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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTINA H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.P., H.B., Appellees.

No. 1 CA-JV 21-0290
FILED 1-18-2022

Appeal from the Superior Court in Maricopa County
No. JD37462
The Honorable Lori Bustamante, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
 CHRISTINA H. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Christina H. (Mother) challenges the superior court’s order
terminating her parental rights to her biological children M.P. and H.B.
Mother argues the evidence does not support the substance abuse or time-
in-care grounds, and also that termination was not in the best interests of
the children. Because Mother has shown no error, the order is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Mother has a long history of abusing substances, including
methamphetamine, marijuana and alcohol. In 2005, the predecessor to the
Department of Child Safety (DCS) received multiple reports of Mother’s
substance abuse, instability and neglect of two older children. When
Mother failed to remedy the issues, the court granted DCS’ motion to
terminate her parental rights to one of those children in 2009 and the other
child was placed in the care of the child’s father.

¶3 In 2017, shortly after M.P.’s birth, DCS received reports that
Mother was abusing substances and neglecting the child. DCS provided
services and referred Mother to community resources but did not file a
dependency petition at that time.

¶4 When H.B. was born in February 2019, both Mother and H.B.
tested positive for cocaine and marijuana. DCS implemented a safety plan,
which Mother violated in May 2019 when she absconded with the children
to Las Vegas, Nevada. DCS filed a dependency petition in May 2019 and
the children were taken into care after being located in June 2019. In August
2019, the children were found dependent as to Mother when she did not
contest the dependency allegations and the court adopted a family
reunification case plan.

1This court views the evidence in a light most favorable to sustaining the
superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).

2
 CHRISTINA H. v. DCS, et al.
Decision of the Court

¶5 During the dependency, DCS provided Mother various
services, including parent aides, facilitated visitation, drug testing,
substance abuse assessment and treatment, psychological evaluations and
counseling. For the two years following the dependency finding, Mother
failed to successfully engage in services or address her substance abuse
issues. Mother completed half of the parent aide sessions, which closed out
unsuccessfully in March 2020. Mother later testified she left the parent aide
program because “I’m not going to just do things that aren’t going to better
me.” She also was inconsistent in participating in visits and showed
concerning and aggressive behavior when she did participate. Mother was
offered supervised visits in April 2020 but failed to consistently attend.

¶6 In June 2020, Mother again moved to Las Vegas and remained
there during the rest of these proceedings. After the move, Mother had
limited in-person contact with M.P. and H.B. In September 2020, Mother
gave birth to O.B., apparently in Nevada. It does not appear Nevada has
taken O.B. into care, and that child is not a part of this proceeding.

¶7 DCS referred Mother for urinalysis and hair follicle testing.
For two years, Mother did not consistently test and was closed out for
failure to participate. When Mother did test, she routinely tested positive
for methamphetamine and marijuana. Her last test, in April 2021, was
positive for methamphetamine. Mother regularly disputed her positive test
results, claiming the tests were not accurate.

¶8 In July 2019, DCS referred Mother to a substance abuse
treatment facility. Mother, however, stopped participating and was closed
out unsuccessfully when she failed to attend group sessions or submit to
drug testing. In May 2020, Mother checked into Lifewell Behavioral
Wellness for treatment but left soon after without completing the program.
Mother later testified she left Lifewell because she did not believe the
treatment was helpful and because insurance would not cover the entire
program. After moving to Las Vegas, Mother apparently participated and
successfully completed a year-long substance abuse program, receiving a
certificate in May 2021. However, while participating in that program,
Mother only disclosed that she had issues with alcohol, not
methamphetamine or other drugs. A March 2021 attempted placement of
the children in Nevada through the Interstate Compact on the Placement of
Children (ICPC) was denied by the State of Nevada, given Mother’s
positive drug tests and failure to test consistently.

