moved for work, as she could not find
employment in Phoenix due to the COVID-19 pandemic. She did not stay
in regular contact with the children while out of state.

¶7 Two months after Mother returned to Arizona, DCS
requested the court change the children’s case plan to severance and
adoption. At that point, Mother had not completed any of the services
requested by DCS, nor had she complied with court-ordered drug testing.
DCS filed a motion to terminate Mother’s parental rights in November 2020,
alleging nine- and fifteen-months in out-of-home placement. Mother began
drug testing that same month. She also enrolled in—and subsequently
completed—the TERROS Substance Use Treatment Program.

¶8 The termination adjudication originally was set for March
2021. DCS requested the court continue the trial so it could evaluate
whether Mother’s recent engagement with services would “result in
sustained progress towards reunification.” The court granted the motion
and continued the trial to June 2021. After Mother tested positive for
methamphetamine, DCS decided to maintain its request for termination.
The superior court held trial on June 2, June 3, and July 29, 2021.

¶9 In September 2021, the court entered an order terminating
Mother’s parental rights. Mother appeals.

DISCUSSION

¶10 DCS moved to terminate Mother’s parental rights under, inter
alia, A.R.S. § 8-533(B)(8)(c), which permits termination when the
Department has proved by clear and convincing evidence that:

The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order . . ., the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home
placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental
care and control in the near future.

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Decision of the Court

¶11 The superior court found there was a “substantial likelihood
that Mother [would] be incapable of exercising proper parental care and
control in the near future” due to her failure to engage in domestic violence
counseling and her uncertain commitment to sobriety. As the trier of fact,
the superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).
Accordingly, we review the termination order in the light most favorable to
sustaining the court’s decision and will not disturb the order if it is
supported by any reasonable evidence. Denise R. v. Ariz. Dep’t of Econ. Sec.,
221 Ariz. 92, 95, ¶ 10 (App. 2009). “Under any of the grounds enumerated
in § 8–533(B), the court must also consider the best interests of the child.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
Mother has not challenged the superior court’s findings that termination of
her parental rights was in S.L.’s best interests, that DCS made diligent
reunification efforts, or that S.L. had been in out-of-home care for fifteen
months or longer. We therefore consider those issues waived. Crystal E. v.
Ariz. Dep’t of Econ. Sec., 241 Ariz. 576, 577, ¶ 5 (App. 2017).

I. MOTHER REFUSED TO ENGAGE IN DOMESTIC VIOLENCE
SERVICES.

¶12 DCS initially became involved after the domestic violence
incident in which Father broke Mother’s nose. Mother testified that Father
was abusive throughout the duration of their 22-year relationship. S.L.
reported witnessing Father hit and choke Mother, as well as drag her out of
the house on multiple occasions. Father’s abuse also extended to the
children. S.L. stated that Father was scary, had a “demon side,” and hit her
and her sisters when he was angry. She also shared that Mother did not
intervene when Father hit her.

¶13 Mother argues that S.L. is no longer at risk of being exposed
to domestic violence or being a victim. She notes that at the time of trial,
she had not been involved in a domestic violence incident in nearly two
years. Furthermore, DCS did not present evidence of domestic violence
between Mother and any person other than Father. Mother also notes that
she is in a healthy new relationship.

¶14 The court acknowledged Mother’s progress but lacked
confidence that she had “the tools to recognize and understand the control
dynamics of domestic violence.” Reasonable evidence supports this
conclusion. Despite repeated urging by DCS, Mother refused to engage in
domestic violence counseling. She only recently acknowledged the abusive

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Decision of the Court

nature of her 22-year relationship and admitted to refusing services due to
her shame. At trial, she re-asserted her belief that she does not need
domestic violence counseling. Mother also failed to complete parent aide
services, which would have provided her with tools to enhance her
protective parenting capabilities.

¶15 Mother argues that her failure to engage in domestic violence
counseling does not prove she is presently unfit to care for S.L. In support
of this assertion, she cites to Donald W. v. Department of Child Safety, 247 Ariz.
9 (App. 2019). In Donald W., DCS placed the child in out-of-home placement
and filed a dependency petition without conducting an investigation. Id. at
18, ¶ 28. The petition did not allege any facts to support DCS’s conclusion
that the appellant neglected his child. Id. We determined that nothing in
the record supported a finding that the child was or had ever been
dependent as to the appellant. Id. at 18–19, ¶¶ 29–30. That is not the case
here. In S.L.’s case, DCS alleged specific facts in the dependency petition,
gave Mother instructions to address its concerns, and presented evidence
that Mother failed to comply. Unlike in Donald W., here, the court’s decision
to place S.L. in out-of-home placement was not based on a “[f]actually
[d]eficient and [u]nsupportable” dependency petition. Id. at 18, ¶ 27.

¶16 Mother claims that the absence of domestic violence incidents
in the two years preceding trial proves her fitness to care for S.L. But
Mother’s DCS case manager testified that leaving the abusive relationship
was the start to resolving Mother’s issues with domestic violence, not the
fix. The case manager also expressed concern regarding Mother’s
unaddressed trauma due to the long duration of the abusive relationship.
Finally, the case manager stated that family counseling would not be
possible until Mother underwent individual counseling.

¶17 DCS asked Mother to complete domestic violence counseling
on multiple occasions. By the time of trial, S.L. had been in out-of-home
placement for nearly two years. Mother did not participate in counseling.
Accordingly, Mother has failed to show where the superior court erred in
finding she “substantially neglected to remedy the circumstances that
cause[d] SL to be out of care.”

