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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             JANICE H., Appellant,

                                         v.

  DEPARTMENT OF CHILD SAFETY, SAN CARLOS APACHE TRIBE,
                  V.S., J.S., J.H., Appellees.

                              No. 1 CA-JV 17-0343
                                FILED 2-15-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD20470
                   The Honorable Connie Contes, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
                         JANICE H. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James P. Beene joined.


T H O M P S O N, Judge:

¶1           Janice H. (Mother) appeals the juvenile court’s order
terminating her parental rights to her children V.S., J.S., and J.H. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The Department of Child Safety (DCS) first became involved
with Mother regarding the children in December 2015, when DCS took her
children into temporary physical custody after receiving a report indicating
Mother abused her prescription medications and that she failed to enroll
two of her four children in school that year.1 Later that month, DCS filed a
petition for dependency alleging neglect, memory loss, cognitive delay,
domestic violence, and substance abuse, possibly prescription medication.

¶3            Mother is a member of the San Carlos Apache Tribe (Tribe).
The Tribe filed a motion to intervene under the Indian Child Welfare Act
(ICWA) 25 United States Code (U.S.C.) §§ 1901-1963 (2012), which the
juvenile court granted, and, in due course, DCS provided notice to the
Tribe, as required.

¶4            In March 2016, Mother denied the allegations contained in the
petition but submitted the issue of dependency to the juvenile court for
determination. The court adjudicated the children dependent and ordered
a case plan of family reunification. DCS offered Mother reunification
services which included supervised visitation, random drug testing,
substance abuse assessment and treatment with Terros, parent aide
services, a psychological evaluation, and referral for individual counseling.

¶5           The juvenile court added a concurrent case plan of severance
and adoption or permanent guardianship for the children in December 2016

1 DCS took the children’s older brother, B.E., into custody at the same time,
but DCS dismissed him from the petition on his eighteenth birthday and he
is not a party to this appeal.


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                            JANICE H. v. DCS, et al.
                             Decision of the Court

due to Mother’s failure to engage in the services offered. DCS referred
Mother to Terros for substance abuse counseling three times, but each
referral was closed out unsuccessfully. Thereafter, DCS advised Mother to
self-refer to Native American Connections (NAC), and she underwent an
assessment in January 2017. Mother admitted to using drugs, including
methamphetamine, oxycodone, and morphine. The NAC caseworker
diagnosed Mother with an opioid dependence and opined that she was
likely substituting prescription drugs for methamphetamine use.

¶6            Due to Mother’s lack of progress, DCS filed a motion for
termination of her parental rights under Arizona Revised Statutes (A.R.S.)
sections 8–533(B)(3) (2014) (chronic substance abuse) and –533(B)(8)(c)
(fifteen months’ time in care). Following a two-day contested hearing held
on May 23 and June 14, 2017, the juvenile court terminated Mother’s
parental rights. Mother timely appealed. We have jurisdiction pursuant to
A.R.S. § 8–235(A) (2014) and Arizona Rule of Procedure for the Juvenile
Court 103(A).

                                 DISCUSSION

¶7              To support an order for termination of parental rights, the
juvenile court must find that one or more of the statutory grounds for
termination were proven by clear and convincing evidence. A.R.S. § 8–
537(B) (2014); see also Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249,
¶ 12 (2000). In addition, the court must find by a preponderance of the
evidence that termination is in the best interests of the child. Mario G. v.
Ariz. Dep’t. of Econ. Sec., 227 Ariz. 282, 285, ¶ 11 (App. 2011) (citing Michael
J., 196 Ariz. at 249, ¶ 12); see also A.R.S. § 8–533(B).

¶8              As the trier of fact, the juvenile court “is in the best position
to weigh the evidence, observe the parties, judge the credibility of the
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004). Accordingly, we accept the court’s
findings of fact “unless no reasonable evidence supports those findings.”
Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555 (App. 1997). We view
the evidence in the light most favorable to sustaining the juvenile court’s
ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82, ¶ 13 (App.
2005).

¶9            Mother argues the court erred when it denied her more time
to remedy her substance abuse issues and the circumstances that caused her
children to be in out-of-home placement. She further claims DCS did not




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                           JANICE H. v. DCS, et al.
                            Decision of the Court

prove by clear and convincing evidence she was unable to remedy those
circumstances.

