Raymond F v. Ariz. Dep't Of Econ. Sec.

Decision Date20 May 2010
Docket NumberNo. 1 CA-JV 09-0025.,1 CA-JV 09-0025.
Citation231 P.3d 377,224 Ariz. 373
PartiesRAYMOND F., Appellant,v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Amberly F., Myra F., Appellees.
CourtArizona Court of Appeals

David Goldberg, Fort Collins, CO, Attorney for Appellant.

Terry Goddard, Arizona Attorney General By Kathleen Skinner, Assistant Attorney General, Phoenix, Attorneys for Appellee, Arizona Department of Economic Security.

Law Offices of Florence Bruemmer By Tanya Renee Imming, Anthem, Attorney for Children.

OPINION

VASQUEZ, Judge.

¶ 1 Raymond F. (Father) appeals the juvenile court's order terminating his parental relationship with his daughters, A.F. and M.F.1 We hold that there was sufficient evidence for the juvenile court to find that: 1) Father was unable to discharge his parental responsibilities because of his history of chronic drug abuse pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3) (Supp.2008); and 2) termination of his parental rights is in the best interest of his daughters. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Father is the biological father of A.F., born in November 2002, and M.F., born in October 2005. A.F. and M.F. were residing with their mother (Mother) on May 19, 2007 when Mother's boyfriend sexually abused A.F. Mother did not contact the police, but reported the sexual abuse to Father. Father also did not report the incident to the police. Meanwhile, Mother and the children continued to live with Mother's boyfriend. Mother filed a police report approximately five days after the incident. Though Father did not contact the police, he did cooperate with the investigation. A medical examination confirmed that A.F. had been sexually assaulted. Father was then given temporary legal custody of both girls while mother maintained supervised visitation rights.

¶ 3 According to Child Protective Services (“CPS”), Father had a history of drug abuse. Because Father had submitted to a urinalysis (“UA”) and tested positive for marijuana, CPS initiated a services-only case in June 2007 to provide him with services. CPS offered him UAs, substance abuse treatment and psychological evaluation. Father completed a substance abuse program with Arizona Families F.I.R.S.T. (“F.I.R.S.T.”), but he subsequently tested positive for alcohol on October 24 and November 2, 2007, and for marijuana on May 11, June 13, and June 14, 2007. Further, Arizona Department of Economic Security (ADES) officials reported that on one occasion, when Father arrived at the ADES office, he appeared to be under the influence of alcohol, indicating he had driven with the children while intoxicated.

¶ 4 On October 20, 2007, Father allowed his alcoholic stepfather to care for the children so Father could take a nap. The stepfather drove while intoxicated with the children in the vehicle, resulting in a head-on collision.

¶ 5 Early on November 19, 2007, Father left a message with a case manager stating that M.F. had a shoulder injury that may require medical attention. Rather than take M.F. to the hospital, Father left M.F. with daycare. Later that day, M.F. was admitted to the Yavapai Regional Medical Center emergency room by a case manager because of a severely bruised and swollen shoulder. A.F. stated to several people that “Daddy pushed [M.F.] and made her fall.” In a report, M.F.'s doctor stated that the injury was not accidental. The injury later resulted in four operations and a two-week hospital stay due to an infection.

¶ 6 CPS took custody of the children while M.F. was at the hospital. On November 20, 2007, Father submitted to a psychological examination where it was determined that he had a history of drug use, including alcohol, marijuana, hallucinogens, and narcotic pain medication. The psychologist stated that [i]f this individual is continuing to use psychoactive substances at an abusive level, such use would certainly impaired [sic] his ability to fully function as [a] parent to these children.”

¶ 7 In November 2007, ADES filed a dependency petition alleging the children were dependent under A.R.S. § 8-201(13)(a)(i) (Supp.2008) because Father: 1) had physically abused M.F.; 2) neglected M.F. by not taking her to the emergency room for her shoulder injury; 3) was unable to parent due to substance abuse; and 4) was unable to parent due to his failure to report A.F.'s sexual abuse and to protect his children from the head-on collision.

