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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           SUZANNE S., Appellant,

                                        v.

           DEPARTMENT OF CHILD SAFETY, F.S., Appellees.

                             No. 1 CA-JV 15-0317
                               FILED 3-29-2016


            Appeal from the Superior Court in Navajo County
                        No. S0900JD201400030
               The Honorable Michala M. Ruechel, Judge

                                  AFFIRMED


                                   COUNSEL

John A. Banker, Taylor
By John A. Banker
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee DCS
                         SUZANNE S. v. DCS, F.S.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1            Suzanne S. (Mother) appeals the juvenile court’s order
terminating her parental rights to F.S. (Child), arguing the Department of
Child Safety (DCS) failed to prove by a preponderance of the evidence that
severance was in Child’s best interests. For the following reasons, we
affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           In 2005, Child and her older brother (Brother) were removed
from their parents’ care following concerns regarding Mother’s substance
abuse and domestic violence. That dependency resulted in a permanent
guardianship for both children with a maternal aunt and uncle in 2007. The
guardianship was revoked in 2011, and the children returned to Mother’s
care.2

¶3           In February 2014, Child and Brother were again removed
from Mother’s care and placed with their maternal grandmother
(Grandmother) after a domestic violence incident involving Mother and her
boyfriend. Both children reported prior exposure to domestic violence,
which Mother denied. Mother also tested positive for amphetamine in a
quantity twice the minimum detection level and methamphetamine at
nearly twenty times the minimum detection level.3 Although Mother


1      We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).

2     The children’s biological father died in 2007.

3      The laboratory analyzing Mother’s hair sample applied a “cut off”
level of 500 picograms per milligram of hair. The test results indicated the



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                        SUZANNE S. v. DCS, F.S.
                          Decision of the Court

admitted she had been diagnosed with schizophrenia multiple times, she
denied any mental health issues or the need for mental health services. She
also refused to give Child prescribed medications for attention deficit
disorder and depression.

¶4            Based upon these circumstances, DCS initiated a second
dependency for Child, then nine years old, and Brother. Mother contested
the dependency but submitted the issue to the juvenile court on the record.
The court adjudicated the children dependent as to Mother in November
2014 on grounds of neglect, domestic violence, and substance abuse. The
court adopted a case plan of guardianship for Brother, and family
reunification concurrent with guardianship for Child.

¶5             DCS offered Mother a myriad of services, including domestic
violence counseling, individual counseling, parent aide services, substance
abuse treatment, transportation, urinalysis testing, and child and family
team meetings. Mother did not engage in any of these services, which were
intended to address her substance abuse, domestic violence, and mental
health issues. After Grandmother was unable to manage Mother’s erratic
behaviors during visits with the children, DCS required a third-party
supervisor for visitation. Mother thereafter attended only one of seventeen
scheduled visits with Child in November and December 2014, and the
service was ultimately closed in February 2015. Mother was advised she
needed to contact the DCS case manager to reinstate visitation, but she
failed to do so. Mother testified she participated in one or two supervised
visits with Child between November 2014 and August 2015. She tested
positive for methamphetamine in March 2015, more than a year after Child
was removed from her care and admitted she lived in an unsafe home
surrounded by drug dealers. Mother also threatened to kill herself and
jumped from a moving vehicle in October 2014, was arrested for shoplifting
a bottle of liquor in December 2014, and was incarcerated for two weeks in
February 2015 following a DUI conviction.

¶6           In April 2015, the juvenile court appointed Grandmother as
Brother’s permanent guardian and granted DCS’s motion to change the
case plan for Child to severance and adoption. DCS thereafter filed a
motion to terminate the parent-child relationship, alleging severance was
warranted because: (1) Mother abandoned Child; (2) Mother substantially


presence of amphetamine at 1,132 picograms per milligram and
methamphetamine at 9,579 picograms per milligram.




                                    3
                        SUZANNE S. v. DCS, F.S.
                          Decision of the Court

neglected or willfully refused to remedy the circumstances that caused
Child to be in an out-of-home placement for a period of nine months or
longer; and (3) Mother was unable to discharge her parental responsibilities
because of a history of chronic abuse of dangerous drugs. See Ariz. Rev.
Stat. (A.R.S.) § 8-533(B)(1),4 (3), (8)(a).

