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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      CINDY A., SAMUEL S., Appellants,

                                         v.

                     DEPARTMENT OF CHILD SAFETY,
                       H.A., V.A., A.S., S.S, Appellees.

                              No. 1 CA-JV 17-0499
                                FILED 7-3-2018


            Appeal from the Superior Court in Mohave County
                         No. B8015JD201604021
                The Honorable Rick A. Williams, Judge

                       VACATED AND REMANDED


                                    COUNSEL

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant, Mother

Erika A. Arlington Esq. PC, Flagstaff
By Erika A. Arlington
Counsel for Appellant, Father

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee, Department of Child Safety
                    CINDY A., SAMUEL S. v. DCS et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1           Cindy A. (“Mother”) and Samuel S. (“Father”) appeal the
superior court’s order terminating their parental rights. For the following
reasons, we vacate the order and remand for further proceedings.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Mother is the biological parent of H.A., born in 2004, and
V.A., born in 2006.1 Both Mother and Father (collectively, “Parents”) are
the biological parents of A.S., born in 2008 and S.S., born in 2011.

¶3           In early 2016, the Department of Child Safety (“the
Department”) became involved with H.A., V.A., A.S., and S.S. (“the
children”) when it received reports of parental neglect. These reports
indicated the family was evicted from their home and lived in a storage
unit. The children were “filthy” and looked “as though they had not
bathed” for several days, had minimal food, and had not been attending
school. The children were removed from Parents’ care and placed in foster
care.

¶4             In March 2016, the Department filed a dependency petition
alleging the children were dependent as to Parents based on neglect.
Specifically, the Department alleged that Parents failed to provide proper
and effective parental care and control due to their substance abuse and by
neglecting to provide a safe and stable home environment or provide for
the children’s basic needs. In March 2016, the superior court granted the
Department’s petition and ordered that the Department make reasonable
efforts to achieve the case plan. Parents were offered reunification services,
including substance-abuse assessments, drug testing through TASC, parent
aide, supervised visitation, behavioral-health services, and individual and
family counseling.



1      Robert A., the biological father of H.A. and V.A., died in 2007.


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                    CINDY A., SAMUEL S. v. DCS et al.
                         Decision of the Court

¶5           For the most part, Parents failed to participate in services
during roughly the first half of the dependency proceeding. They did not
meaningfully participate in drug testing and visits with the children were
“sporadic at best.” Parents therefore made “minimal progress” with the
case plan.

¶6             In January 2017, given Parents’ lack of consistent engagement
in the reunification services, the superior court approved changing the case
plan to severance and adoption. In February, the Department filed a
motion to terminate Mother’s and Father’s parental rights to the children
based on neglect, inability to discharge parental responsibilities due to
substance abuse, and nine months’ out-of-home placement. See Arizona
Revised Statutes (“A.R.S.”) § 8-533(B)(2), (3), (8)(a).

¶7            Soon thereafter, Parents began completing some random
drug testing with mixed results. Mother participated in services offered by
Arizona Families First (“AFF”) and completed a psychological evaluation
in February 2017. Father completed a psychological evaluation and
participated in some services with AFF.

¶8            At the termination hearing conducted on August 24, 2017, the
Department presented the testimony of Felicia Carter, the case manager
who handled Parents’ case for approximately six months leading up to the
hearing. In general terms, she testified about Parents’ failure to successfully
participate in the reunification services offered or to make the necessary
behavioral changes that would have permitted the Department to consider
reunification as a viable option. Mother testified regarding the efforts she
made to comply with reunification services. Father did not testify. The
superior court granted the Department’s motion for termination on each of
the three grounds alleged and also found that termination was in the
children’s best interests. Parents timely appealed.

                               DISCUSSION

¶9             To terminate parental rights, the superior court must find, by
clear and convincing evidence, the existence of at least one of the statutory
grounds enumerated in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep’t. of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Because the superior court “is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” we will affirm an order
terminating parental rights if reasonable evidence supports it. Jordan C. v.
Ariz. Dep’t. of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quotation
omitted).



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                    CINDY A., SAMUEL S. v. DCS et al.
                         Decision of the Court

¶10           Parents challenge the sufficiency of the evidence supporting
each of the grounds for severance, asserting that the Department failed to
present evidence pertinent to their participation in services for several
months leading up to the termination hearing. The missing documentation
includes TASC records and Father’s psychological evaluation.2 Parents also
challenge the superior court’s finding that the Department made diligent
efforts to provide reunification services.

¶11            To prove the nine-month ground, the Department was
required to show that the children were in an out-of-home placement for at
least nine months pursuant to a court order and that Parents “substantially
neglected or wilfully refused to remedy the circumstances that cause the
child[ren] to be in an out-of-home placement.” A.R.S. § 8-533(B)(8)(a). The
“circumstances” referenced in this section means “those circumstances
existing at the time of the severance” that prevent the parents “from being
able to appropriately provide” for their children. Marina P. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (quotation omitted). Because
the nine-month ground is an “expedited” termination,

       the test focuses on the level of the parent’s effort to cure the
       circumstances rather than the parent’s success in actually
       doing so. If the moving party cannot establish that the parent
       ‘substantially neglected or willfully refused’ to cure the
       circumstances, even if it establishes that the circumstances
       were not cured at the time of severance, it cannot obtain
       severance until the child has been in an out-of-home
       placement for at least fifteen months.