¶ 8 On January 4, 2008, the parties participated in a court-ordered mediation that resulted in a proposed family reunification plan. Father denied the petition but agreed to submit to the dependency on the record. He also agreed to participate in F.I.R.S.T., UAs, Intensive Outpatient Treatment, and parenting classes. Father also agreed to obtain stable housing and employment. CPS noted Father's slow progression and indicated that if he did not begin to comply more fully with his case plan tasks, CPS would seek to change the case plan from reunification to severance and adoption.

¶ 9 Father subsequently participated in the parent aide-services, psychological evaluation, and visitations. However, on March 31, 2008, the November 2007 physical abuse of M.F. was reported to the police. In April 2008, a no-contact order was issued denying Father visitation with M.F. Thereafter, Father never contacted CPS to inquire about the children's well-being.

¶ 10 Further, Father missed UA testing and tested positive for marijuana on January 16, January 17, and February 6, 2008, and alcohol on September 2 and September 15, 2008. He refused to enter a halfway house as recommended by his treatment providers. Father was discharged from his drug treatment after testing positive for marijuana; however, he re-entered the program after showing he had been clean for thirty days. After two more failed UAs, Father was discharged again and was terminated from treatment for the last time in October 2008 due to a failure to accept responsibility for his positive UAs.

¶ 11 On February 4, 2009, in a separate action, a jury found Father guilty of reckless child abuse for placing M.F. in a situation in which her person or health was endangered pursuant to A.R.S. §§ 13-3623(A)(2) and -3601(A)(4) (Supp.2008). However, the jury was unable to decide whether Father had intentionally caused the injuries to M.F.

¶ 12 On February 5, 2009, ADES filed an amended petition for termination of Father's parental rights pursuant to A.R.S. § 8-533(B)(2), (3), and (8)(a). Following a contested severance hearing, the juvenile court found by clear and convincing evidence that: 1) Father is unable to discharge his parental responsibilities because of his chronic abuse of dangerous drugs and alcohol, and it reasonably believed Father's drug abuse would continue; 2) diligent efforts have been made for reunification but Father failed to remedy issues that caused the children to be in out-of-court placement; and 3) severance was in the best interest of the children, and the children were adoptable. The juvenile court issued its “Findings of Fact, Conclusions of Law, and Order” on May 28, 2009. Father timely appealed on June 2, 2009. We have jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12.120.21(A)(1) (2003), and 12-2101(A)(B) (2003).

STANDARD OF REVIEW

¶ 13 “The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App.2002) (citation omitted). Thus, on appeal we review the juvenile court's findings of fact for clear error Anonymous v. Anonymous, 25 Ariz.App. 10, 12, 540 P.2d 741, 743 (1975), and view the evidence in the light most favorable to affirming its decision. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted). We will only reverse the juvenile court's decision if there is no reasonable evidence to support its findings. Anonymous, 25 Ariz.App. at 12, 540 P.2d at 743.

DISCUSSION

¶ 14 Father contends there was insufficient evidence to support the juvenile court's findings and conclusions on each of the statutory grounds. He also argues that the evidence does not support the court's finding that termination of parental rights was in the best interest of the children. While the court terminated Father's parental rights on a number of statutory grounds pursuant to A.R.S. § 8-533(B), we will affirm the termination if any one of the statutory grounds is proven and if the termination is in the best interest of the children. Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205. We conclude that the court did not err in terminating Father's parental rights under A.R.S. § 8-533(B)(3) and accordingly do not address the other statutory grounds for termination.

¶ 15 To terminate parental rights under § 8-533(B)(3), a court must find that: 1) parent has a history of chronic abuse of controlled substances or alcohol; 2) parent is unable to discharge parental responsibilities because of his chronic abuse of controlled substances or alcohol; and 3) there are reasonable grounds to believe that the condition will continue for a prolonged and indeterminate period. Proof of the statutory grounds for termination must be by clear and convincing evidence. A.R.S. § 8-537(B) (2007); Kent K. v. Bobby M., 210 Ariz. 279, 280, ¶ 1, 110 P.3d 1013, 1014 (2005). However, the court need only find by a preponderance of the evidence that severance is in the child's best interest. Kent K., 210 at 283, ¶ 22, 110 P.3d at 1017.2

I. History of Chronic Drug Abuse

¶ 16 Father claims that there was insufficient evidence to establish chronic substance abuse because he tested positive for marijuana or alcohol sporadically rather than at every UA test. Under § 8-533(B)(3), a juvenile court must find a history of “chronic” abuse of...

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