                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            CHAINE M., Appellant,

                                        v.

                 PAMELA R., CHARLES R., T.R., Appellees.

                             No. 1 CA-JV 14-0090
                               FILED 10-07-2014


           Appeal from the Superior Court in Maricopa County
                             No. JS507438
                  The Honorable James P. Beene, Judge

                                  AFFIRMED


                                   COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant

Curry Law Office, PLC, Chandler
By Andrea Curry
Counsel for Appellees



                       MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.
                     CHAINE M. v. PAMELA R., et al.
                         Decision of the Court

O R O Z C O, Judge:

¶1           Chaine M. (Mother) appeals from the termination of her
parental rights to T.R. (Child). For the following reasons, we affirm the
severance order.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Child was born in 2008. When Child’s parents divorced in
2012, the family court suspended Mother’s parenting time because she was
incarcerated and the court expressed concerns about Child’s safety in
Mother’s care. The decree of dissolution specifically noted that the father
(Father) requested sole custody of Child because Mother “has been using
drugs, is unstable in her living conditions, suffers from mental illness and
is refusing to take her medication, is violent and has threatened violence
against [Child].” The family court also stated that Mother had endangered
Child on several occasions, including one instance when Child was “found
outside the home walking around without supervision.” Finding that
“Mother’s mental health issues [were significant factors] in determining
child custody,” the family court awarded sole custody of Child to Father.

¶3           Several months after the divorce, Child’s paternal
grandparents, Pamela and Charles R. (Appellees), were appointed as
Child’s permanent guardians in juvenile court.1 Appellees petitioned to
terminate Mother’s parental rights in 2013, citing abandonment under
Arizona Revised Statute (A.R.S.) section 8-533.B.1 (West 2014)2 and
Mother’s mental illness, mental deficiency, or history of chronic abuse of
dangerous drugs, controlled substances or alcohol pursuant to A.R.S. § 8–
533.B.3 (West 2014).

¶4             At the severance hearing, Appellees testified that they wanted
to adopt Child and they had discussed adoption with Father. They further
testified that Father would voluntarily consent to the adoption, but they
were prepared to petition for severance if Father did not consent.

¶5           Appellees further testified that Mother had a long history of
mental illness and substance abuse. Mother threatened them in 2011 by
writing on an envelope sent from the Maricopa County jail that she wanted


1      Father is not a party to this appeal.

2      We cite to the current version of applicable statutes when no
revisions material to this decision have since occurred.


                                      2
                      CHAINE M. v. PAMELA R., et al.
                          Decision of the Court

“to shoot [their] brains out and eat them for lunch.” Appellees believed
severance was in Child’s best interests because in their care, Child was
“safe,” “thriving,” “in a stable environment,” and because Mother’s mental
health issues would likely continue. Additionally, Appellees testified that
they pursued severance to ensure Child could go to a good home if they
became unable to care for her.

¶6           Mother did not testify but admitted at the conclusion of the
hearing that she had “made many mistakes in the past,” had a “bi-polar
disorder” that caused “ups and downs in [her] life if gone untreated,” had
a “chemical addiction,” and was “unable and unsafe to parent, if in [her]
addiction.” Mother also stated she was “one year clean and sober” and
seeking treatment. Mother did not present any other evidence or
testimony.

¶7            The juvenile court granted severance, finding clear and
convincing evidence of abandonment and Mother’s mental illness and
chronic substance abuse. The court also found that severance would be in
Child’s best interests. Mother timely appealed, and we have jurisdiction
pursuant to A.R.S §§ 8-235.A, 12-120.21.A.1, and -2101.A (West 2014).

