Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. L8015JD201307025 The Honorable Richard D. Lambert, Judge.
Law Offices of Heather C. Wellborn, P.C., Lake Havasu City By Heather C. Wellborn Counsel for Appellant
Arizona Attorney General's Office, Mesa By Eric K. Knobloch Counsel for Appellee DCS
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Andrew W. Gould joined. Judge Peter B. Swann dissented.
¶1 Angela L. ("Mother") appeals the juvenile court's order terminating her parental rights to her minor children and finding that termination was in their best interests. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2014, the Department of Child Safety moved to terminate Mother's and Tielman's ("Father") parental rights to their children-A.L., age four, D.L., age three, and T.L., age one-on grounds of history of chronic substance abuse under A.R.S. § 8-533(B)(3), time in out-of-home placement under A.R.S. § 8-533(B)(8)(b), and care in out-of-home placement under A.R.S. § 8-533(B)(11). The Department also alleged that termination would be in the children's best interests because they would have a "permanent, stable, and drug free home with parents that [were] part of their daily lives." The Department's extensive history with Mother explained its decision to request termination.
1. The Department's Extensive History with Mother
¶3 In June 2011, the Department received a report that Father had struck Mother and A.L. and pushed A.K.-Mother's child from a previous relationship, whose biological father had been an active drug user-out of their car. The Department subsequently filed a dependency petition, alleging A.K. and A.L. dependent as to both parents. It contended that Mother was neglecting her children because of ongoing domestic violence and her failure to protect them from domestic violence. It also contended that A.K. reported specific incidents of domestic violence and that A.L.-ten months old at the time - imitated Mother's screams, which she heard during domestic violence incidents.
¶4 The juvenile court adjudicated A.K. and A.L. dependent as to Mother based on her failure to protect them from the effects of Father's abuse. After considering the verified dependency petition, the case manager's report, which was admitted into evidence, and the record before it, the court found that the evidence supported the Department's allegations. At this point, Mother had left Father, participated in reunification services, and moved in with her parents. Because of Mother's progress, on the Department's motion, the court dismissed the dependency.
¶5 Several months later, the Department received another report of domestic violence between Mother and Father. Mother had returned to Father and was attempting to take A.K., A.L., and D.L. from their grandmother's home. Their grandmother called the Department, and the Department prevented Mother from taking the children. It placed the children in their grandmother's care.
¶6 The Department petitioned for dependency again, alleging that Mother abused or neglected the children due to domestic violence with Father. It contended that Mother self-reported the "ongoing physical and verbal abuse occurring between her and [Father] while the children [were] present" and that the "children [could] recall and imitate the sounds and incidents of domestic violence in the home." The Department also alleged that Mother neglected the children due to her unwillingness to parent and provide a safe environment.
¶7 The juvenile court adjudicated A.K., A.L., and D.L. dependent as to Mother because she did not remove them from an abusive environment and because of her unwillingness to parent and provide them a safe environment. After considering the verified dependency petition, the case manager's report, which was admitted, and the record before it, the court found that the evidence supported the Department's allegations. In fact, in the admitted report the case manager had recommended termination of parental rights because Mother and Father's relationship was "marred by extra marital affairs, drugs, domestic violence, lies, deceit and criminal activity" and because they had "failed to established a safe and stable home" for the children.
¶8 But Mother again participated in reunification services, and a year later, the same case manager concluded that Mother was "a good mother and able to fulfill her responsibility to her children" and recommended that the Department dismiss the petition. The case manager ended her report, however, by noting that although "there [was] inherent risk within this family because of domestic violence and misuse of medications, there [was] not a sufficient safety threat that warrant[ed] the children remaining dependent." Consequently, the Department moved to dismiss the petition, and the court did so as to A.L. and D.L., returning the children to Father and Mother's care. But on Mother's parents' motion, the court appointed them as A.K.'s permanent guardians.
