Michelle H. v. Dcs ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHELLE H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.C., Z.H., K.H., Appellees.
No. 1 CA-JV 18-0480
FILED 7-11-2019
Appeal from the Superior Court in Maricopa County
No. JD 530364
The Honorable Jennifer E. Green, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Doriane F. Zwillinger
Counsel for Appellee, Department of Child Safety
MICHELLE H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Kenton D. Jones joined.
B R O W N, Judge:
¶1 Michelle H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to K.C., Z.H., and K.H. (collectively, “the
children”), asserting the evidence does not sufficiently support the
statutory grounds and termination is not in the children’s best interests. For
the reasons that follow, we affirm.
BACKGROUND
¶2 Mother is the biological parent of K.C., born in 2006, and
twins, Z.H. and K.H., born in 2010. Elton C. is the biological father of K.C.
and asserted parental rights to Z.H. and K.H. but his paternity was not
established, and he is not a party to this appeal.1
¶3 In October 2016, a private dependency petition was filed
alleging the children were dependent due to Mother’s drug use and neglect.
Specifically, the petition alleged Mother used drugs around the children;
the children went days without eating and frequently missed school; and
the house had bed bugs. The juvenile court entered temporary orders,
which made the children temporary wards of the court and placed them
with the petitioner. At the initial dependency hearing, the court granted a
motion by the Department of Child Safety (“DCS”) to substitute DCS as the
petitioner. DCS subsequently filed an amended dependency petition,
alleging Mother was unable to parent due to substance abuse and neglect
and asserting Mother uses “illicit substances and presented to the
Department with sores on her face consistent with the effects of drug use”
and was unable to provide for the children’s basic needs in that they live
without electricity for days at a time, go without food for extended periods,
and miss excessive amounts of school. In February 2017, the court found
the children dependent.
1 In August 2018, the court terminated Elton C.’s parental rights to all
three children and terminated John Doe’s parental rights to K.H. and Z.H.
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MICHELLE H. v. DCS, et al.
Decision of the Court
¶4 In April 2018, DCS moved to terminate Mother’s parental
rights, alleging the grounds of chronic substance abuse and 15 months’ out-
of-home placement. Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (B)(8)(c). DCS
also asserted termination was in the best interests of the children because it
would allow them to be adopted. Following a two-day termination
hearing, the juvenile court granted DCS’s motion on both grounds,
explaining its ruling in a 20-page order. Mother timely appealed.
DISCUSSION
¶5 Mother challenges the sufficiency of the evidence supporting
the statutory grounds for termination. When the juvenile court finds clear
and convincing evidence supports multiple grounds for termination, we
will affirm if reasonable evidence and inferences support the court’s
findings as to any of the grounds in the order. See Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 3, ¶ 9 (2016); Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 3 (App. 2002). We do not reweigh the evidence presented to the court
because the “resolution of conflicting evidence is ‘uniquely the province of
the juvenile court’ . . . even when ‘sharply disputed’ facts exist.” Alma S. v.
Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018) (citations omitted).
¶6 To terminate based on 15 months’ out-of-home placement, the
evidence must clearly and convincingly establish (1) the children have been
in an out-of-home placement for a cumulative period of 15 months or
longer; (2) DCS has made a “diligent effort to provide appropriate
reunification services”; (3) the parent has not remedied the circumstances
requiring the out-of-home placement; and (4) “there is a substantial
likelihood that the parent will not be capable of exercising proper and
effective parental care and control in the near future.” A.R.S.
§ 8-533(B)(8)(c). The juvenile court must also consider “the availability of
reunification services . . . and the participation of the parent in these
services.” A.R.S. § 8-533(D). Mother concedes the children have been in an
out-of-home placement for more than 15 months but asserts the court erred
because the evidence does not satisfy the statute’s other requirements.
¶7 Mother first challenges the juvenile court’s finding that DCS
made reasonable and diligent efforts to reunify the family, stating she “just
needs a little more time to complete services and reunify with the children.”
Mother’s specific argument regarding DCS’s efforts is unclear; however, to
the extent her argument seeks to challenge the adequacy of services offered,
the court expressly noted she did not raise that objection in any of the
proceedings. She has therefore waived any challenge in that regard.
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 16 (App. 2014).
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MICHELLE H. v. DCS, et al.
Decision of the Court
¶8 If Mother’s argument is geared towards asserting that DCS’s
efforts were not diligent because DCS did not afford her the “time and
opportunity to participate in programs designed to help her become an
effective parent,” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994), Mother has misconstrued DCS’s obligations. DCS must
provide services and give the parent an opportunity to engage in the
services. Id. But DCS is not required to ensure parents participate in or
complete any service, Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231,
235, ¶ 15 (App. 2011), nor is it required to wait an indefinite period before
moving for termination, Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz.
