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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              JANINE E., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, A.S., R.S., Appellees.

                              No. 1 CA-JV 17-0026
                               FILED 8-1-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD27032
                 The Honorable Jeanne M. Garcia, Judge

                                   AFFIRMED


                                    COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
                          JANINE E. v. DCS, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Retired Judge Patricia K.
Norris1 joined.


J O N E S, Judge:

¶1            Janine E. (Mother) appeals the juvenile court’s order
terminating her parental rights to A.S. and R.S. (the Children). Mother
argues the Department of Child Safety (DCS) failed to prove by clear and
convincing evidence that severance was warranted on the ground of abuse,
and failed to prove by a preponderance of the evidence that severance was
in the Children’s best interests. For the following reasons, we affirm.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            In September 2013, the Children’s father (Father) requested
DCS care for the Children, then ages six and four, while he sought treatment
for substance abuse. After learning Mother did not have stable housing for
the Children, DCS assumed custody of them, placed them with their
paternal grandmother (Grandmother), and filed a petition alleging the
Children were dependent as to Mother on the ground of neglect.3 Mother
was referred for substance abuse testing and treatment, a psychological




1      The Honorable Patricia K. Norris, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Sections 3 and 20, of the Arizona Constitution.

2       “We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights.” Marianne N. v. DCS, 240
Ariz. 470, 471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)).

3      DCS also alleged the Children were dependent as to Father on the
grounds of neglect, substance abuse, and mental illness. The Children were
later adjudicated dependent as to Father but were ultimately returned to
his care, and DCS did not pursue termination of his parental rights.


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                          JANINE E. v. DCS, et al.
                           Decision of the Court

evaluation, counseling, therapeutic and supervised visitation, and
transportation assistance.

¶3            Shortly after removal, the Children began disclosing prior
abuse by Mother and her boyfriend, Cyrus M. These disclosures, made to
several adults throughout the case, included Mother and Cyrus
handcuffing A.S. to her bed at night and, when she urinated in the bed,
Cyrus repeatedly spanking her before throwing her in a cold shower while
Mother pushed her face down on the floor of the bathtub. A.S. also reported
Mother and Cyrus would “poke” her in the vagina and spank her with a
paddle. R.S. reported “mommy and Cyrus put tape on her mouth one time
to keep her from screaming.” Although A.S. denied that occurrence, she
then confirmed the tape they had put on R.S.’s mouth was gray duct tape.
The Children also began exhibiting problematic behaviors, including
aggressive outbursts and attempts at self-harm that ultimately required
hospitalization. These behaviors worsened after contact with Mother, who
was observed whispering to the Children during visitation. DCS records
indicate three prior reports of neglect or physical abuse by Mother and/or
Cyrus in 2012 that were closed as unsubstantiated. Mother claimed those
reports were made by a “disgruntled roommate” and denied she or Cyrus
abused the Children.

¶4           Visitation was suspended at the recommendation of the
Children’s therapist because Mother violated visitation guidelines, and
then all contact stopped while the abuse allegations were investigated.
Mother was, however, permitted to send cards and letters through DCS.
The investigation was closed, and no charges were filed, because Cyrus
denied the allegations and refused a polygraph test. In March 2014, the
juvenile court adjudicated the Children dependent as to Mother and
adopted a case plan of family reunification.

¶5           In April 2014, Mother participated in a psychological exam
with Celice Korsten, Psy.D. Mother reported she had discontinued her
romantic relationship with Cyrus in December 2013 but continued to reside
with him for financial reasons. She denied Cyrus had sexually abused the
Children and excused his failure to take the polygraph test because “[he]
has degenerative disc disease and . . . has not been able to get to the police
department” for the test. Dr. Korsten observed Mother to have “a pattern
of denying and minimizing her problems” and to “exhibit[] limited insight
and judgment into her difficulties.” She also found Mother “attempted to
present herself in an overly positive manner and failed to acknowledge
common human frailties . . . suggest[ing] she answered items defensively
and underreported psychological problems,” making it difficult to assess


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                         JANINE E. v. DCS, et al.
                          Decision of the Court

her psychological functioning. Dr. Korsten opined Mother’s prognosis to
become a minimally adequate parent was fair, but only “if she were to
obtain stable housing and gainful employment” and end her relationship
with Cyrus. She recommended Mother participate in individual therapy to
help her develop more effective coping skills and address her poor
judgment and lack of insight, as well as family therapy and parenting
classes.

¶6            In May 2014, Cyrus moved to Washington. That same month,
A.S. underwent a psychological evaluation with Glenn Moe, Ph.D., wherein
she reasserted instances of physical abuse and expressed an extreme fear of
Cyrus. Dr. Moe diagnosed A.S. with post-traumatic stress disorder (PTSD)
stemming from prior physical abuse. He did not believe A.S. had been
sexually abused. Dr. Moe recommended A.S. continue individual therapy
to address her past trauma and engage in therapeutic visitation with
Mother, but only if Mother did not rekindle her relationship with Cyrus.