¶9 In August 2013, the Department received yet another domestic violence report and was told that Mother and Father had fled Arizona with the children. This incident involved Father's attacking Mother's brother with a machete. One witness told the Department that Mother might be using drugs. The Department concluded that the incident was consistent with the family's pattern of behavior: "[P]arents relapse[d] in drugs, [which led] to domestic violence, the domestic violence [led] to endangering the children, [which led] to unemployment, [which led] to criminal activity."
¶10 The Department consequently filed a third dependency petition, alleging A.L., D.L., and T.L. dependent as to both parents. "Because of the significance of the incident [and] the extensive past of [the parents] involving substance abuse and domestic violence, " the Department was concerned for the children's safety. It located them in Minnesota and obtained a pick-up order to bring them back to Arizona. When the Department took custody of the children, two of them required medical attention for serious conditions: T.L. had a severe ear infection, which made him fussy, and D.L. was suffering from a severe eczema outbreak, which caused her pain throughout the flight.
¶11 In this dependency petition, the Department alleged that Mother was neglecting her children as evidenced by her substance abuse, by her long history of domestic violence with Father in the children's presence, and by her failure to protect them. After an evidentiary hearing where the juvenile court reviewed admitted exhibits and testimony, including Mother's testimony, it adjudicated the children dependent on grounds of history of domestic violence and failure to protect, but not substance abuse because the Department's evidence was not within the timeframe of this petition. Mother and Father, although remaining in Minnesota, engaged in reunification services. They took hair-follicle drug tests, which came back negative. But Mother's and Father's psychological examinations were invalid because, in an attempt to curry favor with the Department, they were not honest.
¶12 After Mother and Father returned to Arizona because of their "criminal issues, " they attended supervised visits with the children. Mother participated in domestic violence counseling, but consistently denied that Father was abusive. A few months later, however, Mother separated from Father and obtained an order of protection against him because he attacked her once again. Father subsequently violated the order and was jailed. Mother thereafter stopped attending counseling and missed nearly half of the scheduled visits with the children.
2. The Motion to Terminate Parental Rights and the Severance Hearing
¶13 Because of this extensive history with Mother, the Department moved to terminate Mother's and Father's parental rights to the children on grounds of history of chronic substance abuse, time in out-of-home placement, and care in out-of-home placement. The Department alleged that although it had offered Mother and Father rehabilitative services, including substance abuse assessment, they "only minimally engaged with those services, " and "after repeated instances of noncompliance it [became] clear that the parents [were] willfully refusing to engage in the services offered."
¶14 At a pretrial conference on June 1, 2014, the State stated that it believed that Mother was using drugs. Mother volunteered to submit to a hair-follicle test that day to dispel the State's concern. The Department arranged for the test, but Mother did not take it because she had started using methamphetamine again and knew that the test would come back positive.
¶15 By July, Mother had once again reunited with Father. They agreed between themselves to enter a drug rehabilitation program. Mother spent only a week in the program, however, because Father refused to join her. She later explained that "[Father] didn't want to go to treatment, he-and so I lost-I lost hope. If he's not going to go to treatment, why should I go because it's not going to help anything." Soon after, Mother and Father were arrested and indicted for burglary, theft of means of transportation, theft, criminal damage, and possession of drug paraphernalia. Mother accepted a plea offer for her criminal offenses. Upon her release from jail, Mother submitted to a hair-follicle test on August 15, which returned a positive result for methamphetamine.
¶16 At the severance hearing on September 11, Mother's attorney indicated that Mother had filed for divorce from Father, who would be incarcerated for two to four years and who had consented to terminating his parental rights. Mother moved for a continuance in view of Father's consent and her divorce plans, but the court denied the motion. The court explained that it had "to weigh all the possible strategies and possible tactics and everything when someone makes certain moves." The court wondered, because of its knowledge of the case, whether Mother's reasons for the continuance was "a tactic where [Mother divorces Father]" ...