II. MOTHER TESTED POSITIVE FOR METHAMPHETAMINE TWO
MONTHS BEFORE TRIAL.

¶18 The superior court found there was a substantial likelihood
that Mother would be incapable of exercising proper parental care and
control in the near future due to her drug abuse. Specifically, the court

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found Mother’s commitment to sobriety “short-lived, untested, and
undermined by her dishonesty.”

A. Short-Lived and Untested Sobriety

¶19 Mother received a referral for TERROS in June 2019 but did
not show up for her intake appointment and was later closed out of the
program. She was given a second referral in February 2020, but again
closed out for lack of participation. Mother also failed to comply with two
court orders to complete hair follicle and urinalysis testing. She did not
take her first drug test until November 2020, nearly seventeen months after
S.L. was removed from her care. However, all of her urinalysis tests since
then yielded negative results, and she completed TERROS in April 2021.

¶20 DCS’s concerns regarding Mother’s sobriety stemmed from
the results of her hair follicle tests. Mother submitted hair follicles for
testing in December 2020, March 2021, and April 2021. All three samples
tested positive for methamphetamine. It was not until May 2021, just one
month before the trial, that Mother produced a negative hair follicle test.

¶21 At trial, Mother’s DCS case manager testified that a person
should demonstrate sobriety for six months before the Department no
longer considers their substance abuse an ongoing present concern. Mother
argues that there is no evidence in the record that she used
methamphetamine in the seven months immediately preceding the June
2021 trial. But her hair follicles tested positive for methamphetamine in
March and April of 2021, indicating use within the previous 90 days.
Mother offered an innocent explanation for her positive results, but the
superior court resolved this conflict against her. Because that court is
uniquely situated to resolve conflicts in the evidence, we will not disturb its
findings unless clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, 282, ¶¶ 4, 12 (App. 2002). Here, the record contained
reasonable evidence to support the court’s conclusion.

B. Dishonesty Regarding Sobriety Date

¶22 Mother initially reported her sobriety date to TERROS as May
2020. During a phone call with her case manager in February 2021, Mother
claimed to have stopped using methamphetamine in Summer 2020. After
learning that follicle results go back 90 days, she changed her sobriety date
to September 2020. The superior court took these shifting dates to mean
Mother was dishonest regarding her sobriety. We do not re-weigh the
superior court’s credibility determinations. Id. at 282, ¶ 12.

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 KATHRYN L. v. DCS, S.L.
Decision of the Court

C. Environmental Exposure

¶23 Mother’s December 2020, March 2021, and April 2021 hair
follicles tested positive for methamphetamine. These samples were all
tested by DTL Labs. Mother insisted she was not using methamphetamine
and submitted a hair follicle to Fast Labs of Glendale (“Fast Labs”), a private
testing company, in May 2021. This May sample tested negative for
methamphetamine. DCS obtained an expert toxicologist to analyze
Mother’s past drug tests at the court’s request.

¶24 At trial, the toxicologist noted that Mother’s March and April
follicle tests were positive for methamphetamine but showed an absence of
amphetamine metabolites. That, in combination with her negative
urinalysis results, led him to believe Mother’s results were “consistent with
environmental exposure; that is, being around meth smoke users.” The
toxicologist also testified that DTL Labs specifically tests for environmental
exposure, whereas Fast Labs extensively washes hair samples to avoid
positives derived from environmental exposure. He also explained that
because methamphetamine is “sticky,” it would take very little exposure to
result in a positive hair sample.

¶25 To be sure, the superior court emphasized its belief that
Mother’s positive hair follicle results from December and March reflected
substance abuse in the 90 days before testing. Nevertheless, the court found
environmental exposure alone cause for concern, stating:

Mother, newly sober, would have been associating closely
with methamphetamine users while they smoked it-----
making relapse far more likely. Moreover, it is axiomatic that
the methamphetamine users, whoever they may be, pose
independent safety risks associated with diminished
judgment and erratic behavior to Mother and by extension to
SL.

¶26 Mother asserts that by the time of trial, she had not used
methamphetamine for at least seven months. When faced with sharply
disputed facts, we defer to the superior court’s findings unless no
reasonable evidence supports them. Jesus M., 203 Ariz. at 280, ¶ 4. Mother
claims the court’s determination that she spent time with
methamphetamine users is pure speculation unsupported by evidence. She
offers an alternate explanation for the environmental exposure: that she
uses public transportation and works in a busy hospital. However, there is
no evidence in the record that such contact with the public could have

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resulted in positive follicle tests. Mother did not ask the toxicologist to
opine on those matters. The toxicologist did, however, testify that
environmental exposure occurs when one is around methamphetamine
smoke or users, and requires more than “touching the doorknob or
brushing up against something of that nature.” The superior court’s
conclusion therefore was supported by reasonable evidence.

¶27 We conclude that there was reasonable evidence in the record
that Mother would be incapable of exercising proper parental care and
control due to drug abuse and domestic violence. As the superior court
properly granted termination on the fifteen months’ out-of-home
placement grounds, we need not address the nine months’ ground. Jesus
M., 203 Ariz. at 205, ¶ 3 (“If clear and convincing evidence supports any one
of the statutory grounds on which the juvenile court ordered severance, we
need not address claims pertaining to the other grounds.”).

CONCLUSION

¶28 Seeing no error, we affirm.

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

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