                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      BRENDA M., PETER O., Appellants,

                                         v.

            DEPARTMENT OF CHILD SAFETY, Z.M., Appellees.

                              No. 1 CA-JV 15-0152
                                FILED 11-3-2015


            Appeal from the Superior Court in Maricopa County
                              No. JD27368
                   The Honorable Connie Contes, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Brenda M.

Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Peter O.

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellees
                   BRENDA M., PETER O. v. DCS, Z.M.
                        Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1            Brenda M. (“Mother”) and Peter O. (“Father”) each appeal the
juvenile court’s order terminating their parental rights to their minor child,
Z.M. The order terminated Mother’s rights on the ground of chronic
substance abuse pursuant to A.R.S. § 8–533(B)(3) and Father’s rights on the
ground of abandonment pursuant to A.R.S. § 8–533(B)(1). For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             One day after Z.M.’s birth in September 2013, the hospital
reported to the Department of Child Safety1 (“Department”) that Z.M. had
tested positive for amphetamine—a metabolite of methamphetamine. The
Department sent an investigator to the hospital, to whom Mother admitted
that she used methamphetamine approximately twice per month for one
year before Z.M.’s birth. She also admitted that although she attempted to
quit after learning of her pregnancy, she used methamphetamine the week
before delivery because she felt overwhelmed with having another child.
The Department did not remove Z.M., but required Mother to submit to
drug tests and live with a safety monitor. The Department also provided
Mother with several services, including referrals to the TASC and TERROS
centers for drug testing and treatment. Mother initiated services with both
centers in October.

¶3            However, in the following weeks Mother missed many of the
drug tests required by the centers and tested positive for methamphetamine
on the ones she completed. Additionally, in November 2013 a case manager
found Mother at home with Z.M. outside of the safety monitor’s presence.
Consequently, the Department petitioned for dependency, alleging that
Mother neglected Z.M. due to substance abuse and continuously tested


1      The Department of Child Safety is substituted for the Arizona
Department of Economic Security. See S.B. 1001, Section 157, 51st Leg., 2nd
Spec. Sess. (Ariz. 2014) (enacted); Ariz. R. Civ. App. P. 27.


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                   BRENDA M., PETER O. v. DCS, Z.M.
                        Decision of the Court

positive for methamphetamine. The Department then placed Z.M. with her
maternal grandmother but allowed Mother supervised visitations with
Z.M. and visit-only parent aide. The case manager informed Mother that to
reunify with Z.M. she must participate in TASC urinalysis drug testing and
TERROS mouth-swab drug testing. Additionally, the Department stated
that Mother would have to demonstrate that she would live a drug-free life.

¶4            The next month, Mother and Father—who were not in a
relationship—took Mother’s three children, including Z.M., from their
respective placements without the Department’s authorization. The
Department later found them in a Phoenix hotel room with weapons and
drugs. As a result, the State incarcerated Mother and Father for custodial
interference, and the Department placed Z.M. in a foster home. Between
Z.M.’s birth and Mother’s incarceration, Mother submitted to eight of the
required 17 TASC urinalysis drug tests. Of those eight, all returned positive
for methamphetamines. Due to her incarceration, the drug treatment
centers terminated Mother’s services.

¶5           Upon her release from jail nearly three months later, the
juvenile court found Z.M. dependent as to Mother. The Department
immediately re-referred Mother to both TASC and TERROS. Mother did
not report for testing at TASC, but did attend her TERROS intake. The
intake report noted that it “appears as though the severity of [Mother’s]
substance use is greater than what she disclosed.” The report also
recommended that Mother participate in intensive outpatient care
including substance abuse classes and drug testing.

¶6            Mother sporadically attended her substance abuse classes and
drug tests at TERROS. In the month following her intake, Mother tested
positive for methamphetamine six times. After the sixth positive test,
Mother stopped attending the TERROS classes so the center terminated her
services. The Department re-referred Mother again in August, but Mother
reported to the substance abuse classes only after TERROS sent her a ten
day termination notice. Mother also began submitting urinalysis drug tests
at TASC. In the five months from September 2014 to the date of the
severance hearing, TASC and TERROS required Mother to submit to drug
tests 42 times, but she did so only six times—each negative for
methamphetamine.