571, 577 (App. 1994). Here, the dependency and termination proceedings
occurred over the course of two years in which DCS offered Mother various
services, including parent aide, therapeutic visitations, drug testing,
substance abuse assessment and treatment, psychological evaluation,
psychiatric evaluation, and individual and group counseling. On this
record, reasonable evidence supports the juvenile court’s finding that DCS
met its obligation to make a diligent effort in providing appropriate
reunification services.
¶9 Mother also argues the juvenile court erred because she
proved she has remedied the circumstances leading to the out of home
placement or “will do so in the near future” by participating in and
completing the services offered. Mother’s argument is essentially a request
to reweigh the evidence, but our role is not to reweigh the evidence or
substitute our judgment for that of the juvenile court. Alma S., 245 Ariz. at
151, ¶ 18. Mother’s drug use was one of the primary issues causing the out-
of-home placement. The evidence presented at trial established that,
although she demonstrated periods of sobriety, Mother tested positive for
illegal drug use several times throughout the dependency and admitted to
using methamphetamine for her birthday in February 2018 (more than 15
months after the children were removed from her care). See Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010) (explaining that
a parent’s decision to use drugs “despite knowing the loss of [his or her]
children is imminent” is evidence of a continuing substance abuse
problem). Furthermore, Mother’s psychologist testified that until Mother
demonstrated one year of sobriety, she would not be considered “in
recovery” from a substance abuse problem. Mother had only been sober
for six months at the time of the termination hearing. We therefore
conclude that reasonable evidence supports the court’s finding that Mother
had been unable to remedy the circumstances causing the placement and
would not be able to do so in the near future.
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MICHELLE H. v. DCS, et al.
Decision of the Court
¶10 Mother also challenges the juvenile court’s finding that she is
not capable of safely parenting the children, arguing her completion of most
services DCS offered “establish[es] that [she] is capable of safely parenting
the children now or in the near future.” The court’s order explicitly
considered Mother’s progress throughout the proceedings, noting she had
“completed all services except she is still participating in both ongoing drug
testing . . . and individual counseling.” Despite this progress, the court
concluded that she “has not made any real behavior changes.”
Furthermore, the court was not persuaded that Mother demonstrated she
could safely parent the children because she “[m]ay have demonstrated
appropriate parenting in a controlled environment of visitation, but . . . [i]n
‘real life,’ Mother has . . . significant vulnerabilities and has not yet hit the
significant milestone of one-year sobriety, securing long-term stable
housing and employment, and managing her mental health.” Although
Mother does not agree with how the court viewed the evidence, reasonable
evidence supports its finding. Mother tested positive for drug use at
various times throughout the proceedings, was unemployed for the first
year and a half of the dependency, obtained housing only two months
before the hearing, and the DCS caseworker opined that Mother still “needs
medication management (consistent with her psychiatric evaluation).”
¶11 Finally, Mother challenges the juvenile court’s finding that
termination of her parental rights is in the children’s best interests, arguing
the court “did not give sufficient weight” to her participation in
reunification services or her bond with the children. After finding the
presence of a statutory ground for termination, the court must determine if
the preponderance of the evidence establishes termination is in the best
interests of the children. See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005). Termination is in a child’s best interests if the child will either
benefit from severance or be harmed if severance is denied. Alma S., 245
Ariz. at 150, ¶ 13. In making this determination, the court must consider
the totality of the circumstances, including “the parent’s rehabilitation
efforts,” but the children’s “‘interest in stability and security’ [is] the court’s
primary concern.” Id. at 150–51, ¶¶ 12, 13, 15 (citation omitted).
¶12 The juvenile court found that termination will benefit the
children “because they will be able to have permanency by way of adoption
[and] will not have to live in a home with substance abuse or unmanaged
mental health issues.” Mother does not challenge the court’s findings
regarding adoptability, and it is well-established that a court may find
termination will benefit the child when “the current placement meets the
child’s needs and [a] prospective adoption is otherwise legally possible and
likely.” Demetrius L., 239 Ariz. at 4, ¶ 12. The evidence presented at the
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MICHELLE H. v. DCS, et al.
Decision of the Court
hearing supports the court’s finding. The DCS caseworker testified that the
children are adoptable, their current placement is meeting their needs and
wants to adopt them, and K.C., who was close to turning 12 at the time of
the hearing, consented to the adoption. Cf. A.R.S. § 8-106 (A)(3) (explaining
that a child over 12 must consent to an adoption).
CONCLUSION
¶13 We affirm the juvenile court’s order terminating Mother’s
rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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