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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           BARBARA A., Appellant,

                                        v.

           DEPARTMENT OF CHILD SAFETY, J.W., Appellees.

                             No. 1 CA-JV 15-0313
                               FILED 3-1-2016


           Appeal from the Superior Court in Maricopa County
                             No. JD23541
                The Honorable Lisa Daniel Flores, Judge

                                  AFFIRMED


                                   COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
                         BARBARA A. v. DCS, J.W.
                           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            Barbara A. (Mother) appeals the juvenile court’s order
terminating her parental rights to J.W. (Child) arguing the Department of
Child Safety (DCS) failed to prove the statutory grounds for severance by
clear and convincing evidence. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In March 2013, DCS received a report that Mother regularly
hit Child’s older siblings, ages sixteen, fourteen, and nine, with a coat
hanger as a form of discipline. Subsequent investigation also revealed
Child, then age seven, had severe developmental delays, did not speak, and
was not toilet-trained. He often arrived at school in a dirty diaper “reeking
of body odor, dirt, and urine,” requiring the school to give him “informal
baby wipe baths” and wash his clothing. Although Child had an individual
education plan (IEP) in place at his school and had previously received
services from the Department of Developmental Disabilities, Mother did
not attend IEP meetings and did not follow through with seeking services
to diagnose or address his special needs. In the home, Mother relied upon
the older children to care for Child, which included changing his diaper and
using physical discipline, while she worked long hours. Additionally,
Mother admitted a history of marijuana, alcohol, and pain medication
abuse.

¶3             All four children were removed from Mother’s care, and DCS
filed a petition alleging they were dependent as to Mother on the grounds
of abuse, neglect, and substance abuse. Mother admitted she needed help
with parenting and substance abuse and was immediately offered


1      We view the facts in the light most favorable to upholding the
juvenile court’s order. 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)).



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                         BARBARA A. v. DCS, J.W.
                           Decision of the Court

substance abuse testing and treatment, supervised visitation, individual
counseling to address anger management and domestic violence, and a
psychological consultation. From the time Child was removed in April
2013 through August 2013, Mother participated in only four of eight
required drug tests, which were negative for any illegal substances, and, as
a result, no substance abuse treatment was recommended.

¶4           In July 2013, Mother completed a psychological evaluation.
Dr. Novi reported Mother had difficulty comprehending the basic needs of
her children and the special needs of Child, and she did not understand
why it was inappropriate to “turn[] over the raising of her younger children
to her teenage daughter.” He stated Mother’s Multiphasic Personality
Inventory indicated “a personality type that employs denial as a preferred
defense mechanism;” therefore, he concluded the alleged inappropriate
behaviors likely happened more often than she would admit. Dr. Novi
noted counseling and parenting classes would “help,” but that Mother
“ha[s] and will continue to have considerable difficulty in caring for a
disabled child’s needs.” Mother began individual counseling but denied
any history of substance abuse or neglect of the children. She stopped
attending after a few weeks and discontinued the service completely in
December 2013.

¶5             In September 2013, Mother submitted to the dependency, and
the juvenile court adjudicated Child dependent as to Mother and adopted
a case plan of family reunification. Between September 2013 and May 2014,
Mother participated in only five of forty-two required urinalysis tests. She
tested positive for some combination of marijuana, cocaine, amphetamines,
and alcohol each time.

¶6             In December 2013, Mother underwent a second psychological
evaluation. After interviewing Mother, Dr. Silberman determined Mother
suffered from substance abuse and likely suffered from posttraumatic
stress related to childhood abuse and a personality disorder with antisocial,
narcissistic, and paranoid traits. Dr. Silberman also reported Mother did
not have the ability “emotionally” to meet the needs of a special needs child,
and, so long as she continued to deny substance abuse and parenting
deficiencies and refuse to participate in drug testing and counseling, her
prognosis to become a minimally adequate parent was poor. Mother was
again referred for a substance abuse assessment that same month but did
not complete the intake appointment until April 2014. Mother was
recommended to participate in the standard outpatient program, but she
did not attend. Both the substance abuse testing and treatment services
were closed for lack of participation.