¶7           While Mother struggled with her substance abuse issue,
Father remained incarcerated. Three months after the Department
petitioned for dependency as to Mother, the Department amended its
petition to allege that Father failed to maintain a normal parental


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                   BRENDA M., PETER O. v. DCS, Z.M.
                        Decision of the Court

relationship with Z.M. or to provide for her basic needs.2 Father denied the
allegations and requested a paternity test. The juvenile court ordered
genetic testing of Father and Z.M. three months later, which both
completed. The results confirmed Father’s paternity, and the juvenile court
found Z.M. dependent as to Father. During his incarceration, the
Department told Father that he could send cards, letters, and gifts to Z.M.
through the case manager. The case manager visited Father in jail once and
sent multiple letters to him about communicating with Z.M. However,
Father never asked about Z.M. nor sent her anything during his
incarceration.

¶8           In November 2014, the Department moved to terminate
Mother’s parental rights on the ground of chronic substance abuse and
Father’s parental rights on the ground of abandonment, pursuant to A.R.S.
§ 8–533(B). Mother and Father objected, and the juvenile court conducted a
contested severance hearing for Z.M. four months later. Father, who
remained incarcerated, invoked his Fifth Amendment right to remain silent
and refused to answer any questions, including those relating to the efforts
he had made to establish and maintain a relationship with Z.M. When
asked if he had sent anything to Z.M. or whether he felt that he failed to
maintain a relationship with her, Father responded “I plead the Fifth . . .
You’re wasting your time . . . I don’t got nothing to say to you.” The juvenile
court informed Father that it may draw a negative inference from his
invocation; Father indicated that he understood by telling the judge “I
know the law . . . I’m aware, ma’am.” The Department’s case manager
opined that Father had failed to maintain a normal parental relationship
with Z.M.

¶9            Mother testified that she was not a drug addict. The case
manager, however, testified that Mother’s inconsistent drug testing and
participation in services led the Department to believe that she actively
used methamphetamine and only submitted to tests when sober. The case
manager also testified that while Mother acted attentively toward Z.M.
during her supervised visitations and responded appropriately,
termination was in Z.M.’s best interests because Z.M. deserved
permanency. She further testified that termination was in Z.M.’s best
interests because her foster placement provided safety and Mother could
not demonstrate sobriety. Z.M.’s guardian ad litem also stated that
termination was in Z.M.’s best interests. She stated that this was especially

2      The original dependency petition filed in November 2013 listed the
incorrect person as Z.M.’s father. The juvenile court therefore granted the
Department leave to amend the petition.


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                    BRENDA M., PETER O. v. DCS, Z.M.
                         Decision of the Court

so due to Z.M.’s young age and that she was in a “safe, stable environment
that’s willing to provide her with permanency.” A Department progress
report to the juvenile court stated that Z.M.’s foster placement met her
needs and was the least restrictive, and that Z.M. thrived in that
environment.

¶10            The juvenile court terminated Mother’s and Father’s parental
rights. It found Mother unable to discharge her parental responsibilities
because of her chronic substance abuse and that reasonable grounds existed
to believe it would continue. The juvenile court also found that Father had
failed to maintain a normal parental relationship with Z.M. since his
incarceration, and drew a negative inference from Father’s refusal to testify
otherwise at the hearing. Finally, the juvenile court found that termination
was in Z.M.’s best interests. Mother and Father timely appealed.

