                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                 MONIQUE H.,
                                  Appellant,

                                         v.

                     DEPARTMENT OF CHILD SAFETY,
                          D.H., D.F., R.F., C.F.,
                                Appellees.

                              No. 1 CA-JV 18-0382
                                FILED 3-5-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD33406
                    The Honorable Sara J. Agne, Judge

                                   AFFIRMED


                                    COUNSEL

Denise Lynn Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
                        MONIQUE H. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1           Monique H. ("Mother") appeals the superior court order
severing her parental rights to her four children, born in 2003, 2006, 2008
and 2010, respectively. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The Department of Child Safety ("DCS") took the children into
custody in November 2016 after it received a report that they had been
living with their maternal grandmother since February 2016 because
Mother was homeless and her whereabouts were unknown. Additionally,
DCS received information that Mother had a long history of substance
abuse, might be involved with selling drugs, had a history of domestic
violence with her significant other, had threatened to kill the children and
had been contacted by police "numerous times" due to her "aggressive and
erratic behavior."

¶3            Under a case plan of reunification, DCS offered Mother
substance-abuse testing and treatment, parent-aide services, counseling
and visitation. Mother had weekly supervised visits with the children and,
as of June 2017, was engaging in mental-health services through a self-
referral.

¶4            On September 5, 2017, Mother had an intake interview with a
parent aide, but thereafter failed to meet consistently with the aide. Mother
likewise completed a substance-abuse treatment intake, but was closed out
unsuccessfully in May 2018. She later completed 21 group sessions but
missed 19 sessions between March 21, 2018 and her severance hearing in
July 2018.

¶5            From the beginning of the dependency proceeding in
November 2016, Mother was supposed to engage in random substance-
abuse testing twice a week. She failed to participate in testing through the
first provider she was referred to, however, and that provider twice closed
her out unsuccessfully. Mother did not call in for substance-abuse testing


                                     2
                        MONIQUE H. v. DCS, et al.
                          Decision of the Court

until March 26, 2018. From then through July 2018, Mother called in only
13 times out of 107 days but gave a urine sample each time it was required
when she did call. Each of the five samples she submitted came back
positive for marijuana, but Mother has a medical marijuana card.

¶6             When DCS first became involved in this case in November
2016, the children were staying with their maternal grandmother in Arizona
and DCS initially permitted the children to remain with her. In November
2016, however, DCS took physical custody of the children and placed them
in foster care. In August 2017, the children were placed with their paternal
grandmother in Mississippi. Mother moved to Mississippi to be closer to
the children in November 2017, but she failed to participate in services
while there before she returned to Arizona at the end of December 2017.
Later, one of the children returned to Arizona for psychiatric care and was
placed with his maternal uncle.

¶7            On November 13, 2017, the superior court found the children
dependent as to Mother and changed the case plan to guardianship. Over
Mother's objection, on January 16, 2018, the superior court granted DCS's
request to change the case plan to severance and adoption. DCS then
moved to terminate Mother's parental rights. At the subsequent severance
hearing, the court heard testimony from Mother and a DCS child specialist.

¶8             Mother testified her partner had been physically abusive to
her for many years, including knocking out her teeth and breaking her nose.
She stated that in more recent years he had stopped physically abusing her
but that he remained mentally and emotionally controlling and abusive.
Mother acknowledged that the children had witnessed episodes of
domestic violence between her and her partner. Despite the abuse, she
testified that she has been with her partner "on and off" for 14 years. She
testified she left her partner twice before, only to return, and left him again
about four weeks before the severance hearing. The DCS specialist,
however, testified she believed Mother and her abusive partner might still
be together because, when the specialist called Mother's phone a week or
so before trial, Mother's partner answered the phone and told her they were
together. The specialist also testified that she referred Mother to
community resources for victims of domestic abuse, but Mother only
attended two support-group meetings. On the other hand, Mother testified
she completed eight weeks of domestic-violence classes.

¶9          The DCS specialist further testified that Mother failed to
provide proof that she was employed or evidence of her income. She also




                                      3
                         MONIQUE H. v. DCS, et al.
                           Decision of the Court

testified that Mother had not shown she had obtained appropriate housing
by providing DCS with her current address.

¶10            In addressing the children's placement, the specialist noted
that three of the children still lived with their paternal grandmother in
Mississippi, while one of the children lived with a maternal uncle in
Arizona. The specialist testified that the paternal grandmother was
providing a stable home and was meeting all the children's educational,
emotional and mental needs. She also testified the three children had
expressed a desire to remain with their grandmother and that the
grandmother was willing to adopt them. The specialist testified that the
child living in Arizona had stabilized his behavior with the aid of services.
She testified the child's uncle was providing a safe, stable, drug-free,
violence-free environment; was able to meet all the child's educational,
mental and emotional needs; and was willing to adopt the child.

