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Lisa C. v. Arizona Dept. of Economic Security

Court of Appeals of Arizona, Second Division, Department B

October 30, 2013

LISA C., Appellant,

Not for Publication Rule 28, Rules of Civil Appellate Procedure.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY, Cause No. J17481300, Honorable Geoffrey Ferlan, Judge Pro Tempore.

Sarah Michèle Martin Tucson Attorney for Appellant.

Thomas C. Horne, Arizona Attorney General By Laura J. Huff Tucson Attorneys for Appellee Arizona Department of Economic Security.



¶1 Lisa C, the mother of J.M., born in August of 2005, challenges the juvenile court's May 2013 order terminating her parental rights on the grounds of chronic abuse of drugs and alcohol and length of time in court-ordered care, pursuant to A.R.S. § 8-533(B)(3) and (B)(8)(c), respectively. Lisa maintains the Arizona Department of Economic Security's (ADES) policy of considering a diluted urine sample submitted for substance testing to be a positive test result violated her rights to due process and equal protection under the state and federal constitutions. She contends that without this evidence, there was insufficient evidence establishing the two statutory grounds for terminating her rights. She also challenges the sufficiency of the evidence to support the court's finding that termination of her rights was in J.M.'s best interests. We affirm for the reasons stated below.

¶2 When reviewing an order terminating a parent's rights, we view the evidence in the light most favorable to sustaining the juvenile court's ruling. See Lashonda M. v. Ariz. Dep't of Econ. Sec, 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005). Thus, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports [them]." Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002). That is, we will not disturb the ruling unless it is clearly erroneous. Id.

¶3 The record and the evidence presented during the contested severance hearing established J.M. had tested positive for cocaine at birth. Child Protective Services (CPS) took J.M. into protective custody and filed a dependency petition, alleging Lisa had a significant history of substance abuse and that there had been domestic violence involving Lisa and J.M.'s father, Danny M. In September 2005, Lisa and Danny admitted the allegations of an amended petition and the juvenile court adjudicated J.M. dependent. ADES provided and Lisa participated in a variety of services designed to reunify the family. In January 2007, the court dismissed the dependency.

4 Over the next four years, CPS received reports that Lisa and/or Danny had abused J.M., had been using drugs and alcohol, and had engaged in domestic violence. CPS also received reports that the parents and Lisa's boyfriend had gone to J.M.'s school smelling of alcohol, appearing intoxicated, and J.M. had been sent to school dirty. In January 2011, Tucson police and CPS received a report that Danny was abusing J.M. by shouting and cursing at the child, kicking him, and dragging him. CPS took J.M. into protective custody and ADES filed a dependency petition in February. In March 2011, J.M. was adjudicated dependent for the second time after the parents admitted allegations in an amended dependency petition.

¶5 ADES again provided Lisa with a variety of reunification services. In June 2012, after a permanency hearing, the juvenile court found Lisa was only partially compliant with the case plan and that J.M. could not safely be returned to either of his parents. After the court granted ADES's request to change the case plan to severance and adoption, ADES filed a motion to terminate both parents' rights to J.M. The court granted the motion following a contested severance hearing, which was held over a six-day period between September 2012 and March 2013.

6 Lisa contends on appeal the juvenile court violated her constitutional rights because it relied on evidence that she had submitted diluted urine samples for required substance-abuse testing and presumed the test results were positive, in accordance with ADES's policy. She claims she never was afforded an alternative form of testing, and maintains that without this evidence, there was insufficient evidence to support the factual findings that are the bases for the termination of her parental rights. Relying to a large degree on Christina G. v. Arizona Department of Economic Security, 227 Ariz. 231, n.8, 256 P.3d 628, 632 n.8 (App. 2011), ADES contends Lisa waived these claims by failing to raise them below in a timely manner. It asserts Lisa had "at least four opportunities to either object to random urinalysis testing and/or request an alternate form of drug testing, " which she never did. And, she did not object to the admission of the urinalysis evidence, although she had notice from ADES's "pre-trial statement" that it would be introducing the test results at the severance hearing.

¶7 A parent waives claims, including constitutional claims, that are raised for the first time on appeal. See Kimu P. v. Ariz. Dep't of Econ. Sec, 218 Ariz. 39, n.3, 178 P.3d 511, 516 n.3 (App. 2008); see also Christina G., 227 Ariz. 231, n.8, 256 P.3d at 632 n.8 (parent may waive challenge to ADES's reunification efforts by failing to raise issue during dependency proceedings, failing to request different or additional services, or failing to object to manner in which services provided).

¶8 Lisa testified at the severance hearing that she had "issues" with ADES's policy of regarding diluted urine samples as positive test results for drugs or alcohol. But she did not object to ADES's policy or the admission of this evidence on constitutional or other grounds, nor did she request a different form of testing for substance use. Lisa's counsel, however, raised some of the claims she is now raising during closing argument. Counsel argued,

[ADES] would ask that you accept their policy presumption that a diluted drop is a positive drop. That's not the law. There's no law in Arizona that says a diluted drop is a positive drop. What it is is a policy decision by [ADES], because when they see a diluted drop they don't know ...

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