                                DISCUSSION

              1. Grounds for Termination

¶11           Mother and Father argue that insufficient evidence supports
the juvenile court’s order terminating their parental rights to Z.M. We
review termination orders for an abuse of discretion and affirm unless
clearly erroneous. Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11, 280 P.3d 640,
644 (App. 2012). As the trier of fact, the juvenile court is in the best position
to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make findings. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280 ¶ 4, 53 P.3d 203, 205 (App. 2002). We accept the juvenile court’s
factual findings if reasonable evidence supports them. Id. We view the
evidence and all reasonable inferences in the light most favorable to
upholding the juvenile court’s order. Manuel M. v. Ariz. Dep’t of Econ. Sec.,
218 Ariz. 205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).

              a. Termination of Mother’s Parental Rights

¶12           Mother argues that the juvenile court erred in terminating her
parental rights because the Department failed to prove by clear and
convincing evidence that she met the statutory elements of chronic
substance abuse. To terminate parental rights, the juvenile court must find
by clear and convincing evidence the existence of at least one statutory
ground under A.R.S. § 8–533(B) and by a preponderance of the evidence
that termination would serve the child’s best interests. Ariz. R.P. Juv. Ct.
66(C). Additionally, the juvenile court must consider the “availability of
reunification services to the parent and the participation of the parent in
these services.” A.R.S. § 8–533(D). To terminate a parent’s rights under


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                    BRENDA M., PETER O. v. DCS, Z.M.
                         Decision of the Court

chronic substance abuse, the juvenile court must find that: (1) the parent
has a chronic history of substance abuse; (2) the parent is unable to
discharge parental responsibilities because of her chronic substance abuse;
and (3) reasonable grounds exist to believe that the abuse will continue for
a prolonged and indeterminate period. A.R.S. § 8–533(B)(3); Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377 ¶ 15, 231 P.3d 377, 381 (App. 2010).

¶13            The juvenile court did not err in finding each statutory
element satisfied here, or in finding that termination of Mother’s parental
rights was in Z.M.’s best interests. First, the record shows that Mother’s
abuse of methamphetamine had persisted for at least two years. Mother
admitted that she began using the drug twice per month approximately one
year before Z.M.’s birth, then continuously tested positive for
methamphetamine for a year after delivery. In addition, the evidence
supports the finding that Mother was unable to discharge her parental
responsibilities. Mother used methamphetamine one week before Z.M.’s
birth causing the child to test positive for amphetamine. Mother also put
Z.M. at risk by taking her from her placement home to a hotel room with
drugs and weapons. Finally, the evidence supports the finding that
reasonable belief existed that Mother’s abuse will continue for an
indeterminate period. Although Mother knew that she needed to live a
drug-free life to reunify with her child, she inconsistently participated in
drug treatment services and failed to submit to the majority of her required
drug tests. Of the tests she did submit, most were positive for
methamphetamine. See Raymond F., 224 Ariz. at 379 ¶ 29, 231 P.3d at 383
(“Father’s failure to remedy his drug abuse, despite knowing the loss of his
children was imminent, is evidence that he has not overcome his
dependence on drugs . . . .”). Finally, the record shows that the Department
made diligent efforts to provide Mother with reunification services
including the parent aide services, supervised visitations, and multiple
referrals to two drug treatment centers. Mother participated in some of
these services, but failed to make the necessary sobriety changes that
allowed for reunification.

¶14          Mother counters that the six negative drug tests since
September 2014 indicate that she is not a chronic substance abuser. During
that same period, however, Mother missed 36 other required drug tests.
Other than those few negative tests, no evidence suggests that Mother
remained drug-free for a sustained period. Additionally, Mother argues
that Mother’s “occasional and sporadic” use of methamphetamine does not
amount to chronic substance abuse. However, “drug abuse need not be
constant to be considered chronic.” Id. at 377 ¶ 16, 231 P.3d at 381. Thus,



                                        6
                   BRENDA M., PETER O. v. DCS, Z.M.
                        Decision of the Court

sufficient evidence supports the juvenile court’s finding that Mother’s
substance abuse justified termination of her parental rights.

              b. Termination of Father’s Parental Rights

¶15             Father argues that the juvenile court erred in terminating his
parental rights because its finding that he had abandoned Z.M. is clearly
erroneous and contrary to evidence in the record. To terminate a parent’s
rights for abandonment, the juvenile court must find “the failure of a parent
to provide reasonable support and to maintain regular contact with the
child, including normal supervision.” A.R.S. § 8–531(1). The statute further
requires the juvenile court to ask “whether a parent has . . . made more than
minimal efforts to support and communicate with the child.” Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 18, 995 P.2d 682, 685 (2000).
Abandonment is not measured by the parent’s subjective intent, but by the
parent’s conduct. Id. The burden to act as a parent rests with the parent. Id.
at 251 ¶ 25, 995 P.2d at 687. In determining whether a parent abandoned his
child, the juvenile court may consider whether a parent has sent cards, gifts,
or letters to the child. Id. at ¶ 24, 995 P.2d at 687.