¶11           The court granted DCS's motion, severing Mother's parental
rights under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a)
(2019) (nine months' time in care).1 Mother timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
A.R.S. §§ 8-235(A) (2019), 12-120.21(A)(1) (2019), -2101(A)(1) (2019) and
Arizona Rule of Procedure for the Juvenile Court 103(A).

                                DISCUSSION

¶12            The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the
court must find by a preponderance of the evidence that termination is in
the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
"Because the juvenile court is in the best position to weigh evidence and
assess witness credibility, we accept [that] court's findings of fact if
reasonable evidence and inferences support them, and will affirm a
severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F.,
239 Ariz. 1, 3, ¶ 9 (2016).

¶13         Under A.R.S. § 8-533(B)(8)(a), parental rights may be
terminated when


1      Absent material change since the relevant date, we cite the current
version of a statute.


                                       4
                         MONIQUE H. v. DCS, et al.
                           Decision of the Court

       [t]he child has been in an out-of-home placement for a
       cumulative total period of nine months or longer pursuant to
       court order . . . and the parent has substantially neglected or
       wilfully refused to remedy the circumstances that cause the
       child to be in an out-of-home placement.

The circumstances at issue under this statutory ground for severance are
those "existing at the time of the severance." Marina P. v. Ariz. Dep't of Econ.
Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).

¶14           On appeal, Mother does not contest the court's findings that
the children had been in out-of-home placement for more than nine months,
nor does she argue that DCS failed to comply with its obligation to offer her
appropriate reunification services. She does, however, argue that the
evidence does not support the court's finding that she substantially
neglected or willfully refused to remedy the circumstances that caused the
children to be taken into care.

¶15            In support of her contention, Mother points to evidence that
she participated in parenting and domestic-violence classes and that she
participated in telephonic visitations with her out-of-state children and
enjoyed unsupervised daily contact with her child who resides in Arizona.
She also cites evidence that she has ended her relationship with her abusive
partner, which, she argues, will allow her to "exercise proper and effective
parental care and control" of the children.

¶16            The record, however, contains substantial evidence in
support of the superior court's finding that Mother substantially neglected
or willfully refused to remedy the circumstances that caused her children
to remain in care of the State.

¶17            To begin with, the court acknowledged Mother's testimony
that she participated in eight weeks of parenting and domestic-violence
classes, but also noted that Mother stopped going to those classes when she
moved to Mississippi. Mother acknowledged during the hearing that she
had endured years of domestic abuse, some of it in the presence of the
children. She testified that she had tried to leave her abuser at least twice
before, but returned to him both times before she assertedly broke things
off again just before the severance hearing. And, as noted, the DCS
specialist testified Mother and her abusive partner may still be together,
given that the partner picked up Mother's telephone when the specialist
telephoned shortly before trial.




                                       5
                         MONIQUE H. v. DCS, et al.
                           Decision of the Court

¶18           Mother's substance abuse was another issue. At trial, Mother
acknowledged a history of abusing prescription drugs. Although she
testified her doctor had ceased giving her prescription painkillers a few
months before the termination hearing, her persistent failures to participate
in substance-abuse testing and treatment over the period of the proceedings
further supported the court's findings in support of termination.

¶19           Finally, although Mother cites her participation in parent-aide
services and visitation, the superior court found that the parent-aide and
visitation services Mother participated in "were not fruitful" because
Mother would often violate visitation guidelines.

¶20            In sum, based on the record, the superior court did not abuse
its discretion by finding that DCS had proved under § 8-533(B)(8)(a) that
Mother substantially neglected or willfully refused to remedy the
circumstances that caused her children to remain in care of the State.

¶21           Mother also argues that DCS failed to prove by a
preponderance of the evidence that severance was in the children's best
interests. Specifically, Mother points to evidence that she is bonded with
the children and contends that severance would create a greater detriment
to the children than allowing her additional time to participate in services.

¶22            The "termination is in the child's best interests if either: (1) the
child will benefit from severance; or (2) the child will be harmed if
severance is denied." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 13
(2018). One of the factors that may favor termination "is the immediate
availability of an adoptive placement." Audra T. v. Ariz. Dep't of Econ. Sec.,
194 Ariz. 376, 377 (App. 1998).

¶23          The superior court found that all the children are in familial
adoptive placements and want to be adopted by family. The evidence
recited above supports the superior court's findings that DCS proved by a
preponderance of the evidence that termination is in the children's best
interests.




                                        6
                      MONIQUE H. v. DCS, et al.
                        Decision of the Court

                             CONCLUSION

¶24          Because the record fully supports the superior court's
findings and conclusions, we affirm its order severing Mother's parental
rights.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




                                       7