A. Statutory grounds for severance

¶10           Under § 8–533(B)(3), the juvenile court may terminate
parental rights to a child if “the parent is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of dangerous drugs,
controlled substances or alcohol and there are reasonable grounds to
believe that the condition will continue for a prolonged indeterminate
period.” Chronic substance abuse persists over a long period, but is not
necessarily constant. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
377, ¶ 16 (App. 2010). Generally, a parent’s “temporary abstinence from
drugs and alcohol does not outweigh a significant history of abuse or
consistent inability to abstain during [the] case.” Id. at 379, ¶ 29. The
children’s interests in permanency must prevail over a parent’s uncertain
battle with drugs. Id.

¶11             “As the trier of fact, the juvenile court could properly consider
the evidence of Mother’s prior substance abuse in evaluating whether
reasonable grounds existed to conclude her inability to discharge parental
responsibilities would continue for a prolonged and indeterminate period.”
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 20 (App. 2016). That
evidence may include “the length and frequency of Mother’s substance
abuse, the types of substances abused, . . . prior efforts to maintain sobriety,
and prior relapses.” Id.

¶12           Mother has a long history of substance abuse which include
methamphetamine, oxycodone, and other prescription medications. At the
outset of the case, Mother submitted to a hair-follicle test which was
positive for methamphetamine and morphine and days later, her urinalysis
sample tested positive for oxycodone and morphine. Throughout the
pendency of the case, Mother did not regularly comply with random drug
testing and frequently tested positive for opiates and sometimes
barbiturates.

¶13           At the severance hearing, Mother acknowledged her history
of substance abuse and attributed her use of oxycodone to an orbital
fracture she sustained approximately seven years ago, pain resulting from
back surgery in April 2016, and a Methicillin-resistant Staphylococcus
aureus (MRSA) infection in May 2017. Although Mother denied abusing
prescription medication, the NAC intake assessor noted her admission to
feeling “preoccupied with buying and using meth” and “regular use and



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

abuse” of morphine and to “using more oxycodone than she means to use,
about five a day.”

¶14           Mother failed to complete substance abuse treatment despite
three referrals to Terros. She eventually attended a substance abuse
program through NAC where she received intensive outpatient therapy
from January to April 2017, but she missed many sessions. After four
months of sporadic engagement, Mother made no progress and was still in
the contemplation stage of change.

¶15           Mother was still using oxycodone and testified that she filled
three prescriptions for oxycodone at three different pharmacies in April
2017. She further admitted that between December 2016 and April 2017,
she received seven prescriptions for oxycodone from seven different
physicians. Mother denied knowledge of DCS’s requirement that she stop
using prescription medications, but the record contradicts this claim.
Mother disclosed to NAC that she was “told by DCS to stop using them so
that she can get her children back.” Further, Mother’s claim that she wished
she had known of DCS’s expectation because she “would have done it”
appears disingenuous because in the days between the two hearings,
Mother tested positive for opiates three times. Despite her scheduled
graduation from the NAC outpatient program in late June 2017, the case
manager recommended Mother undergo in-patient residential treatment
and detoxification.

¶16            Although Mother did stop using methamphetamines, she
made no effort to gain control over her oxycodone abuse. Mother’s
justification of her opiate usage as medically necessary to deal with pain
does not outweigh her significant history of abuse or her inability to abstain
during this protracted dependency proceeding. See Raymond F., 224 Ariz. at
379, ¶ 29 (“[A parent]’s failure to remedy his drug abuse; despite knowing
the loss of his children was imminent, is evidence he has not overcome his
dependence on drugs.”). Mother’s reasoning did not persuade the juvenile
court which found that “Mother is still struggling with her addiction issues
despite ongoing treatment services at NAC.” Reasonable evidence
supports the juvenile court’s findings that Mother is unable to discharge
her parental responsibilities due to chronic substance abuse and her
condition will continue for a prolonged indeterminate period.

¶17           Because we conclude the record supports termination for
chronic substance abuse, we need not address the out-of-home placement
grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002) (explaining that if sufficient evidence supports any of the statutory


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

grounds on which the court ordered severance, it is unnecessary to address
arguments relating to the other grounds).