¶16            The evidence supports the juvenile court’s finding that Father
abandoned Z.M. Father participated in the custodial interference of Z.M.,
indicating that Father knew of her during his incarceration. While
incarcerated, Father made necessary efforts to respond to the Department’s
amended dependency petition and to request paternity testing. However,
the Department case manager testified that Father took no such efforts to
communicate with Z.M. or maintain regular contact with her. The case
manager stated that she informed Father in person and in writing that he
could communicate with Z.M. through her, but that Father sent no cards or
letters, nor asked about Z.M.’s welfare. Additionally, the record shows that
Father did not provide reasonable support to Z.M. while he was in jail; the
case manager testified that Father did not send gifts or anything else to
support to Z.M. Further, Father’s incarceration prevented him from
supervising Z.M. Finally, the record shows that the Department made
diligent efforts to provide Father with these services by visiting him in the
jail and sending him multiple letters informing him of his ability to
communicate with Z.M. through the case manager.

¶17           Father counters that his lack of contact with Z.M. is
“excusable” because the Department deprived him of any relationship with
the child, but cites no statutory authority or case law supporting that
contention. In essence, Father argues that he could not maintain a normal
parental relationship with Z.M. because Department policy prohibits


                                      7
                   BRENDA M., PETER O. v. DCS, Z.M.
                        Decision of the Court

inmates from visiting with children unless paternity is established, and
because his paternity testing took several months to complete. However,
when a father cannot “exercise traditional methods of bonding with his
child, he must act persistently to establish the relationship however
possible and vigorously assert his legal rights to the extent necessary.”
Matter of Appeal in Pima Cty. Juvenile Severance Action No. S–114487, 179 Ariz.
86, 97, 876 P.2d 1121, 1132 (1994). Father did not act persistently to establish
a relationship with Z.M. however possible. Although he could not have
visitations with Z.M. until paternity was established, Father had other
means to establish a parental relationship. Father never accepted the
Department’s offer to deliver cards, letters, or gifts to Z.M. on his behalf.
Additionally, the record shows that Father never requested visitation with
Z.M. once his paternity was confirmed. Thus, sufficient evidence supports
the juvenile court’s finding that Father’s actions constituted abandonment
and justified termination of his parental rights.

              2. Best Interests of the Child

¶18            The record also shows that the termination of Mother’s and
Father’s parental rights was in Z.M.’s best interests. In determining a child’s
best interests, the juvenile court may consider whether the child’s current
placement meets the child’s needs. Bennigno v. Ariz. Dep’t of Econ. Sec., 233
Ariz. 345, 350 ¶ 23, 312 P.3d 861, 866 (App. 2013). The juvenile court may
also take into account that the presence of a statutory ground, in most cases,
will have a negative effect on the child. Id. Here, the Department progress
report stated that Z.M.’s foster placement met her needs and that she
thrived in that environment. Further, the case manager and guardian ad
litem both testified that termination would be in Z.M.’s best interests
because Z.M.’s foster placement provided her with safety, stability, and
permanency. Finally, the juvenile court could take into consideration that
Mother’s substance abuse and Father’s abandonment had a negative effect
on Z.M. Accordingly, the juvenile court did not err in determining that
termination of Mother’s and Father’s parental rights was in Z.M.’s best
interests.




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           BRENDA M., PETER O. v. DCS, Z.M.
                Decision of the Court

                     CONCLUSION

¶19   For the foregoing reasons, we affirm.




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