Opinion
No. 2 CA-JV 2014-0048
08-28-2014
VERONICA C., Appellant, v. DEPARTMENT OF CHILD SAFETY AND K.C., Appellees.
COUNSEL Scott W. Schlievert, Tucson Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel By Deborah Abbey, Tucson Counsel for Appellee K.C.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. J201201
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL Scott W. Schlievert, Tucson
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel
By Deborah Abbey, Tucson
Counsel for Appellee K.C.
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Veronica C. appeals from the juvenile court's order terminating her parental rights to her daughter, K.C., born in July 2011, on the grounds of neglect pursuant to A.R.S. § 8-533(B)(2) and court-ordered time in care pursuant to § 8-533(B)(8)(c). Veronica argues that there was insufficient evidence she would not be able to parent K.C. in the near future and that the court erred in finding termination was in K.C.'s best interests. We affirm.
The juvenile court also terminated the parental rights of K.C.'s father, who is not a party to this appeal.
¶2 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination of the parent's rights is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M, 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] court's decision, and we will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009) (citations omitted). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶3 In April 2012, the Department of Child Safety removed then eight-month-old K.C. from the home Veronica shared with "a known methamphetamine user." Officers found heroin and methamphetamine in a bowl in the room Veronica shared with K.C. which were accessible to K.C. A hair test performed on K.C. revealed the presence of amphetamines, methamphetamine, opiates, morphine, and heroin.
The Department of Child Safety (DCS) is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, § 20.
¶4 Veronica admitted the allegations in the dependency petition, including that she was actively using heroin and methamphetamine, that she had been arrested for possession of heroin, and that the home where she lived with K.C., which was unfit and unsafe for her, contained drugs accessible to K.C. and was frequented by individuals who use and sell methamphetamine in the home. K.C. was adjudicated dependent as to Veronica in May 2012.
¶5 Veronica began participating in various services, albeit sporadically, including drug testing, substance abuse education, relapse prevention, individual counseling, and parenting classes. Her referral for supervised visits and parent aide sessions was closed due to "missed and cancelled visits," and Veronica left an in-patient, drug-treatment facility less than a week after she entered it in April 2012. Veronica was incarcerated on drug-related charges from November 2012 until May 2013. She was offered additional services upon her release, including supervised visits with K.C., substance-abuse treatment, random drug testing, group and individual therapy, and a psychological evaluation.
¶6 At a July 2013 dependency review hearing, the juvenile court noted that although DCS had provided appropriate reunification services and Veronica had been partially compliant with her case plan, K.C. nonetheless had "been in an out-of-home placement for more than 15 months and the parents [were] very far away from reunifying with [her]." It thus ordered the case plan changed to severance and adoption and directed DCS to file a motion to terminate the parents' rights to K.C. A few weeks after DCS filed the motion based on grounds of neglect, chronic substance abuse, and court-ordered, out-of-home placement of fifteen months or longer as to Veronica, see § 8-533(B)(2), (3), (8)(c), Veronica tested positive for cocaine and methamphetamine in two separate drug tests.
Veronica's urine sample yielded a positive cocaine result, indicating she had used cocaine two or three days before the August 2013 test, and a saliva test taken a few days later yielded a positive result for methamphetamine. Pointing out that a hair test done in October 2013 was negative for "methamphetamine, cocaine, opiate, PCP, and THC," Veronica notes that the October results reflect drug usage for ninety days before the test, which includes the time period reflected in the positive August 2013 test results. She thus denies having used "any drugs" when the August 2013 tests were done and does "not consider the results of [those] tests to have interrupted her sobriety." Veronica's assertion, however, does not meaningfully address evidence presented at the severance hearing that, "if an individual uses a drug once or twice it may not show up in a hair test."
¶7 After a five-day severance hearing held between November 2013 and February 2014, the juvenile court rejected severance on the ground of chronic substance abuse, but determined severance was appropriate based on neglect and out-of-home placement. The court further found severance was in K.C.'s best interests.