                                DISCUSSION

¶8             Mother contends on appeal that the juvenile court’s findings
were clearly erroneous. Terminating parental rights has two elements.
First, clear and convincing evidence must establish one of the statutory
grounds in A.R.S. § 8-533.B. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Second, the juvenile court must find
by a preponderance of evidence that severance is in the child’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 42, 110 P.3d 1013, 1022
(2005). In reviewing a termination order, we will not reweigh the evidence,
and view all evidence in the light most favorable to sustaining the juvenile
court’s rulings. Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 12,
323 P.3d 720, 723 (App. 2014). We will affirm the juvenile court’s findings
unless no reasonable evidence supports them. Id.

¶9             We first conclude that clear and convincing evidence
established the juvenile court’s findings under A.R.S. § 8-533.B.3, which
justifies termination of parental rights when:

       [T]he parent is unable to discharge parental responsibilities
       because of mental illness, mental deficiency or a history of
       chronic abuse of dangerous drugs, controlled substances or



                                       3
                     CHAINE M. v. PAMELA R., et al.
                         Decision of the Court

      alcohol and there are reasonable grounds to believe that the
      condition will continue for a prolonged indeterminate period.

¶10          Here, the record supports the juvenile court’s findings of
mental illness and chronic substance abuse with reasonable grounds to
believe the conditions would continue. Mother admitted that these
conditions made her an unfit parent when left untreated. Further, the
record indicates Mother is unpredictable in seeking treatment for her
mental health issues. Mother was hospitalized for her mental health
conditions as recently as February 2014, which required the severance
proceeding to be delayed for over a month.

¶11            Although Mother stated at the severance hearing that she was
“one year clean and sober,” the record indicates Mother was incarcerated
five months before the severance hearing for a probation violation
involving marijuana. Mother was also cited for eleven disciplinary
infractions by the Department of Corrections over the course of several
incarcerations in 2013, including one instance of criminal damage and three
instances of indecent exposure. Furthermore, Mother repeatedly attempted
to disobey the order in the dissolution decree precluding her from
contacting Child, and she presented no evidence of compliance with the
decree that established prerequisites for reinstating her parenting time.
Mother did attempt to have her parenting time reinstated by filing a
petition for a hearing in October 2012. Her petition was dismissed,
however, when both she and Father failed to appear at the return hearing
after being ordered to appear.3 This evidence supports the juvenile court’s
conclusion that Mother is unable to discharge her parental responsibilities
because of mental illness and substance abuse, and reasonable grounds
exist to believe Mother’s conditions will continue.4

¶12           Mother argues that the mere existence of mental illness or a
history of substance abuse does not sufficiently demonstrate an inability to

3      The appellate record contains only Mother’s October 2012 petition
for a hearing, but we take judicial notice of the family court’s orders
regarding Mother’s petition. See Regan v. First Nat. Bank, 55 Ariz. 320, 327,
101 P.2d 214, 217 (1940) (“courts [may] take judicial notice of other actions
involving similar parties and issues.”).

4      Because we conclude Mother’s history of mental illness and chronic
substance abuse was established by clear and convincing evidence, we do
not address the juvenile court’s finding of abandonment under A.R.S. § 8-
533.B.1.


                                     4
                     CHAINE M. v. PAMELA R., et al.
                         Decision of the Court

discharge parental responsibilities. Mother further asserts that no evidence
shows that her past diagnoses and substance abuse deprives her of a
present ability to effectively parent a child. We agree that the mere
existence of a past mental illness diagnosis or history of substance abuse is
insufficient as clear and convincing evidence of present inability. See Appeal
in Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, 558, 748 P.2d
785, 787 (App. 1988) (noting that proof of a clear and convincing statutory
ground for severance “must also show that [the] ground somehow deprives
the parent of the ability to effectively care for the child.”). However, the
juvenile court, as the fact finder, must determine not only whether past
mental illness or substance abuse exists, but also whether the evidence
establishes “reasonable grounds to believe that the condition will continue
for a prolonged indeterminate period.” A.R.S. § 8-533.B.3.