¶9 During a psychological evaluation in July 2019, Mother
disclosed a history of substance abuse and neglect. Mother was diagnosed

3
 CHRISTINA H. v. DCS, et al.
Decision of the Court

with an unspecified depressive disorder, borderline intellectual functioning
and cannabis-stimulant and alcohol-use disorders. Mother’s struggles, the
psychologist’s report noted, could place a child in her care “at risk for harm
and can subsequently lead to behavioral problems and academic difficulties
in the child.” The report also noted that Mother “demonstrated minimally
adequate parenting skills due to her substance abuse and addiction issues.”
The psychologist recommended Mother obtain treatment for substance
abuse, complete parent aide services and engage in behavioral therapy to
improve coping, communication, decision-making and parenting skills.
Although engaging in counseling, Mother did not successfully engage in
programs addressing substance abuse or treatment.

¶10 Given her lack of progress, in January 2021, the court granted
DCS’ request to change the case plan to severance and adoption. DCS’
motion filed later that month sought termination based on substance abuse
and 15-months time-in-care, also alleging that termination was in the
children’s best interests. See Ariz. Rev. Stat. (A.R.S.) §§ 8-533(B)(3), -(B)(8)(c)
and -533(A) (2022).2 At the August 2021 severance adjudication, Mother and
the DCS case manager testified, and the court received exhibits and heard
arguments. After taking the matter under advisement, in September 2021,
the court found DCS had proven both statutory grounds by clear and
convincing evidence and had shown by a preponderance of the evidence
that terminating Mother’s parental rights was in the children’s best
interests. This appeal followed. This court has jurisdiction over Mother’s
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. §§ 8-235(A), 12-120.21(A)(1) and 12-2101(A)(1) and Ariz. R.P.
Juv. Ct. 103-104 (2022).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

4
 CHRISTINA H. v. DCS, et al.
Decision of the Court

DISCUSSION

I. The Superior Court Did Not Err by Terminating Mother’s Parental
Rights.

¶11 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 as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

A. Mother Has Not Shown the Superior Court Erred In Finding
She Was Unable Discharge Her Parental Responsibility
Due to Her Chronic Substance Abuse.

¶12 To terminate parental rights for chronic substance abuse, DCS
had to prove that: (1) Mother has a history of chronic abuse of controlled
substances or alcohol; (2) Mother is unable to discharge parental
responsibilities because of her 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. See A.R.S. § 8-
533(B)(3); Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377 ¶ 16 (App.
2010) (noting substance abuse need not be constant to be considered
chronic).

¶13 Mother argues that DCS did not show that she failed to
remedy her substance abuse issues because: (1) she was able to discharge
parental responsibilities to O.B. safely and properly; and (2) Mother
successfully completed a year-long intensive outpatient substance abuse
treatment program. The trial evidence showed that Mother had used
methamphetamine and marijuana for 15 years, routinely tested positive for
those substances and had her parental rights to an older child terminated.
Mother’s chronic drug use rendered her unable to effectively care for M.P.,
and, in 2019, M.P. and H.B. were taken into care when H.B. was born
substance exposed.

5
 CHRISTINA H. v. DCS, et al.
Decision of the Court

¶14 Mother contends that reasonable evidence shows she was
improving in Nevada and capable of discharging her parental
responsibilities because the DCS case manager was unaware of any issues
with O.B. Mother’s care for O.B., however, fails to establish that she had
conquered her substance abuse problems. In fact, in March 2021, Nevada
child-welfare authorities denied DCS‘ attempt to place M.P. and H.B. in her
physical care because Mother failed to “meet[] their standards.” Among
other things, Mother failed to routinely test for controlled substances, and,
when she did test, was positive for methamphetamine and marijuana.

¶15 Mother’s successful completion of an outpatient substance
abuse program also fails to show her substance abuse issues had been
remedied. Shortly before beginning that program, and three times during
the program, Mother tested positive for methamphetamine. While Mother
successfully completed the program, she failed to disclose to the clinicians
that she used methamphetamine and continued to test positive for the
substance. The nature of Mother’s treatment focused solely on Mother’s
issues with alcohol, not controlled substances like methamphetamine.