¶8 Veronica contends the juvenile court erred in finding termination warranted on the time-in-care ground, asserting there was insufficient evidence she would not be able to parent K.C. in the near future. See A.R.S. § 8-533(B)(8)(c). However, Veronica does not challenge the court's additional finding that termination was warranted on the ground of neglect. Indeed, in her opening brief, Veronica states that she "does not dispute that, based on the circumstances that existed at the time K.C. was removed, the Juvenile Court acted within its discretion in finding that there was clear and convincing evidence that [Veronica] had neglected K.C." Any challenge to this ground is therefore waived. See Childress Buick Co. v. O'Connell, 198 Ariz. 454, ¶ 29, 11 P.3d 413, 418 (App. 2000) ("[I]ssues not clearly raised in appellate briefs are deemed waived."). Even if we were to find that the court had erred in terminating Veronica's parental rights on the ground of out-of-home placement, we would nonetheless affirm if there is reasonable evidence to support the court's findings as to neglect. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3, 53 P.3d 203, 205 (App. 2002) (appellate court need not consider challenge on alternate grounds for severance if evidence supports any one ground). Because Veronica does not contest the court's finding that termination was justified on the ground of neglect, we need not address her argument on appeal regarding the ground of out-of-home placement.
In her reply brief, Veronica asserts that her opening brief "did not specifically deal with the neglect ground[]," and she maintains that it "remains an issue" on appeal because she was no longer neglecting K.C. at the time of the severance hearing. To the extent this oblique reference to the ground of neglect could be considered a substantive argument, because it was not raised or supported in her opening brief, but raised for the first time in a reply, this argument is deemed waived. Romero v. Sw. Ambulance, 211 Ariz. 200, n.3, 119 P.3d 467, 471 n.3 (App. 2005) (appellate court not required to address issues first raised in reply brief); see also Ariz. R. Civ. App. P. 13(c); Ariz. R. P. Juv. Ct. 106(A). And even if the argument were not waived, Veronica has failed to explain how the juvenile court erred by terminating her parental rights based on neglect. See Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, ¶ 10, 237 P.3d 632, 635 (App. 2010) (claim waived for insufficient argument).
The record contains ample evidence to support the juvenile court's finding that Veronica neglected K.C. by exposing her to illegal drugs and to individuals using and selling those drugs, thereby exposing her to an unreasonable risk of harm. Section 8-201(24)(a), A.R.S., defines "Neglect" as "[t]he inability or unwillingness of a parent . . . to provide [a] child with supervision . . . if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." As discussed above, Veronica concedes that "the Juvenile Court acted within its discretion in finding that there was clear and convincing evidence that [she] had neglected K.C.," and "acknowledges and deeply regrets that through her prior involvement with illegal substances she exposed K.C. to an unreasonable risk of harm."
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¶9 Veronica also contends termination is not in K.C.'s best interests because she is now "willing and able to be [a] fit parent for [K.C.], and is very likely to be able to do [so] in the near future." However, "[o]nce a court determines that a parent is unfit, the focus shifts to the interests of the child as distinct from those of the parent." Kent K., 210 Ariz. 279, ¶ 31, 110 P.3d at 1019. To establish that termination is in a child's best interests, DCS must prove that the child either would benefit from severance or be harmed if the parental relationship continues. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 19, 83 P.3d 43, 50 (App. 2004). "In combination, the existence of a statutory ground for severance and the immediate availability of a suitable adoptive placement for the children frequently are sufficient to support a severance order." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 8, 100 P.3d 943, 946 (App. 2004).
¶10 In determining that severance was in K.C.'s best interests, the juvenile court found:
Termination of the relationship would benefit [K.C.] because she needs and deserves permanency in a safe, stable and supportive living environment. She is adoptable, and her long term foster care placement has expressed an[] interest and desire to adopt her. She is well bonded to her foster family, and removing [K.C.] from her foster family's placement would be very harmful and difficult for this child.
Terminating the child-parent relationship of [K.C.] and her parents would free her for adoption and provide her the opportunity to achieve permanency in the near future in a safe, stable and supportive living environment. Neither parent at present, or into the foreseeable future will be able to provide to [K.C.] permanency in a safe, stable, and supportive living environment. Failing to terminate the parents' parent-child relationship with [K.C.] will unnecessarily and unfairly delay her in achieving permanency into the indefinite future.
¶11 The record contains ample evidence to support the juvenile court's best-interests findings. K.C. has been with the same foster family since she was removed from Veronica's care in 2012; she has a "loving and nurturing relationship" with and "appears very attached" to that family, who is meeting her needs and wants to adopt her. K.C.'s case managers testified that K.C., who had been "laughing" and "interactive" when she did not have contact with Veronica, became "reserved" and "withdrawn" and exhibited "a heightened level of anxiety" once Veronica was released from prison and began visiting her again. They also testified that K.C. would likely exhibit more regression and "extreme anxiety" if she were removed from the "safe haven" of her current placement.
¶12 Accordingly, for all of the reasons stated, we affirm the juvenile court's order terminating Veronica's parental rights to K.C.