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Nikita K. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division

December 19, 2013

NIKITA K., Appellant,

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Navajo County S0900JD201100051 The Honorable Michala M. Ruechel, Judge.


Arizona Attorney General's Office, Mesa By Amanda Holguin Counsel for Appellee Arizona Department of Economic Security.

The Wood Law Office, Show Low By Ronald D. Wood Counsel for Appellant.

Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined.


GOULD, Judge:

¶1 Nikita K. ("Mother") appeals the juvenile court's order terminating her parental rights and requests a new trial. Because we find no error, we affirm the juvenile court's order.

Facts and Procedural History

¶2 Mother has a history of alcohol and marijuana use. The Arizona Department of Economic Security ("ADES") received a report on December 20, 2011 that Mother and her newborn, M.K., tested positive for marijuana, opiates, and benzodiazepines. Mother admitted using marijuana and Xanax while pregnant. M.K. was born with extremely low birth weight and was small for her gestational age; her treating physicians opined that Mother's drug use caused an intrauterine growth restriction or fetal retardation. M.K. was placed on a special diet and required feedings every three hours. Mother and Father did not give M.K. her nighttime feedings, claiming they were too tired and unable to wake up to care for her. The hospital staff were concerned that Mother would not provide for the child's medical needs after being discharged from the hospital.

¶3 In late December ADES took temporary custody of M.K., placing her in the physical custody of her paternal great aunt and uncle, and filed a dependency petition alleging she was dependent. The juvenile court later adjudicated M.K. dependent, and ADES implemented a case plan of family reunification, offering Mother and Father substance-abuse assessments and treatment, random drug testing, individual counseling, parenting classes, supervised visits, parent-aid services, and transportation.

¶4 Mother and Father's substance-abuse counselor believed both of them most likely suffered from a substance dependence disorder and referred them for random drug testing and substance-abuse treatment. Over the next few months both tested positive for a variety of drugs, and the counselor was also concerned they were abusing prescription drugs. However, Mother and Father were participating in random drug tests, and M.K. had gained three pounds in foster care. As a result, ADES returned M.K. to her parents' physical custody on February 22, 2012, and continued to provide them with reunification services, as well as food stamps, baby supplies, and daycare assistance. ADES also provided Mother and Father with transportation to M.K.'s doctor appointments, and helped them transition into a sober-living house with their two other children.

¶5 Over the next two months, Mother failed to take most of her drug tests and Mother and Father tested positive for drugs and alcohol. After holding a meeting addressing concerns regarding the children's safety in the home, ADES filed an in-home dependency petition on May 10, 2012, alleging that Mother and Father were unable to parent due to alcohol and drug use. Subsequently, Mother and Father failed to attend their scheduled intake appointments and parenting class, and failed to seek medical attention for T.K. when he was sick. On May 22, 2012, Father was arrested and charged with disorderly conduct after his attempt to trade alcohol for prescription drugs led to a physical altercation. Consequently, the family was evicted from the sober living house, and ADES removed the children, placed them in foster care, and filed its first amended supplemental dependency petition with regard to T.K. and K.Q.[1] The juvenile court later adjudicated T.K. dependent as to Mother and Father.

¶6 Upon removal of the children from their parents' care, a doctor's evaluation revealed that T.K. had a fever, two ear infections, and a sinus infection; M.K. had an eye infection and was underweight; and K.Q. was severely developmentally delayed and lacked the appropriate level of education for a five-year-old. On June 8, 2012, despite ADES's continued provision of substance-abuse services, neither parent complied with the services and both tested positive for methamphetamine. On ...

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