Id. at 329, ¶¶ 20-21. Here, although the children had been in an out-of-home
placement for approximately 17 months at the time of the termination
hearing, nothing in the record suggests the Department sought to add



2      Only Mother specifically references the Department’s failure to
present evidence of the TASC results for the three-month period preceding
the termination hearing. Because the superior court was obligated to
consider the circumstances existing at the time of severance as to each
parent, we need not separately address their precise arguments regarding
the missing documentation. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 326, 330, ¶ 22 (App. 2007). Additionally, although neither parent
specifically raises the issue, our review of the record indicates that the
Department failed to present notes from Parents’ visits with the children
for the four-month period leading up to the hearing.


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                    CINDY A., SAMUEL S. v. DCS et al.
                         Decision of the Court

fifteen months’ out-of-home placement under A.R.S. § 8-533(B)(8)(c) as a
ground for termination.

¶12           To prove the substance abuse ground, the Department was
required to prove that (1) Parents were unable to discharge their parental
responsibilities because of a history of chronically abusing drugs, and (2)
there were reasonable grounds to believe Parents’ chronic abuse of drugs
would continue for a prolonged indeterminant period. A.R.S. § 8-533(B)(3).

¶13          To prove the neglect ground, the Department was required to
show that Parents were unable or unwilling to provide the children “with
supervision, food, clothing, shelter or medical care if that inability or
unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. §§ 8-533(B)(2), 8-201(25). In the motion for termination,
the Department alleged in part that Parents “have failed to mitigate any of
the Department’s concerns or demonstrate appropriate parenting skills.
The parents are believed to remain unable to appropriate[ly] parent the
children and provide a safe living environment.”

¶14            Additionally, and based on the unique circumstances of this
case, the Department was required to show that it made diligent efforts to
reunify the family to meet its burden of proving each of the three alleged
termination grounds.3 See A.R.S. § 8-533(B)(8) (requiring, for the nine-
month ground, “that the agency responsible for the care of the child has
made a diligent effort to provide appropriate reunification services”). The
Department must give parents “the time and opportunity to participate in
programs designed to help [them] become . . . effective parent[s].” Maricopa
Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). The
Department “is not required,” however, “to provide “every conceivable
service or to ensure that a parent participates in each service it offers.” Id.

¶15            The Department does not dispute that it failed to present
Parents’ TASC results for June, July, and August at the severance hearing.
Carter testified that “TASC testing is very important for the Department to
be able to reasonably say with evidence that there’s consistency of several
months that Mom or Dad tested clean.” Carter opined that based on the


3        With no citation to authority, the Department argues the “neglect
ground requires only a finding of past neglect, not current or future
inability to parent.” Even assuming the Department is correct, in this case,
the Department’s argument conflicts with the allegations of the motion for
termination. See supra ¶ 13.



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                    CINDY A., SAMUEL S. v. DCS et al.
                         Decision of the Court

TASC test results and Parents “psychological evaluations,” their substance
abuse problems would continue for a prolonged and indeterminate amount
of time. She also testified that to even consider reunification, the
Department is looking for “clean TASC tests, consistency in TASC testing,
[and] testing clean more than a month period of time.”

¶16            Carter’s testimony underscores the significance of the TASC
results and Father’s psychological evaluation.           She explained the
importance of the TASC results in evaluating Parents’ progress and
indicated that Parents needed to consistently show clean results for several
months, or at least one month, for the Department to even consider
reunification. Like Mother’s evaluation, Father’s psychological evaluation
is presumably relevant to (1) his substance abuse history; (2) the likelihood
he can overcome his addiction; (3) and what services, if any, might be able
to assist him in resolving his issues with substance abuse, unstable housing,
and lack of resources to support the children. Without those documents,
the superior court could not properly assess whether the Department met
its burden of proving that at the time of the severance, Parents had failed to
make the necessary changes to show they can properly parent the children.
See Marina P., 214 Ariz. at 330, ¶ 22.

¶17           The lack of visitation notes for the four-month period leading
up to the termination hearing is also significant. Implicit in the
Department’s obligation to establish that it made diligent reunification
efforts is providing documentation to the court confirming such efforts.
Without the notes, the superior court could not properly evaluate that
aspect of Parents’ progress (or lack thereof) toward reunification.

¶18           In sum, we acknowledge that Parents have struggled with
meeting the case plan goals established for family reunification. As far as
the record reveals, they missed a substantial number of drug tests and
unnecessarily delayed in accomplishing many of the tasks they were
expected to complete. However, Parents’ last three months of TASC testing
records, Father’s psychological evaluation, and the last four months of
Parents’ visitation notes are critical evidentiary pieces missing from this
record. Without that information, we cannot say that reasonable evidence
supports the superior court’s determination that the Department proved by




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                   CINDY A., SAMUEL S. v. DCS et al.
                        Decision of the Court

clear and convincing evidence any of the three grounds for severance
alleged in the motion for termination.4

                              CONCLUSION

¶19          For the foregoing reasons, we vacate the superior court’s
order terminating Mother’s and Father’s parental rights to the children and
remand for further proceedings consistent with this decision.




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




4      Given our conclusion, we need not address Father’s argument that
his counsel was ineffective by failing to bring to the superior court’s
attention that Father had completed substance abuse education.


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