¶7            At trial in August 2015, the DCS caseworker expressed
concern regarding Mother’s ongoing methamphetamine use, failure to
obtain safe and stable housing, and inability to recognize Child’s need for
services to address her special behavioral and emotional needs. Mother
testified she was unable to participate in services as a result of
“communication problems” with the DCS caseworker, service providers,
and Grandmother. She denied cancelling visits with Child, denied
receiving correspondence related to the case, denied that DCS offered any
assistance in obtaining services, denied having received the results from
any drug test, and disputed the authenticity of her signature on various
documents detailing her lack of compliance. The juvenile court did not find
Mother’s testimony credible.

¶8            Regarding Child’s best interests, DCS offered evidence that
Grandmother was willing and able to meet Child’s needs and provide a
permanent adoptive placement. Grandmother was successful in helping
Child manage her depression, self-harming behaviors, and attention deficit
disorder. Under Grandmother’s care, Child was successful in transitioning
from a special education classroom to mainstream classes part-time and
was on the honor roll. Moreover, Child reported she felt safe with and
respected Grandmother, stating, “My grandma gives me life, a roof over
my head, feeds me, loves me, and makes me feel safe.” A psychological
evaluation of Child was consistent with reported diagnoses of attention
deficit disorder and mood instability. The psychologist reported Child’s
mood variability could have resulted from exposure to abuse, neglect, and
disorganization found in Mother’s home and stressed Child’s need for a
stable home life.

¶9           At the trial, Mother’s counsel asked the juvenile court to
decline to sever Mother’s parental rights and appoint Grandmother as
Child’s permanent guardian instead. DCS opposed the request. The DCS
caseworker and Grandmother both testified Child has special behavioral
and emotional needs, requires a lot of patience, and does not handle change
well. Grandmother added that Child, now eleven years old, had expressed

4     Absent material changes from the relevant date, we cite a statute’s
current version.

                                     4
                         SUZANNE S. v. DCS, F.S.
                           Decision of the Court

a great deal of anxiety over the possibility that she would have to choose
between Mother and Grandmother. And, as counsel for DCS explained:

      [DCS] had already been involved in a guardianship
      previously and the children were returned to [Mother]’s care
      and . . . we are in the same circumstance that we were in
      previously because of the prior guardianship, and the
      circumstances have not been remedied that would make
      [Child] safe. She needs consistency, stability, she needs to
      know she has a home where she’s at and she can be all the
      time and know that she’s safe, and she can’t do that with
      [Mother].

      ...

      [Child] deserves consistency, and not having this ongoing up
      and down pattern where she doesn’t know what is going to
      happen with her in a short period, and there’s concern that if
      the guardianship were revoked again and changed back
      where the child went back to [Mother]’s care that we are going
      to end up in the same place again.

¶10           After taking the matter under advisement, the juvenile court
found DCS had proven by clear and convincing evidence that termination
of Mother’s parental rights was warranted because Mother had
substantially neglected or willfully refused to remedy the circumstances
causing Child to be placed in out-of-home care, see A.R.S. § 8-533(B)(8)(a),
and because Mother had a history of chronic abuse of dangerous drugs and
there were reasonable grounds to believe the condition would continue for
a prolonged indeterminate period, see A.R.S. § 8-533(B)(3).5 The court also
found severance was in Child’s best interests and entered an order
terminating Mother’s parental rights. Mother timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1)
and Arizona Rule of Procedure for the Juvenile Court 103(A).

                              DISCUSSION

¶11         To terminate parental rights, the juvenile court must find by
a preponderance of the evidence that severance is in the child’s best

5     The juvenile court found DCS had not proven severance was
warranted on the ground of abandonment. See A.R.S. § 8-533(B)(1).




                                     5
                          SUZANNE S. v. DCS, F.S.
                            Decision of the Court

interests. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210
Ariz. 279, 288, ¶ 41 (2005).6 Mother does not dispute Child would benefit
from severance, but argues the court erred in terminating her parental
rights when a permanent guardianship was “a less drastic and equally
beneficial alternative.”

