Amber H. v. Dcs, E Al.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
AMBER H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.J., M.J., Appellees.
No. 1 CA-JV 19-0064
FILED 9-12-2019
Appeal from the Superior Court in Maricopa County
No. JD30758
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
AMBER M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
W I N T H R O P, Judge:
¶1 Amber H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to M.R.M.J. and M.J.J. (collectively, the
“children”). Mother argues insufficient evidence supported the court’s
finding that Mother was substantially unlikely to be able to safely parent
her children in the near future. See Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(8)(c). Mother also challenges whether the Department of
Child Safety (“DCS”) made diligent efforts in providing critical
reunification services. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Mother met Jonathan J. (“Father”) in 2011, while both were
homeless. They began a relationship which has persisted, on and off, for
nearly ten years. Throughout the relationship, Mother and Father
struggled with domestic violence incidents, mental health issues, and
substance abuse problems.
¶3 Mother’s and Father’s first child, M.R.M.J., was born in
January 2015; three months later, police were called to Mother’s and
Father’s home after reports of an altercation where Father threatened
Mother, yelled profanities at M.R.M.J., and, per some reports, became
physically violent. Following this incident, Mother obtained an order of
protection against Father prohibiting him from entering the home.
¶4 In July 2015, however, Mother violated the order of protection
by allowing Father back into the home and allowing him to be alone with
M.R.M.J., prompting DCS to file an in-home dependency petition. DCS
allowed M.R.M.J. to remain in the home with Mother under the supervision
1 We review the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
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AMBER M. v. DCS, et al.
Decision of the Court
of a safety monitor while both parents completed services for domestic
violence and substance abuse. When Mother failed to engage in services,
M.R.M.J. was removed from the home. Mother and Father’s second child,
M.J.J., was taken into custody shortly after her birth in 2016.
¶5 In the months after the children were taken into custody,
Mother engaged in a variety of services including individual counseling,
substance abuse testing and treatment, mental health services,2 and classes
on parenting and domestic violence. By March 2017, Mother had
successfully completed a Parent Aide program and was participating in all
services required by DCS.
¶6 Later in 2017, the parents began having unsupervised
visitation with the children, which eventually progressed to overnight
visitation during the weekends. At that time, the long-term plan for the
children was family reunification.
¶7 However, in April 2018, DCS shifted Father to supervised
visits after he tested positive for cocaine. In July 2018, Father again tested
positive for cocaine. As a result of Father’s continued drug use, DCS
created a safety plan in which Mother agreed to not allow Father to have
any contact with the children. After a DCS case worker came to Mother’s
home and verified that Father was no longer living there, DCS authorized
the continuing transition to reunification of the children with Mother.
¶8 On August 10, 2018, Mother called the children’s DCS case
manager and asked if there was anything else she needed to do regarding
services. At the end of the conversation, the case manager heard a child’s
voice say “Daddy” and became concerned that Father might be in the home.
An hour and a half later, the case manager made an unannounced visit to
Mother’s home and explained her concern that Father was in the home.
Mother denied Father was in the home and accompanied the case manager
through a search of the home. After finding no evidence that Father was or
had been in the home, the case manager moved to leave but found Father
hiding—without shirt or shoes—behind the front door. Father’s presence
2 Mother has struggled with depression, suicidal thoughts, and
bipolar disorder with psychosis features, including visual and auditory
hallucinations. In addition, she was diagnosed with dependent personality
disorder, meaning she was highly reliant on others, including Father.
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AMBER M. v. DCS, et al.
Decision of the Court
in the home violated the safety plan, and Mother offered no explanation as
to why he was present.3
¶9 On September 27, 2018, the juvenile court changed the case
plan to severance and adoption. DCS then moved to terminate Mother’s
parental rights on the grounds of out-of-home placement for fifteen months
or longer, alleging a substantial likelihood Mother would not be capable of
exercising proper and effective parental care in the future, see A.R.S. § 8-
533(B)(8)(c).
¶10 On February 12 and 28, 2019, the juvenile court held the
contested severance hearing. After taking the matter under advisement, the
court terminated Mother’s parental rights to the children on the grounds of
fifteen-month out-of-home placement under DCS supervision, see A.R.S.
§ 8-533(B)(8)(c), while further finding that severance was in the children’s
best interests. 4
¶11 Mother filed a timely notice of appeal. 5 We have jurisdiction
pursuant to A.R.S. § 8-235(A) and Rule 103(A) of the Arizona Rules of
Procedure for the Juvenile Court.
ANALYSIS
I. Standard of Review
¶12 A court may sever parental 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 severance is in the children’s best
interests. See A.R.S. §§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz. 279,
281-82, 288, ¶¶ 7, 41 (2005).
