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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             BRENDA B., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, B.S., N.S., Appellees.

                              No. 1 CA-JV 16-0162
                               FILED 11-1-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD527935
                 The Honorable Timothy J. Ryan, Judge

                                   AFFIRMED


                                    COUNSEL

Gates Law Firm L.L.C., Buckeye
By S. Marie Gates
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
                         BRENDA B. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1           Brenda B. (Mother) appeals the juvenile court’s order
terminating her parental rights to B.S. and N.S. (the Children), 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 August 2014, after receiving a report stating N.S. tested
positive for methamphetamines at birth, DCS filed a petition alleging the
Children were dependent as to Mother on the grounds of substance abuse
and neglect.2 The juvenile court granted DCS temporary legal custody of
the Children but ordered they remain in the physical custody of Mother,
who then asked the Children’s adult half-sister to assume temporary
physical custody of the Children. DCS agreed with the Children’s
placement in kinship foster care, and, in September 2014, the court ordered
the change in physical custody.

¶3          After a contested hearing, the juvenile court adjudicated the
Children dependent and set a case plan of family reunification. The court




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 petition also alleged the Children were dependent as to their
father on the same grounds of substance abuse and neglect. He failed to
appear at the termination hearing, and his parental rights were terminated
in April 2016. He did not challenge that determination, and neither he, nor
the couple’s third child, see infra ¶ 6, are parties to this appeal.


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                         BRENDA B. v. DCS, et al.
                          Decision of the Court

ordered DCS to provide Mother services to treat her substance abuse,
including urinalysis testing, substance abuse treatment, and a parent-aide.

¶4            In May 2015, the DCS case manager reported Mother had not
been participating in substance abuse treatment and was “closed out due to
noncompliance.” Moreover, Mother had not fully complied with her
urinalysis testing and failed to maintain contact with her parent-aide. In
light of Mother’s “lack of engagement in treatment” and the length of time
the Children had been in out-of-home care, the case manager recommended
the case plan change to severance and adoption “in order to provide the
[C]hildren with permanency.” In June 2015, the juvenile court granted
DCS’s oral motion to change the case plan.

¶5             DCS then moved to terminate Mother’s parental rights on the
grounds that: (1) Mother was unable to discharge parental responsibilities
because of a history of chronic abuse of dangerous drugs that could
continue for a prolonged, indeterminate period; (2) the Children, both
under three years of age, had been in an out-of-home placement for six
months or longer, and Mother had refused to participate in reunification
services offered by DCS; and (3) Mother had substantially neglected or
willfully refused to remedy the circumstances causing the Children to be in
an out-of-home placement for a cumulative period of nine months or
longer. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (8)(a)-(b).3 The juvenile
court scheduled a contested termination hearing for April 2016.

¶6           In the meantime, DCS notified the juvenile court that the
Children’s half-sister had allowed Mother to have unsupervised contact
with the Children in violation of the terms of the kinship placement
agreement, and the Children were subsequently placed in a licensed foster
home. After initially failing to participate in substance abuse treatment,
Mother enrolled herself in a different treatment program in November
2015; Mother failed again to fully engage in the program and tested positive
for methamphetamine in December 2015. One month before her scheduled
termination hearing, Mother gave birth to a third child who, like N.S., was
born substance-exposed to methamphetamine.

¶7           At the termination hearing, the DCS case manager testified
Mother “has yet to fully address her substance abuse issues,” even though
her “case ha[d] been going on for almost two years.” The case manager
explained that although Mother’s parent-aide reported that “things were


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


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                           BRENDA B. v. DCS, et al.
                            Decision of the Court

going well [and] Mom appeared bonded to the [C]hildren,” Mother was not
consistent in attending visits or participating in drug testing or treatment
sessions because “she did not believe her substance abuse affected the
[C]hildren.” The case manager added that the Children’s “current
placement [wa]s willing to adopt them” and opined that “Mother is unable
to discharge her parental responsibilities due to a history of abusing
methamphetamine . . . [without] demonstrat[ing] an extended period of
sobriety.”

¶8            After taking the matter under advisement, the juvenile court
determined DCS had made reasonable efforts to reunify Mother with the
Children and had proved by clear and convincing evidence severance was
warranted based upon Mother’s history of chronic substance abuse and the
length of time the Children had been in an out-of-home placement. See
A.R.S. § 8-533(B)(3), (8)(a)-(b). The court also found that severance was in
the Children’s best interests by a preponderance of the evidence 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), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).