¶13             Here, the juvenile court specifically found that Mother was
unable to discharge her parental responsibilities based on the evidence
presented and “[t]here are reasonable grounds to believe that the condition
will continue for a prolonged indeterminate period.” The evidence
indicates that not only was Mother diagnosed with mental health and
substance abuse problems, but also that these conditions had previously
endangered Child and would continue in the future. Based on the evidence
presented, the juvenile court reasonably concluded that Mother’s
conditions continued to deprive Mother of an ability to care for Child.
Accordingly, we will not reverse the juvenile court, which was “in the best
position to weigh the evidence, judge credibility of the parties, observe the
parties, and make appropriate factual findings.” Bennigno R. v. Ariz. Dep’t
of Econ. Sec., 233 Ariz. 345, 351, ¶ 31, 312 P.3d 861, 867 (App. 2013) (quoting
In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458
(App. 1987)).

¶14            Mother also challenges the juvenile court’s finding that
severance was in Child’s best interests, arguing that the evidence failed to
establish that severance would benefit or remove a harm to Child. Finding
that terminating parental rights is in a child’s best interests requires a
juvenile court to conclude “either that the child will benefit from the
termination of the relationship or that the child would be harmed by
continuation of the relationship.” James S. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998). Making a best interests
determination necessarily obliges the juvenile court to balance the
fundamental liberty interest a parent has to control and care for his or her
child and the child’s fundamental interest in a “normal family home.” Kent
K., 210 Ariz. at 286, ¶ 34, 110 P.3d at 1020 (quoting Santosky v. Kramer, 455
U.S. 745, 759 (1982)).


                                      5
                     CHAINE M. v. PAMELA R., et al.
                         Decision of the Court

¶15           Mother asserts that the juvenile court’s best interests
determination is legally insufficient in the same way as the vacated
termination order in Jose M. v. Eleanor J., 234 Ariz. 13, 316 P.3d 602 (App.
2014). Mother specifically contends that Appellees’ adoptive plan “would
not establish an increase in stability and permanency” to the extent
necessary to justify severance. Mother’s reliance on Jose M., however, is
misplaced. In Jose M., Mother sought to terminate Father’s parental rights
so that her fiancé could adopt the child. Id. at 15, ¶ 8, 316 P.3d 602. The
juvenile court terminated Father’s rights and this court reversed and
remanded. Id. at 14, ¶ 1, 316 P.3d 603.

¶16            In Jose M., this court vacated the termination order because
the juvenile court misunderstood the record in finding abandonment by
clear and convincing evidence under A.R.S. § 8-533.B.1. The order was not
terminated because there was a legally insufficient determination of best
interests. Id. at 17, ¶ 19, 316 P.3d at 606. Although this court addressed the
termination order’s best interests finding, it did so to note that an adoptive
plan requiring severance of one parent’s rights to allow adoption by the
fiancé of the other parent “without more, [would] not establish an increase
in stability and permanency for [the child] to the degree necessary to
demonstrate a benefit warranting severance[.]” (Emphasis added.) Id. at 18,
¶ 23, 110 P.3d at 607.

¶17           Unlike the parent appealing the severance order in Jose M.,
more evidence supported the best interest in this case than just an adoptive
plan – specific evidence shows that Mother is unable to parent and provide
a safe environment for Child. Although Child’s living arrangements would
remain as they are currently, Appellees’ stated interest in adopting Child is
not the sole evidence that severance is in Child’s best interests. Mother’s
actions and patterns of behavior have previously endangered Child’s
safety, and those same patterns persist in Mother’s life. Based on the
preponderance of evidence, the juvenile court reasonably concluded that
terminating Mother’s parental rights would benefit or prevent harm to
Child, and we will not disturb that finding on appeal. Rocky J., 234 Ariz. at
440, ¶ 12, 323 P.3d at 723.




                                      6
                   CHAINE M. v. PAMELA R., et al.
                       Decision of the Court

                           CONCLUSION

¶18           We affirm the juvenile court’s order terminating Mother’s
parental rights.




                                  :gsh




                                   7