3 Father originally asserted he had only arrived a few minutes before
the case manager to drop off food to the children. Another time, he claimed
he was in the home only to pick up clothes. Later, he admitted Mother had
used his phone to call DCS, which meant he had been in the home for at
least an hour and a half before the case manager arrived.
4 The juvenile court found insufficient evidence to justify termination
based on Mother’s mental health or substance abuse.
5 Father did not appear for either trial date, and the court terminated
his parental rights. Father is not party to this appeal.
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AMBER M. v. DCS, et al.
Decision of the Court
¶13 The juvenile court retains great discretion in weighing the
interests of the child, parent, and state. Cochise Cty. Juv. Action No. 5666-J,
133 Ariz. 157, 160 (1982). As the trier of fact in a termination proceeding,
the juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009)
(quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App.
2004)). Thus, the resolution of conflicts in the evidence is uniquely the
province of the juvenile court, and we will not reweigh the evidence in our
review. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App.
2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115 (1978) (“In
considering the evidence it is well settled that an appellate court will not
substitute its own opinion for that of the trial court.” (citation omitted)). We
will not disturb the juvenile court’s order unless no reasonable evidence
supports its factual findings. See Matthew L., 223 Ariz. at 549, ¶ 7.
II. Adequacy of Services
¶14 On appeal, Mother argues DCS failed to make diligent efforts
in providing critical reunification services. Specifically, Mother contends
that she was unable to obtain additional court-ordered domestic violence
counseling because DCS failed to assign her counseling referral to a
provider. In response, DCS argues Mother waived any argument regarding
the adequacy of services when she failed to specifically raise that issue in
the juvenile court. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
178-79, ¶¶ 16, 18 (App. 2014) (holding the mother’s failure to raise an issue
until appeal “waived [her] right to argue for the first time on appeal that
ADES failed to offer appropriate reunification services.”). In the
alternative, DCS contends reasonable evidence supports the juvenile
court’s finding that DCS made diligent efforts to provide appropriate
reunification services. We address Mother’s appeal on the merits because
she testified at the termination hearing that she had previously told DCS
she wanted to engage in additional domestic violence counseling.
¶15 In order to terminate Mother’s parental rights, DCS must
show that it provided adequate time and opportunity for Mother to
participate in programs “designed to help her become an effective parent.”
See Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
However, DCS is not required to provide every imaginable service, ensure
the parent participates in all available services, or provide services that
would be futile. See Tanya K. v. Dep’t of Child Safety, 240 Ariz. 154, 157, ¶ 11
(App. 2016) (citation omitted). DCS must simply show that it provided the
parent with services “which offer a reasonable possibility of success” that a
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Decision of the Court
parent will be allowed to reunify with her children. Mary Ellen C. v. Ariz.
Dep’t of Econ. Sec., 193 Ariz. 185, 187, ¶ 1 (App. 1999).
¶16 Contrary to Mother’s assertions, we find there is reasonable
evidence to support the juvenile court’s findings that the services provided
by DCS were adequate.6 Mother testified that she received domestic
violence counseling through the Parent Aide program in 2016 and
completed all of her program goals relating to domestic violence. In
addition, the DCS case manager testified that Mother had also received
domestic violence counseling along with her individual counseling from La
Frontera.7 Mother did not deny receiving any of these services, she merely
asserted she should have been given additional domestic violence services.
The case law, however, consistently holds that DCS “is not required to
provide every conceivable service” for a parent. JS-501904, 180 Ariz. at 353.
Although Mother testified at the termination hearing she wished she had
additional time for further domestic violence counseling, she
acknowledged that she had received “quite a bit of [domestic violence]
education and classes” over the years and that she was able to recognize the
signs of domestic violence and appreciate the harm it causes. On this
record, we agree with the juvenile court that the services provided to
Mother gave her an adequate opportunity to address her issues with
domestic violence and help reunify her family.
6 Mother was offered a variety of services in relation to this case
including the Parent Aide program, supervised visitation, drug testing,
substance abuse assessment and treatment, case management,
transportation, psychological and psychiatric evaluations, and individual
counseling. Because Mother only challenges the sufficiency of services
related to domestic violence counseling, we need not consider the adequacy
of all services provided.
7 The DCS case manager also testified that in 2016, DCS attempted to
refer Mother to Applied Behavioral Interventions, and later to Arizona
Center for Change, for additional counseling but Mother did not engage,
presumably because she was already obtaining counseling services through
La Frontera.
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AMBER M. v. DCS, et al.
Decision of the Court
III. Termination Pursuant to A.R.S. § 8-533(B)(8)(c)
¶17 Mother also argues the juvenile court erred in finding DCS
presented sufficient evidence to support severance under A.R.S. § 8-
533(B)(8)(c), the fifteen-month time-in-care ground.