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                         BARBARA A. v. DCS, J.W.
                           Decision of the Court

¶7             Also in December 2013, Mother was referred for parent aide
services. After cancelling one appointment and failing to present for a
second, the intake was completed. Mother’s goals included learning age-
appropriate parenting skills and discipline as well as understanding the
harmful effects of domestic violence, substance abuse, and unresolved
mental health issues on members of her household. However, the service
was closed for lack of participation in July 2014 after Mother missed twenty
out of thirty-one visits with Child, ten out of nineteen one-on-one sessions
with the parent aide, and did not achieve any of her behavioral goals.
Mother was again referred for individual counseling in April 2014 and
began attending sporadically.

¶8            In May 2014, the case plan for Child was changed to severance
and adoption. DCS filed a motion to terminate the parent-child
relationship, alleging severance was warranted because Mother: (1)
substantially 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 (2) Mother was unable to discharge her parental
responsibilities because of a history of chronic abuse of dangerous drugs,
controlled substances, or alcohol. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3),2
(8)(a). That summer, DCS submitted another referral for substance abuse
testing and a third referral for substance abuse treatment. Mother
participated in two of five required tests in June 2014; both times she tested
positive for marijuana. She did not participate in another required test until
September 2014 and again tested positive for marijuana. She missed three
required tests in October 2014, and the service was closed, again, for lack of
participation. Meanwhile, Mother was assessed with cannabis abuse after
she admitted to physically abusing her children while under the influence
of marijuana and was again recommended to participate in standard
outpatient substance abuse treatment. Although Child had been out of
Mother’s care for twenty months, the treatment provider noted Mother was
resistant to treatment, failed to follow through with appointments, and
lacked the motivation to make the required behavioral changes.

¶9            In November 2014, visitation-only parent aide services were
initiated. The parent aide reported Mother behaved appropriately at the
visits and displayed a bond with Child. Mother also enrolled herself in a
different substance abuse treatment program but at intake only disclosed
prior alcohol use, did not admit to any use of illegal drugs, and denied that
her use of substances affected her children. Her attendance was

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

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                        BARBARA A. v. DCS, J.W.
                          Decision of the Court

inconsistent, and she had yet to complete this program by the time of trial.
In December 2014, Mother missed six of eight required tests. Of the two
tests she completed, Mother tested positive for cocaine once and marijuana
both times.

¶10           In December 2014, Mother had yet to reach the treatment
goals of her counseling despite receiving two extensions of the service, and
her substance abuse treatment services were suspended as a result of an
“altercation.” DCS amended its petition to include, as grounds for
severance, that Mother had been unable to remedy the circumstances that
caused Child to be in an out-of-home placement for a period of fifteen
months or longer, and there was a substantial likelihood she would be
unable to exercise proper and effective parental care and control in the near
future. See A.R.S. § 8-533(B)(8)(c).

¶11           At trial, Mother maintained the dependency was initiated
only because her teenage daughter filed a false report of abuse after they
had an argument. She denied paying her daughter to watch Child while
she worked until 11:00 p.m., admitted “there’s no way [her daughter] could
have cared for her brother,” and denied she or her other children had
neglected or abused Child in any manner.

¶12           Mother also testified she was self-employed as a music
producer and also “d[id] hair on the side.” She stated she used marijuana
for medicinal purposes and obtained a medical marijuana card in April
2014. She admitted using methamphetamine and alcohol after Child was
removed but denied voluntarily using cocaine, surmising the substance
must have been laced in the “street marijuana,” which she purchased
illegally. Mother denied she had a substance abuse problem, but admitted
she missed two substance abuse tests because she did not have
transportation and missed many others because she forgot or was busy at
work. Mother’s neighbor and adult goddaughter testified they observed
her to be an appropriate parent.