¶12            Mother does not cite any authority to support her contention
that, after finding a statutory ground for severance, the juvenile court must
consider alternatives to severance, and we are aware of none. Indeed, the
juvenile court lacked the power to order a permanent guardianship because
Mother did not file a verified motion in compliance with A.R.S.       § 8-872
seeking appointment of a guardian. See Ariz. Dep’t of Econ. Sec. v. Stanford,
234 Ariz. 477, 479-80, ¶¶ 8-13 (App. 2014) (concluding the juvenile court
could not initiate a guardianship proceeding absent a motion filed pursuant
to A.R.S. § 8-872). Moreover, although permanent guardianship and
adoption may offer some of the same benefits, a permanent guardianship
is only appropriate where “[t]he likelihood that the child would be adopted
is remote or termination of parental rights is not in the child’s best
interests.” A.R.S. § 8-871 (emphasis added). Neither condition applies here.
Therefore, we treat mother’s request as a challenge to the sufficiency of the
evidence to support the best interests finding.

¶13           We review the propriety of a best interests finding for an
abuse of discretion. Orezza v. Ramirez, 19 Ariz. App. 405, 409 (1973) (citing
Dunbar v. Dunbar, 102 Ariz. 352, 354 (1967)). We do not reweigh the
evidence; the trier of fact — here, the juvenile court — “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4 (App. 2002)). Accordingly, we will affirm a
termination order unless there is no reasonable evidence to support the
court’s findings. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2
(App. 1998) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137 Ariz. 19, 21
(App. 1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202,
204 (1974)).




6      DCS must also prove at least one of the statutory grounds for
severance by clear and convincing evidence, A.R.S. § 8-533(B); Ariz. R.P.
Juv. Ct. 66(C); Kent K., 210 Ariz. at 288, ¶ 41, but Mother does not argue
insufficient evidence supports this finding.



                                        6
                          SUZANNE S. v. DCS, F.S.
                            Decision of the Court

¶14           Where severance is sought based upon the child’s length of
time in an out-of-home placement, see A.R.S. § 8-533(B)(8), the opportunity
for permanency is a benefit to the child where “‘parents maintain parental
rights but refuse to assume parental responsibilities,’” Oscar O., 209 Ariz. at
337, ¶ 16 (quoting Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 243
(App. 1988), and citing James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356,
¶ 18 (App. 1998)). In evaluating the child’s opportunity for permanency,
the court considers whether there is a current plan for the child’s adoption
and whether the current placement is meeting the child’s needs. See
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013)
(citations omitted).

¶15           Here, the juvenile court made a specific finding that severance
was in Child’s best interests because “there is a relative who is willing to
adopt her and that would provide her the stability and continuity of care
that [M]other has not been able or willing to provide and would allow
[Child] to continue to make progress in dealing with her depression and
ADHD.” This finding, summarizing the benefits of severance, is supported
by the record, which reflects Grandmother was willing and able to adopt
Child and had been actively engaged in management and support of
Child’s special needs and that Child was particularly sensitive to the
disruption caused by Mother’s erratic behavior.

¶16             Moreover, although a best interests finding does not require
proof that the child would suffer a detriment if severance is not granted, see
Oscar O., 209 Ariz. at 334, ¶ 6 (explaining termination is in a child’s best
interests if the child “would derive an affirmative benefit from termination
or incur a detriment by continuing in the relationship” — not both)
(emphasis added) (citations omitted), reasonable evidence also supports a
finding that maintaining the parental bond would be detrimental to Child.
Mother does not contest that she is unable or unwilling to parent Child as
a result of her chronic substance abuse and failure to address her domestic
violence and mental health issues. See A.R.S. § 8-533(B)(3), (8)(a); Britz v.
Kinsvater, 87 Ariz. 385, 388 (1960). Additionally, Child has already
experienced a failed attempt at permanency through the previous
guardianship and expressed anxiety at being left to choose between Mother
and Grandmother. Creating a guardianship would harm Child by keeping
open the possibility that Mother might regain care and custody of Child,
lending credence to Child’s fears that Mother would do so.

¶17          Reasonable evidence supports the juvenile court’s finding
that severance was in Child’s best interests, and we find no abuse of
discretion.


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                      SUZANNE S. v. DCS, F.S.
                        Decision of the Court

                           CONCLUSION

¶18           The juvenile court’s order terminating Mother’s parental
rights to Child is affirmed.




                               :ama




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