¶18 Under A.R.S. § 8-533(B)(8)(c), the juvenile court may
terminate parental rights if DCS “has made a diligent effort to provide
appropriate reunification services” and:
[t]he child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order[,] . . . the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home
placement and 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.
¶19 Mother does not challenge the juvenile court’s finding that the
children have lived in an out-of-home placement for at least fifteen months,
nor does she challenge that she has been unable to remedy the
circumstances that cause the children to be in an out-of-home placement.8
Mother’s contention is with the juvenile court’s finding that there is a
substantial likelihood that she will not be capable of exercising proper and
effective parental care and control in the near future. Mother asserts she
has made significant progress regarding her parenting ability throughout
the proceedings and that she has the ability to meet her children’s needs.
Mother also argues that, because the children were ready to transition home
to live with both parents in April 2018, one subsequent single lapse in
judgment—allowing Father into her home on August 10—does not justify
termination of her parental rights.
¶20 However, we find reasonable evidence supports the juvenile
court’s finding that a substantial likelihood exists that Mother will remain
unable to exercise proper and effective parental care and control in the
foreseeable future. At trial, Dr. Silberman, a clinical psychologist, testified
that, as of 2015, his initial prognosis for Mother’s ability to demonstrate
adequate parenting skills in the foreseeable future was “poor to cautious,”
8 Because Mother does not challenge these findings, she concedes that
the findings are accurate. See Britz v. Kinsvater, 87 Ariz. 385, 388 (1960).
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Decision of the Court
based largely on Mother’s inability to sever her relationship with Father,
who was abusive and had anger issues. In 2018, Dr. Silberman conducted
another evaluation of Mother and concluded that the likelihood Mother
could adequately parent was “poor” based on “the continued domestic
violence in the relationship and her emotional difficulties.”9 Ultimately, Dr.
Silberman asserted there did not seem to be any improved prognosis for
Mother from 2015 to 2018, aside from Mother’s decreased substance abuse.
¶21 The juvenile court acknowledged that Mother made great
efforts in seeking to reunify her family, stating that the “progress [Mother]
made over the course of this case has been deeply impressive,” and
recognizing that Mother has “worked extremely hard for her daughters.”
Nevertheless, the juvenile court was in the best position to evaluate the
credibility of the witness testimony on this issue, and to conclude it is not
in the children’s best interests that the window of opportunity for
remediation remain open indefinitely. See Maricopa Cty. Juv. Action No. JS-
501568, 177 Ariz. 571, 577 (1994).
¶22 Specifically, over the course of years, Mother has been
unwilling, or unable, to separate from Father for the benefit of her
children.10 As the juvenile court noted, Mother’s decision to allow Father
back into the home, as well as her complicity in lying to the DCS case
manager who came to her home, represented a “critical failure [in]
judgment late in the case,” which further supports the court’s finding of a
substantial likelihood that Mother will not be capable of exercising proper
and effective care of her children in the near future.
IV. Best Interests of the Children
¶23 Mother does not concede the juvenile court’s finding that
severance was in the children’s best interests. Nevertheless, on this record
we find reasonable evidence supports such finding. See Maricopa Cty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990) (The “best interests of the child
are a necessary, but not exclusively sufficient, condition for an order of
9 Dr. Silberman also opined that while he did not think Mother would
intentionally harm her children, he believed there was risk of harm to the
children if Mother continued her relationship with Father.
10 The juvenile court expressly found not credible Mother’s assurance
that Father was not living with her when he was found in her home on
August 10, 2018. As previously noted, we do not reassess a witness’
credibility. See Oscar O., 209 Ariz. at 334, ¶ 4.
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Decision of the Court
termination.”). The best interests requirement may be met if DCS can show
that the children are “adoptable,” meaning adoption is not only possible,
but likely. See JS-501904, 180 Ariz. at 352; Titus S. v. Dep’t of Child Safety, 244
Ariz. 365, 370, ¶ 22 (App. 2018). The court may also consider whether the
children’s current placement is meeting their needs. See generally Maricopa
Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 107 (1994).
¶24 Here, the juvenile court found that the children are residing
in a “loving, safe and stable adoptive placement that is attending to their
needs” and allowing them the “opportunity to remain with their siblings.”
See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 378, ¶ 6 (App. 1998)
(recognizing maintaining sibling relationships as a factor supporting a best-
interests finding). Also, termination of Mother’s rights would further the
case plan of adoption and would provide the children with much-needed
permanency after being in out-of-home care for nearly three years. See
Oscar O., 209 Ariz. at 334, ¶ 6. Accordingly, we find that reasonable
evidence supports the court’s finding that terminating Mother’s parental
rights was in the children’s best interests.
CONCLUSION
¶25 For the foregoing reasons, the juvenile court’s order
terminating Mother’s parental rights to the children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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