¶13            The DCS caseworker testified regarding Mother’s
participation in services, noting the only services Mother had completed in
more than two years were a psychological evaluation and a hair follicle test
immediately after the children were removed. She expressed concern with
Mother’s ability to parent a special needs child and follow up on Child’s
appointments and services, given her inability to complete her own
recommended services and failure to acknowledge and address her
substance abuse. Indeed, Mother had to be referred for substance abuse
testing nine times because the service was repeatedly closed out for lack of


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                         BARBARA A. v. DCS, J.W.
                           Decision of the Court

participation, and by the time of trial, she had yet to complete a substance
abuse treatment program.

¶14           Evidence was presented that Child was in a safe, stable, and
loving home that was meeting his medical, developmental, and educational
needs. As a result, Child had progressed significantly since he was
removed from Mother’s care. The DCS caseworker testified severance was
in Child’s best interests because Mother had not made behavioral changes
necessary to demonstrate her ability to parent. Additionally, Child was
adoptable and his placement was willing to adopt Child and ensure Child
remained in contact with his siblings.

¶15            After taking the matter under advisement, the juvenile court
entered an order finding DCS had proven by clear and convincing evidence
that termination of Mother’s parental rights was warranted given her
failure to remedy the circumstances causing Child to be placed in out-of-
home care pursuant to A.R.S. § 8-533(B)(8)(c) and declining to rule on the
other grounds alleged. The court also found that severance was in Child’s
best interests and entered an order terminating Mother’s parental rights.3
Mother timely appealed.

                               DISCUSSION

¶16            As relevant here, in order to terminate a person’s parental
rights, DCS must prove by clear and convincing evidence that it made
diligent efforts to provide reunification services, and:

       The child has been in an out-of-home placement for a
       cumulative total period of fifteen months or longer . . . 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.

A.R.S. § 8-533(B)(8)(c); see also Ariz. R.P. Juv. Ct. 66(C).4 Mother does not
dispute Child’s length of time in care or the diligence of DCS’s efforts to

3      Child’s father’s parental rights were also severed, but he does not
contest this order and is not a party to this appeal.

4      The juvenile court must also find by a preponderance of the evidence
that severance is in the child’s best interests, A.R.S. § 8-533(B); Kent K. v.



                                      6
                          BARBARA A. v. DCS, J.W.
                            Decision of the Court

provide services, but argues DCS failed to prove by clear and convincing
evidence either that she is currently unable to parent or is incapable of
parenting in the near future. In advancing this argument, Mother relies
upon her self-reported sobriety, recent increased participation in services,
and explanations for her past behavior to demonstrate she is presently able
to parent Child.

¶17           However, the juvenile court specifically found Mother was
unable to meet the needs of a child with serious special needs and was
unlikely to be able to do so in the future because she never addressed her
substance abuse problem and had yet to gain any understanding of how to
parent a special needs child. These findings are supported by the record,
which reflects Mother was offered numerous referrals for services over the
course of nearly two years that were specifically designed to address the
impediments to reunification — Mother’s substance abuse and inability to
parent a child with special needs. Despite DCS’s diligent efforts, Mother
did not test consistently, was not truthful with treatment providers
regarding her substance use, and never completed any substance abuse
treatment program. She tested positive for cocaine and marijuana in the
month immediately preceding the beginning of trial. Although she
eventually obtained an authorization to use marijuana for medical
purposes, she did not complete individual counseling and did not
demonstrate she was able to successfully parent Child while using
marijuana. Regarding the concerns with her parenting, Mother’s failure to
participate in parent aide services prevented her from learning to care for
and appropriately discipline a developmentally delayed child. And,
Mother’s apparent inability to keep her own appointments and complete
the services necessary to demonstrate appropriate parenting skills reflects
poorly on her ability to obtain and follow through with needed services for
Child.

¶18            We do not reweigh the evidence on appeal; as the trier of fact,
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 factual 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

Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005), but Mother does not argue
insufficient evidence supports this finding.

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                         BARBARA A. v. DCS, J.W.
                           Decision of the Court

Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204 (1974)). Here, reasonable
evidence supports the court’s determination that Mother was presently
unable to parent Child and would not be capable of parenting Child
appropriately in the near future.

                              CONCLUSION

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




                                   :ama




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