In Re Term of Parental Rights of K.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO
K.L., L.L., AND W.L.

No. 1 CA-JV 22-0182
FILED 4-18-2023

Appeal from the Superior Court in Mohave County
No. S8015JD202000092
The Honorable Aaron M. Demke, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Your AZ Lawyer Phoenix
By Robert I. Casey
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee, Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO KL, et al.
Decision of the Court

MEMORANDUM DECISION

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

B R O W N, Judge:

¶1 Allison L. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her three children, K.L., L.L., and W.L.
(“the children”).1 Mother challenges the sufficiency of the evidence and
asserts that the Department of Child Safety (“DCS”) failed to provide
appropriate reunification services. For the following reasons, we vacate the
court’s order and remand for further proceedings.

¶2 In October 2020, DCS removed the children from Mother’s
care. DCS then petitioned for dependency, alleging in part that Mother was
unwilling to provide proper and effective parental care by neglecting the
children due to her alcohol abuse. The juvenile court found the children
dependent and ordered DCS to make reasonable efforts to provide
reunification services. In February 2022, DCS move to terminate Mother’s
parental rights based on chronic substance abuse and fifteen-months’ care
in an out-of-home placement. See A.R.S. § 8-533(B)(3), (8)(c). DCS alleged
in part that Mother was unable to demonstrate sustained sobriety such that
she could successfully parent the children.

¶3 At the June 2022 termination hearing, the court heard
testimony from several witnesses, including a DCS specialist. The specialist
explained that despite Mother’s participation in some reunification
services, she continued to minimize her alcohol use. Mother testified that
she had not completed her substance testing since approximately January
2022, but explained she could not take time off from work sporadically
without fear of losing her job. At the conclusion of the hearing, the juvenile
court terminated Mother’s parental rights on both grounds alleged by DCS.

¶4 Mother timely appealed, and her appellate counsel filed a
notice under Arizona Rule of Procedure for the Juvenile Court (“Rule”)
607(e)(1)(B), stating he had reviewed the record and had found no non-

1 The juvenile court also terminated the parental rights of the
children’s father, who is not a party to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO KL, et al.
Decision of the Court

frivolous issue to raise on appeal. Appellate counsel also stated he had
informed Mother of her right to file a pro se brief. See id. After Mother
submitted her opening brief and DCS filed its answering brief, we
concluded there were non-frivolous issues that required further briefing.
Thus, we issued an order striking the Rule 607 notice filed by Mother’s
appellate counsel and directed him to file a merits brief addressing all non-
frivolous issues in the case, including several specific issues listed in the
order. See Ariz. R.P. Juv. Ct. 608(b)(4) (authorizing appellate courts to take
actions deemed “just and proper under the circumstances”).

¶5 In Mother’s opening brief filed by her appellate counsel, she
argues the juvenile court erred because (1) the evidence does not support
the finding that she has a history of chronic substance abuse and that it is
likely to continue for a prolonged and indeterminate time period; and (2)
DCS did not provide appropriate reunification services. See A.R.S.
§ 8-533(B)(3); Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192
(App. 1999). In response, DCS concedes that the juvenile court erred,
explaining its reasoning in part as follows:

Mother participated in services, but she tested sporadically
and alternately admitted and denied having a substance-
abuse problem. Mother tested positive for marijuana exactly
once (which the Department did not clearly identify as
evidence of a substance-abuse problem) but did not test
positive for alcohol or any other substance at any point in the
dependency.

Mother submitted diluted tests on five separate occasions, but
the Department mistakenly interpreted them as “positive for
alcohol,” and there is no indication that the Department ever
advised Mother that those tests were diluted or how to avoid
such results.

Meanwhile, the Department conditioned the return of the
children to Mother’s care on her ability to test negative for all
substances consistently for a ninety-day period or to provide
a live-in safety monitor, and Mother was unable to satisfy
either condition. Mother struggled to engage in random
substance testing because the nearest testing provider was
located over an hour away in another state and was open only
Monday through Friday for limited business hours.

....

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 IN RE TERM OF PARENTAL RIGHTS AS TO KL, et al.
Decision of the Court

[T]he Department concedes that its efforts fell short in that it
required Mother to engage in random twice-weekly drug
testing and to consistently test negative for ninety days before
it would return the children to Mother’s care, but it failed to
address the logistical near-impossibility of Mother doing so
successfully under the circumstances of this case.

....

Additionally, the record indicates that Mother raised the issue
with her substance-abuse treatment providers and suggests
that she changed her work hours and even changed jobs at
one point to attempt to comply with random testing. But the
relevant portions of DCS’s periodic reports to the juvenile
court do not contain any indication that DCS acknowledged
or attempted to assist Mother in addressing this challenge.

....

Mother’s inability to reasonably access random drug testing
had implications beyond the Department’s duty to make
reasonable and diligent reunification efforts. It significantly
weakened the juvenile court’s inference that Mother’s failure
to test signified that she had not achieved sobriety and that
she was either using her employment as an excuse to avoid
testing or that her employment was interfering with her
sobriety.

....

[T]he Department submits that the juvenile court must
reevaluate its finding after the Department corrects its
mistaken claim that Mother had “tested positive for alcohol”
on five occasions during the dependency.

Additionally, in light of the questionable value of any
inference based on Mother’s failure to test consistently and
the fact that Mother did not test “positive for alcohol” at any
point in the dependency, the Department concedes that
reasonable evidence does not support the court’s findings that
Mother’s substance abuse would likely continue for “a
prolonged indeterminate period” and that she would not be
capable of exercising proper and effective parental care and
control “in the near future.”

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 IN RE TERM OF PARENTAL RIGHTS AS TO KL, et al.
Decision of the Court

(Record citations omitted.)

¶6 Having considered the appellate briefing and relevant
portions of the record, we accept DCS’s concession of error. Thus, we need
not address whether the juvenile court’s written findings are legally
sufficient under Logan B. v. Department of Child Safety, 244 Ariz. 532 (App.
2018), or whether termination is in the children’s best interests. We vacate
the court’s order terminating Mother’s parental rights to the children and
remand to the juvenile court for further proceedings.

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

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