                                 DISCUSSION

¶9             The juvenile court may terminate an individual’s parental
rights if it finds, by clear and convincing evidence, that DCS “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 nine months or longer pursuant to court order . . . and the parent has
substantially neglected or willfully refused to remedy the circumstances
that cause the child to be in an out-of-home placement.” A.R.S. 8-
533(B)(8)(a); see also Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12 (2000). The court must also find by a
preponderance of the evidence that termination would serve the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 22 (2005). Mother does not dispute the length of time the Children
were in out-of-home care,4 the diligence of DCS’s efforts, or that severance

4      Although Mother argues the juvenile court’s finding that the
Children had been in out-of-home care since August 5, 2014, is erroneous,
she does not develop this argument. Moreover, the record reflects the
Children had been in out-of-home care since at least September 4, 2014, or
nineteen months before Mother’s termination hearing — and well over the
nine-month statutory minimum established by A.R.S. § 8-533(B)(8)(a).


                                         4
                          BRENDA B. v. DCS, et al.
                           Decision of the Court

was in the Children’s best interests. Instead, she argues the court’s finding
that she substantially neglected or willfully refused to remedy the
circumstances that caused the Children to be in an out-of-home placement
was clearly erroneous because, she contends, “inconsistently participating
doesn’t arise to the level of substantially or willfully neglecting
participation in services.”

¶10            Termination of parental rights under A.R.S. § 8-533(B)(8)(a)
“is not limited to those who have completely neglected or willfully refused
to remedy such circumstances” causing out-of-home placement. Maricopa
Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994). Parents who
make “appreciable, good faith efforts to comply with remedial programs”
will not be subject to termination under A.R.S. § 8-533(B)(8)(a). Id.
“However, when a party . . . makes only sporadic, aborted attempts to
remedy her addiction in that first year, a trial court is well within its
discretion in finding substantial neglect and terminating parental rights on
that basis.” Id.; see also Donald W., Sr. v. Ariz. Dep’t of Econ. Sec., 215 Ariz.
199, 205-06, ¶ 21 (App. 2007) (affirming termination of parental rights
where evidence indicated the father did not visit with the child, contact the
DCS caseworker, or cooperate with services in the ten months immediately
following the child’s removal).

¶11            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 court’s termination order “unless its factual
findings are clearly erroneous, that is, unless there is no reasonable
evidence to support them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz.
376, 377, ¶ 2 (App. 1998) (citing Maricopa Cty. Juv. Action No. JS-4374, 137
Ariz. 19, 21 (App. 1983), and Maricopa Cty. Juv. Action No. JS-378, 21 Ariz.
App. 202, 204 (1974)).

¶12          The record reflects DCS provided Mother with numerous
services, most notably random urinalysis testing, substance abuse
treatment, and parent-aide services, after N.S. was born substance-exposed
to methamphetamine in July 2014. Between September 2014, when the
Children were relocated to an out-of-home placement, and mid-November
2014, Mother missed six of sixteen drug tests and tested positive for
amphetamines five times. After her first referral for parent-aide services
expired around May 2015, her second and third referrals closed out
unsuccessfully because Mother did not attend consistently and was


                                        5
                         BRENDA B. v. DCS, et al.
                          Decision of the Court

unlikely to be able to apply the requisite parenting skills in an unsupervised
setting.

¶13           When DCS moved to terminate her parental rights in July
2015, Mother advised she was pregnant with a third child and also tested
positive for methamphetamine. She was closed out of substance abuse
treatment for noncompliance, and, after reenrolling in a different treatment
program in November 2015, she continued to miss group sessions and drug
tests.   Thereafter, in December 2015, Mother tested positive for
methamphetamine, again while pregnant. Finally, in March 2016, just one
month before the termination hearing and eighteen months after the
Children were first removed from her care, Mother’s third child was born
substance-exposed to methamphetamine.

¶14           Although the DCS case manager acknowledged Mother has
some parenting skills and, at times, received positive feedback from her
parent-aides, the bulk of the record demonstrates Mother made only
sporadic, aborted attempts to participate in the services needed to address
her substance abuse and reunify with the Children. Here, reasonable
evidence supports the juvenile court’s finding that Mother substantially
neglected to remedy the chronic use of methamphetamine that caused the
Children to be in an out-of-home placement since September 2014.5

                              CONCLUSION

¶15            The juvenile court’s order terminating Mother’s parental
rights to the Children is affirmed.




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

5      Because reasonable evidence supports the juvenile court’s
conclusion that severance was warranted based upon the length of time the
Children were in out-of-home care, we need not address Mother’s claims
pertaining to other statutory grounds. Jesus M., 203 Ariz. at 280, ¶ 3 (“If
clear and convincing evidence supports any one of the statutory grounds
on which the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.”) (citations omitted).


                                         6
