Appeal in Maricopa County Juvenile Action No. JS-501568, Matter of
| Decision Date | 08 March 1994 |
| Docket Number | JS-501568,No. 1,CA-JV,1 |
| Citation | 177 Ariz. 571,869 P.2d 1224 |
| Parties | In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.93-0030. |
| Court | Arizona Court of Appeals |
In this case, appellant asks us to reverse the juvenile court's termination of her parental rights with respect to her daughter. We hold that Arizona law permits a trial court to terminate parental rights when a parent's drug addiction has caused the initial removal of her child by the State and the parent substantially neglects to remedy her addiction for more than a year after the removal.
A daughter was born to appellant on October 9, 1989, in Phoenix, Arizona. The child was appellant's fourth. At the time of her child's birth, appellant had a ten-year history of dependency on and abuse of heroin, cocaine, and alcohol. As a result, the child was born prematurely and drug-addicted and remained in intensive care approximately one month. When the child was ready to be released, appellant, because of her ongoing drug and alcohol abuse, was unable to care for the child. Appellant orally agreed to the child's placement with Child Protective Services (CPS), but then disappeared before signing the temporary voluntary placement agreement.
Because attempts to locate appellant concerning her child were unsuccessful, the Arizona Department of Economic Security (ADES) filed a dependency petition on November 13, 1989, making the child a temporary ward of the court and placing her in the legal custody of ADES and CPS. Appellant made no contact with CPS until December 21, 1989, when she sent CPS a letter through a third party at the Salvation Army Adult Rehabilitation Program in which she was enrolled.
In January 1990, appellant left the Salvation Army program without completing rehabilitation and moved to California, where she reverted to her prior pattern of substance abuse. On February 26, 1990, the child was found dependent and made a permanent ward of the court and has remained such until the present. After moving to California, appellant made no further contact with CPS until August 27, 1990 (over eight months later) when she asked to speak with a CPS caseworker about the child. At this time, appellant was enrolled in an outpatient methadone maintenance program in Phoenix. The caseworker scheduled several appointments, but appellant did not appear for any of them until September 27, 1990.
A visit between appellant and the child was scheduled in October. Appellant, however, was unable to visit the child because appellant was incarcerated and, as she put it, forced to "detox." Eventually, in November 1990, appellant had two brief visits with her daughter. The following month, in a review hearing, the court made future visitation conditional on thirty days of drug-free urinalysis tests and a showing of stability by appellant through activities such as maintaining regular contact with her caseworker and attending scheduled parenting classes. Because appellant failed to comply with these requirements, no more visits with the child were scheduled.
On January 11, 1991, appellant began her third drug rehabilitation program, this time at New Casa de Amigas. She left this program prematurely in late February and CPS once again lost contact with her until she contacted her caseworker approximately a month later. After re-establishing contact and meeting with appellant several times in April, appellant's caseworker arrived at appellant's home on May 13, 1991, to take her to a scheduled psychiatric evaluation. Appellant refused to go and stated that she had "been drinking again" and wanted to "sign the papers to put [the child] up for adoption." The caseworker arranged to meet with appellant the following day to sign relinquishment papers, but appellant never appeared.
Shortly after this, appellant returned to California and made no further contact with CPS or the child for over sixteen months. During this period, ADES's case plan for the child was changed to severance and the child was moved from a foster home to a foster-adopt home. Toward the end of this sixteen-month period, on July 20, 1992, appellant (then eight months pregnant with her fifth child) enrolled in the Options for Recovery program in San Diego, California, the same day that ADES filed its petition for severance. Appellant finally called her CPS caseworker in September of 1992. Appellant, during this call, again stated she was willing to sign a relinquishment form. However, appellant did not return the form CPS sent her.
The parental rights of the child's alleged natural father (or any other person claiming to be the child's father) were terminated on October 7, 1992. The parental rights of the child's legal father (appellant's spouse) were terminated on December 9, 1992. The sole remaining issue--whether appellant's parental rights as the child's natural mother should be terminated--was adjudicated at a severance hearing held on April 5-7, 1993. At the hearing, appellant testified that she had been clean and sober since July 17, 1992. On May 3, 1993, the court granted ADES's petition for severance on the grounds that appellant had substantially neglected to remedy her drug abuse during more than a year of out-of-home placement and that appellant had abandoned the child. Appellant timely appealed this decision.
Appellant raises two issues on appeal:
A. Did the trial court misinterpret the language of Ariz.Rev.Stat.Ann. (A.R.S.) section 8-533(B)(6)(a) (1989), in finding that during more than a year of the child's out-of-home placement, appellant's conduct amounted to substantially neglecting to remedy her drug problem; and
B. Did the trial court abuse its discretion in finding by clear and convincing evidence that appellant abandoned the child?
Appellant contends the court improperly and unfairly applied A.R.S. section 8-533(B) in terminating her parental rights. Appellant argues that the court, by its ruling, ignored her successful efforts at rehabilitation in the months before the severance hearing and, in essence, was holding that parties in her position had to successfully "remedy" their drug problem within a year after their child is taken away or risk losing their child altogether. We disagree.
Under section 8-533, a trial court may properly order the termination of parental rights only upon finding that one of the enumerated grounds has been satisfied and that termination would be in the best interests of the child. In re Appeal in Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 804 P.2d 730 (1990). Here, the juvenile court found two statutory grounds: abandonment under section 8-533(B)(1), and substantially neglecting to remedy the problem that caused the out-of-home placement under section 8-533(B)(6)(a). The trial court also found that termination of appellant's parental rights would be in the child's best interests. We first address the court's findings that appellant substantially neglected to remedy her substance abuse during more than a year of out-of-home placement and that she abandoned the child. We will then turn to the issue of whether severance served the best interests of the child.
Termination of parental rights can occur after the first year of court-ordered, out-of-home placement when a parent refuses or substantially neglects to remedy the circumstances that caused the removal of his or her child by ADES. A.R.S. § 8-533(B). The statute states, in pertinent part:
B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following ...:
....
6. [T]he child is ... under the supervision of the juvenile court ... [and] the agency responsible for the care of the child has made a diligent effort to provide appropriate remedial services and ...:
(a) The child has been in an out-of-home placement for a cumulative total period of one year or longer pursuant to court order and the parent has substantially neglected or willfully refused to remedy the circumstances caus[ing] the ... out-of-home placement.
Id.
The trial court made the following findings and conclusions with regard to this subsection:
The one year requirement clearly has been met.... The circumstances that caused the child to be placed out of the home were the mother's drug abuse and failure to keep in contact with ADES.... [T]he Court finds that [appellant] substantially neglected or willfully refused to remedy those circumstances prior to the filing of the petition....
THE COURT ALSO FINDS that ADES has made diligent efforts to provide appropriate remedial services. [Appellant] was offered drug rehabilitation, parenting classes and counseling.
Appellant does not contend ADES was not diligent, nor does she take issue with the court's finding that the one year requirement was satisfied. Appellant argues only that the court's findings and conclusions with regard to substantial neglect constitute a misinterpretation of section 8-533(B)(6).
In appellant's view, this section should not be used to sever parental rights unless a parent has made no effort to remedy the situation that caused the out-of-home placement. Under this standard, appellant argues her attempts at rehabilitation during that first year, although unsuccessful, should still exempt her from severance. Appellant also argues that the trial court incorrectly interpreted subsection (B)(6)(a) as requiring actual remediation within one year of the problem causing removal of the child. We cannot agree with either of these propositions.
First, the plain...
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