¶16 The record shows Mother has a history of chronic substance
abuse. Substance abuse was an issue in a prior dependency that led to the
termination of her rights to an older child. For the two years after DCS
removed M.P. and H.B. from her care, Mother refused to test consistently.
When Mother did test, the results were often positive for
methamphetamine or marijuana. Mother’s length and frequency of
substance abuse, the types of substances abused and her history of relapse
support the court’s finding that Mother has a chronic history of substance
abuse. See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287 ¶ 20 (App.
2016).

¶17 The trial evidence also supports the court’s conclusion that
Mother’s chronic use of controlled substances renders her unable to
effectively parent M.P. and H.B. Evidence detailed Mother’s reluctance to
make “any behavioral changes,” including failing to complete treatment
programs and denying the use of controlled substances while continuing to
test positive. Trial evidence included a psychological evaluation detailing
Mother’s mental disorders and finding her “experiences continue to
negatively impact all major areas of her basic and advanced functioning,
including . . . cognitive functioning, decision-making abilities, her parenting
abilities, her insight and judgment, motivation, and her emotional well-
being.” The evidence also noted concerns about Mother’s inability to parent
M.P. and H.B. because of mental disorders, instability and relocating
residences multiple times, including absconding to Nevada and later

6
 CHRISTINA H. v. DCS, et al.
Decision of the Court

moving there. Mother has had ample time to show “she is willing to make
the necessary behavioral changes needed in order to reunify with the
children” but has failed to do so.

¶18 This trial evidence supports a finding that her substance
abuse will continue indefinitely. See Raymond F., 224 Ariz. at 378-79 ¶ 26.
Mother’s failure to abstain from substances despite a pending severance is
“evidence [she] has not overcome [her] dependence on drugs and alcohol.”
Id. at 379 ¶ 29. The trial record supports the superior court’s finding that
her drug use will continue for a prolonged indefinite period. A.R.S. § 8-
533(B)(3). Because clear and convincing evidence supports the chronic
substance abuse statutory ground, this court need not address Mother’s
arguments about the time-in-care ground. Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002).

B. Mother Has Not Shown The Court Abused Its Discretion in
Finding Termination of Her Parental Rights Was in the
Children’s Best Interests.

¶19 Mother argues that termination was not in the children’s best
interests because, although M.P. and H.B. are placed together in a potential
adoptive placement, they would not be placed with O.B. in Mother’s care.
“[T]ermination 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. Ariz. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018).
The record is viewed in a light most favorable to upholding the best
interests findings, and findings of fact will be affirmed if supported by
reasonable evidence and inferences. Id. at 151 ¶¶ 18, 21.

¶20 Mother argues that separating M.P. and H.B. from O.B. is not
in the children’s best interests. O.B., however, lives with Mother in Nevada
and is not part of this proceeding. DCS’ attempted placement of M.P. and
H.B. with Mother (and O.B.) was denied by Nevada, given Mother’s
positive drug tests and resistance to participate in drug testing. Although
Mother argues that “[p]lacement with siblings is a factor that can help make
a particular adoption plan beneficial,” such a placement is by no means the
factor. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016) (stating
children’s interests in stability and security are the court’s primary concern)
(emphasis added).

¶21 The superior court properly found M.P. and H.B. would
benefit from termination because they are placed together in a potential
adoptive placement. The court also found the children would be harmed if

7
 CHRISTINA H. v. DCS, et al.
Decision of the Court

termination was denied because “maintaining [the] parent-child
relationship would be detrimental to the children because Mother has been
unable to overcome her substance abuse issues and waiting for [Mother] to
obtain sobriety and provide the children with a safe and stable environment
will prevent the children from having permanency in a forever home.” On
this record, Mother has shown no abuse of discretion in the court’s best
interests findings. See Alma S., 245 Ariz. at 149-150 ¶¶ 8-9.

CONCLUSION

¶22 The order terminating Mother’s parental rights to M.P. and
H.B. is affirmed.

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

8