83 P.3d 43 (Ariz.App. Div. 1 2004), 1 CA-JV 03-0046, Mary Lou C. v. Arizona Dept. of Economic Sec.

Docket Nº:1 CA-JV 03-0046.
Citation:83 P.3d 43, 207 Ariz. 43
Opinion Judge:[9] The opinion of the court was delivered by: Winthrop, Judge
Party Name:MARY LOU C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, and Joseph C., Appellees.
Attorney:[7] Leslie J. Klass Phoenix Attorney for Appellant [8] Terry Goddard, Arizona Attorney General Phoenix by Judy A. Sheirbon, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security
Case Date:January 27, 2004
Court:Court of Appeals of Arizona
 
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Page 43

83 P.3d 43 (Ariz.App. Div. 1 2004)

207 Ariz. 43

MARY LOU C., Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, and Joseph C., Appellees.

No. 1 CA-JV 03-0046.

Court of Appeals of Arizona, First Division, Department D.

Jan. 27, 2004.

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[Copyrighted Material Omitted]

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       [207 Ariz. 45] Leslie J. Klass, Phoenix, Attorney for Appellant.

        Terry Goddard, Arizona Attorney General by Judy A. Sheirbon, Assistant Attorney General, Phoenix, Attorneys for Appellee Arizona Department of Economic Security.

        OPINION

        WINTHROP, Judge.

        ¶ 1 Mary Lou C. ("Appellant") appeals from the juvenile court's order terminating her parent-child relationship with Joseph C. ("Joseph") pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3) and (10) (Supp.2003). 1 Appellant argues that the juvenile court erred in (1) terminating her parental rights based on the "same cause" ground of A.R.S. § 8-533(B)(10); (2) not considering an implicit duty of Child Protective Services ("CPS") to provide her with reasonable services in connection with the grounds set forth in A.R.S. § 8-533(B)(3); and (3) finding that termination of her parental rights would be in Joseph's best interest. We have appellate jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 12-2101(B) (2003), and 8-235(A) (Supp.2003). For the following reasons, we affirm.

        FACTUAL AND PROCEDURAL HISTORY

        ¶ 2 On April 17, 2002, Appellant gave birth to Joseph. At the time of the birth, the father's identity and whereabouts were unknown, and Appellant was incarcerated, serving 2.5 years' imprisonment for violating the terms of her probation imposed for possession

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[207 Ariz. 46] of illegal narcotics; thus, Appellant arranged for a relative to care for Joseph. On April 26, 2002, the juvenile court terminated Appellant's parental rights to her daughter, Mary Ann C. ("Mary"), setting forth the grounds for severance as A.R.S. § 8-533(B)(1) (abandonment) and (B)(7)(a) and (b) (out-of-home placement/time in care). 2 The order further set forth that Mary's best interest would be served by a termination because Appellant "was using drugs prior to giving birth and the baby [Mary] was born substance abused."

        ¶ 3 On May 9, 2002, the Arizona Department of Economic Security ("ADES") filed a dependency petition, asking the juvenile court to adjudicate Joseph a dependent child as to Appellant and Joseph's father. 3 The petition alleged that CPS had taken Joseph into temporary custody because the relative who had been caring for him decided she could no longer do so after learning that Appellant planned to raise him after she was released from prison. The petition also alleged that Appellant had previously given birth to eight other children, none of whom were in her care; that the four youngest of the previous eight children had been born exposed to cocaine and other substances, and Appellant's parental rights to those children had been terminated; and that Appellant had admitted that, although Joseph tested negative for drugs at birth, she had exposed Joseph to illegal drugs during her pregnancy, and that abuse of drugs led to the revocation of her probation and her current incarceration.

        ¶ 4 On May 11, 2002, Joseph was placed in an emergency receiving home until placement in a foster home with a sibling (his sister, Mary) could be approved. At the May 14, 2002 preliminary protective hearing, the juvenile court adjudicated Joseph dependent as to Appellant, made Joseph a temporary ward of the court, and placed him in the physical custody of ADES. The court also ordered ADES to provide Appellant with a psychological evaluation. Due to Appellant's lengthy history of substance abuse and previous inability to parent her other children, ADES developed a concurrent case plan for family reunification and severance and adoption. At the July 26, 2002 disposition hearing, the juvenile court acknowledged the concurrent case plan.

        ¶ 5 In November 2002, ADES developed a case plan of severance and adoption for Joseph. On November 21, 2002, ADES filed a motion to accelerate the permanency planning hearing and, although Appellant objected, the juvenile court granted the motion. At the January 7, 2003 permanency planning hearing, the court approved the case plan of severance and adoption and ordered that ADES file a motion for termination of the parent-child relationship within ten days. On January 14, 2003, ADES filed a motion for termination of the parent-child relationship on the grounds of abandonment (father); "mental illness and/or mental deficiency, and/or a history of chronic abuse of dangerous drugs, controlled substances and/or alcohol" (Appellant); length of sentence of incarceration (Appellant); out-of-home placement/time in care for nine months or longer (Appellant); and prior termination of another child within the preceding two years for the same cause and currently unable to discharge parental responsibilities due to the same cause (Appellant).

        ¶ 6 On March 19, 2003, the juvenile court held a contested hearing to determine if Appellant's parental rights as to Joseph should be severed. At the conclusion of the hearing, the court issued a minute entry that included the following findings and order:

        THE COURT FINDS the Department has proven by clear and convincing evidence that the mother does have a history of chronic abuse of dangerous drugs, controlled substances, and/or alcohol. Mother admitted to alcohol abuse at the time she became pregnant with the child, and there are reasonable grounds based on the testimony of Dr. Juliano that the condition will

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continue for a prolonged indeterminate period of time.

        

With respect to the ground that parental rights of another child have been terminated within the proceeding [sic] two years for the same cause and the mother is currently unable to discharge parental responsibilities due to the same cause, the testimony is clear that the rights of the baby's sister were terminated on or about April 1, 2002. That is within two years. The cause for the previous termination was, in fact, substance abuse. The cause of the current petition on the grounds alleged are substance abuse.

        IT IS ORDERED granting the Motion for Termination pursuant to ARS [§ ] 8-533(B)(3) and ARS [§ ] 8-533(B)(10).

        On April 1, 2003, the juvenile court entered a signed order terminating Appellant's parental rights to Joseph after finding that grounds for severance pursuant to § 8-533(B)(3) and (10) applied. Appellant filed a timely notice of appeal.

        ANALYSIS

         I. Severance Pursuant to A.R.S. § 8-533(B)(10)

        ¶ 7 Appellant argues that the juvenile court erred as a matter of law in terminating her parental rights based on the "same cause" ground of A.R.S. § 8-533(B)(10). She contends that the court did not find that the statutory grounds upon which her parental rights to Mary were terminated (abandonment and out-of-home placement/time in care) applied to Joseph and that the court improperly "speculated" that her substance abuse was the same cause that both led to the termination of her rights to Mary and rendered her unable to parent Joseph.

         ¶ 8 Although the right to custody of one's children is fundamental, it is not absolute. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, pp 11-12, 995 P.2d 682, 684 (2000). "To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child." Id. at 249, ¶ 12, 995 P.2d at 685 (citing A.R.S. § 8-533(B)). Because the trial court is "in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings," Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App.1987), this court will not reweigh the evidence but will look only to determine if there is evidence to sustain the court's ruling. Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App.1996). "We will not disturb the juvenile court's disposition absent an abuse of discretion or unless the court's findings of fact were clearly erroneous, i.e., there is no reasonable evidence...

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