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Nancy L. v. Arizona Department of Economic Security

Court of Appeals of Arizona, Second Division, Department B

October 9, 2013

NANCY L., Appellant,

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause Nos. JD200001597, JD201200002 (Consolidated) Honorable Kevin D. White, Judge.

Ritter Law Group, L.L.C. By Matthew A. Ritter Florence Attorneys for Appellant.

Thomas C. Horne, Arizona Attorney General By Cathleen E. Fuller Tucson Attorneys for Appellee Arizona Department of Economic Security.


VIRGINIA C. KELLY, Presiding Judge.

¶1 Nancy L. appeals from the juvenile court's order terminating her parental rights to her daughter, A.L., born in December 2006, on the grounds of history of chronic substance abuse and court-ordered, out-of-home placement for nine months or longer. See A.R.S. §§ 8-533(B)(3) and (B)(8)(a).[1] Nancy argues insufficient evidence supported the court's finding that she was unable to discharge her parental responsibilities because of chronic substance abuse, that her abuse would continue for a prolonged indeterminate period, and that the Arizona Department of Economic Security (ADES) provided appropriate reunification services. We affirm for the reasons stated below.

¶2 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and a preponderance of evidence that termination of the parent's rights is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). We review the evidence in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec, 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005). Therefore, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings" and the findings are clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002).

¶3 The record and the evidence presented at the severance hearing showed that in December 2011, Nancy was arrested for "trying to drive to the border for a drug run with [A.L.] in the vehicle." During an interview shortly after the stop, Nancy admitted to Child Protective Services (CPS), a division of ADES, that she had used methamphetamine earlier that day and that the home she currently resided in, where there was ongoing marijuana and methamphetamine use and sales, was "not a safe place." Nancy had been the subject of seven previous CPS reports, and her other four children had been removed from her care in the past. A.L. was taken into temporary custody and ADES filed a dependency petition. A.L. was adjudicated dependent as to Nancy after she submitted the issue of dependency to the juvenile court. ADES offered Nancy various services, including parenting classes, substance-abuse treatment, random drug testing, counseling, supervised visitation, transportation, and parent-aide services.

¶4 Although initially compliant with her case plan, in June or July 2012 Nancy went to California for one month without informing CPS of her whereabouts, and upon her return, she failed to resume participating in the services provided in her case plan. Nancy again tested positive for methamphetamine in August 2012, after which she apparently did not submit to any further drug tests. She did not have any visits with A.L. for "several months" in late 2012, nor did she inform her case manager where she was living during that time period. In November 2012, Nancy was arrested for possession of methamphetamine and drug paraphernalia, and later was incarcerated for those offenses.[2] In addition, her parenting classes were terminated in December 2012 due to "lack of contact and participation."

¶5 In February 2013, ADES filed a motion to terminate Nancy's rights to A.L. on the grounds of chronic substance abuse and length of time in court-ordered care. See A.R.S. §§ 8-533(B)(3) and (B)(8)(a). At the conclusion of the contested severance hearing held on April 26, 2013, the juvenile court granted ADES's motion to terminate Nancy's rights to A.L.[3] on the grounds asserted in the petition and found that termination was in A.L.'s best interests. The court issued a signed order terminating Nancy's rights to A.L. the following month.

6 On appeal, Nancy does not argue the juvenile court lacked sufficient evidence to find grounds for chronic substance abuse. Rather, she contends ADES did not establish she would be unable to discharge her parental responsibilities because of her chronic drug abuse and that her abuse would continue for a prolonged indeterminate period. She maintains the "mere fact that she has previously abused drugs" is the "only evidence" for believing her substance abuse will continue. Pointing out that she participated in substance abuse treatment programs while incarcerated and "had demonstrated a previous ability to abstain from drug abuse" from 2004 to 2011, and for an additional six months during the dependency, Nancy avows she became "a new person" while incarcerated, and that she "would henceforth be able to maintain sobriety."

¶7 Termination under A.R.S. § 8-533(B)(3) "does not require that the parent be found unable to discharge any parental responsibilities, " but rather "establish[es] a standard which permits a trial judge flexibility in considering the unique circumstances of each termination case before determining the parent's ability to discharge his or her parental responsibilities." In re Maricopa Cnty. Juv. Action No. JS-5894, 145 Ariz. 405, 408-09, 701 P.2d 1213, 1216-17 (App. 1985). Here, Nancy's testimony that she most recently used methamphetamine after A.L. told her she might "never com[e] home to [Nancy] again" is significant. Nancy was informed she had to remain free of drugs in order to be reunited with A.L. That she failed to do so strongly supports a conclusion that her drug dependency would prevent her from fulfilling her parental duties in the future. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, ¶ 29, 231 P.3d 377, 383 (App. 2010) (father's failure to remedy substance abuse "despite knowing the loss of his children was imminent" supports conclusion abuse will persist and "negatively affect his parenting abilities"). Nancy's case manager testified, "[T]he evidence speaks for itself . . . This is a pattern that we've seen for a very long time." She further opined:

Mother has not shown me any behavioral changes since this case has opened. She still has a lack of stable housing and employment. She is currently incarcerated. She has a really long history of substance abuse. She had four children previously removed from her care with severance and adoption. She . . . previously had the opportunity to do services. Rehab is self-referral . . . . [H]er history goes back to 1998. She ...

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