B. Active Efforts

¶18           Because Mother’s children are Indian, the proceedings are
subject to ICWA. In addition to the stated grounds for termination, ICWA
requires that any party seeking termination of the Indian parent’s parental
rights produce clear and convincing evidence of unsuccessful active efforts
at “remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family.” 25 U.S.C. § 1912(d) (2012); Yvonne L. v. Ariz.
Dep’ t of Econ. Sec., 227 Ariz. 415, 421, ¶ 26 (App. 2011) (“[T]he necessary
ICWA ‘active efforts’ finding must . . . be made under the clear and
convincing evidence standard.”). ICWA neither defines active efforts nor
specifies who must make active efforts, only that such efforts were
unsuccessfully made. See S.S. v. Stephanie H., 241 Ariz. 419, 425, ¶ 21 (App.
2017). Further, the party seeking termination must prove beyond a
reasonable doubt that “continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage
to the child.” 25 U.S.C. § 1912(f); Valerie M. v. Ariz. Dep’t of Econ. Sec., 219
Ariz. 331, 334–35, ¶¶ 11, 14 (2009).

¶19            DCS presented an ICWA expert who opined that DCS made
active efforts to prevent the breakup of the Indian family by providing
Mother with substance abuse treatment and she concluded that “placing
the children back with mom would put them at risk for emotional and
physical harm.” “[W]hether ‘active efforts’ were made and were
unsuccessful requires both factual findings by the court about the nature
and extent of the services provided and a legal conclusion about their
adequacy.” Yvonne L., 227 Ariz. at 422, ¶ 28. “[N]either ICWA nor Arizona
law mandates that [DCS] provide every imaginable service or program
designed to prevent the breakup of the Indian family before the court may
find that ‘active efforts’ took place.” Id. at 423, ¶ 34. “What constitutes
‘active efforts’ will vary, depending on the circumstances, the asserted
grounds for severance and available resources.” Stephanie H., 241 Ariz. at
425, ¶ 21. We will not reweigh the evidence, and “look only to determine
whether there was substantial evidence to sustain the court’s findings.”
Yvonne L., 227 Ariz. at 422, ¶ 27 (internal quotations omitted).

¶20         Here, the juvenile court considered the numerous services
offered by DCS and expressly found that DCS made “active efforts to
provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and these efforts have proven


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

unsuccessful” and made “reasonable efforts to provide Mother with
rehabilitative services”. The evidence shows that Mother’s lack of
participation in the offered services prevented her from gaining the skills
necessary to appropriately parent her children. Because substantial
evidence supports the active efforts and continued harm testimony
provided by the ICWA expert, the juvenile court did not err in its finding.

C. Best Interests

¶21           Severance is in a child’s best interests if he or she would
benefit from severance or be harmed by continuation of the parent-child
relationship. Maricopa Cty. Juv. Action No. JS–500274, 167 Ariz. 1, 5 (1990).
Relevant factors include whether the child’s existing placement is meeting
the child’s needs, whether the child is adoptable, and whether an adoptive
placement is immediately available. Raymond F. at 383, ¶ 30. The evidence
established that the children are adoptable and need stability.

¶22            The juvenile court, in its order, expressly found that “denial
of termination of parental rights at this time to give [M]other more time to
become sober is detrimental to best interests and needs for permanency for
the children.” At the hearing, the Tribe’s witness opined that DCS should
allow Mother more time to comply but also stated he was unsure if more
time would risk more damage and harm to the children. The ICWA expert
stated that continued custody with Mother would likely result in serious
physical and emotional harm to the children. A juvenile court has a “duty
to independently assess evidence” presented at a hearing. Leslie C. v.
Maricopa Cty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997). And when evidence is
conflicting, the court may make a finding provided there is substantial
evidence to support it. Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 77
(App. 1986). The DCS case manager testified the children are adoptable,
that V.S. and J.S. are in an adoptive home that is ICWA compliant, and there
is good cause to deviate from the placement preferences under ICWA for
J.H. because he is placed with B.E., his older sibling.

¶23           Finally, although the record is clear that Mother has a bond
with her children, the existence and effect of a bonded relationship between
a biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests. Bennigno R. v. Arizona Dep't of Econ.
Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013). Even in the face of such a bond,
the juvenile court is required to evaluate the totality of circumstances and
determine whether severance is in the best interests of the children. Id. at
351–52, ¶ 31. Here, the court did consider the totality of the circumstances
and reasonable evidence in the record supports the court's best interests


                                       7
                        JANICE H. v. DCS, et al.
                         Decision of the Court

finding. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98–99 (App.
2016).

                             CONCLUSION

¶24          For the foregoing reasons, we affirm.




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




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