¶7            In August 2014, the juvenile court adopted a concurrent case
plan of severance and adoption. The following October, Mother began
therapeutic visits with the Children to rebuild their trust in her. Around
this time, Grandmother began insisting A.S. had been sexually abused by
Cyrus, and visits were stopped. The DCS caseworker consulted Dr. Moe,
who concluded Grandmother may be negatively influencing A.S.’s view of
Mother and recommended DCS consider placing the Children elsewhere.
He reiterated that, although he found no evidence of sexual abuse, A.S. had
made credible reports of physical and emotional abuse inflicted in Mother’s
home and suffered from PTSD as a result. Following an evidentiary hearing
in December, the juvenile court ordered DCS to find the Children a
therapeutic foster home. Despite receiving therapy and medication
management, the Children’s behavioral issues continued.

¶8            In January 2015, R.S. participated in a psychological
evaluation with Dr. Moe. R.S. disclosed past physical and emotional abuse
by Cyrus, including him handcuffing her in a dark room and forcing her to
stand in a corner with no clothes on. R.S. repeatedly described Cyrus as
very angry and mean to her and that she had a “‘plan’ to behave well” when
returned to Mother so that Mother and Cyrus “won’t hurt us.” R.S.
expressed deep fear of Cyrus, including a fear that he would take her away
and kill her, but nonetheless identified with him, stating that Cyrus “is
mean but I still love and miss him,” and “I don’t care if he hurts me.” Dr.
Moe concluded R.S. was also a victim of physical and emotional abuse by
Cyrus.



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                         JANINE E. v. DCS, et al.
                          Decision of the Court

¶9             In February 2015, the Children were moved to a therapeutic
foster home, and their behaviors improved. Mother began individual
counseling, which she completed in July, and successfully completed
therapeutic visits with the Children. Because Mother was engaged in
services and reported she had discontinued all contact with Cyrus, the
juvenile court returned the Children to Mother’s physical custody, with the
assistance of a family reunification team, in August. Nonetheless, as a
precaution, the safety plan that was implemented prevented the Children
from having any contact with Cyrus. But a few weeks later the Children’s
behaviors began to escalate, and R.S. reported to her teacher that “Cyrus
went away to Washington to hide, but he is back . . . and she is not allowed
to tell [her therapist] that Cyrus is back” living in Mother’s home. A.S.
confirmed Cyrus was in the home, and she was directed not to tell anyone.
DCS was also concerned that Mother was not providing the Children
adequate food, failed to tell their new school about their individualized
education plans, and was not keeping up with the Children’s medications
and appointments. After concluding the Children were no longer safe in
Mother’s home, the court returned the Children to DCS’s care.

¶10          Although Mother denied she or the Children had any contact
with Cyrus since he moved to Washington, Cyrus spoke, in person, with a
member of the family reunification team and attended a court hearing in
October 2015. At any rate, Mother resumed her relationship with Cyrus
and the two conceived a son shortly thereafter.

¶11           Meanwhile, the Children reported to their attorney, their
guardian ad litem, and the DCS caseworker that they were happier in the
foster home because they felt safer and, although they loved their Mother,
they wanted nothing to do with Cyrus. Despite the Children’s fear, Mother
was observed telling them that Cyrus missed them and denied he had
caused them any trauma. Over the parents’ objections, the juvenile court
changed the case plan to severance and adoption. DCS immediately moved
to terminate Mother’s parental rights. Mother continued supervised
visitation until May 2016 when she moved to Washington with Cyrus.

¶12           Mother objected to the severance, and the juvenile court held
a three-day contested hearing in September and October 2016. At the time
of the hearing, Father was participating in services, and the Children had
returned to his custody.

¶13         At the hearing, Mother testified she was financially
dependent upon Cyrus, and the two were engaged with “a marriage license
and everything.” Mother refused to consider the possibility that Cyrus


                                     5
                           JANINE E. v. DCS, et al.
                            Decision of the Court

mistreated the Children or that the Children suffered as a result of their
interactions with him; instead, she blamed the allegations of abuse entirely
on Grandmother “put[ting] words into the girls’ mouths about Cyrus” and
the fact that “a lot of kids don’t know the difference [between abuse and
discipline].” She denied the Children were afraid of Cyrus for any reason
other than his having “a deep voice [because] if he raises his voice, . . . it can
be scary and intimidating to a small child.”

¶14            The DCS caseworker confirmed the Children remained
extremely afraid of Cyrus, and, although they love Mother, they “want
nothing to do with [her] if Cyrus is there.” The caseworker testified the
Children remained at risk for abuse and neglect because Mother is
committed to remain with Cyrus and, even if he is not directly involved
with the Children, they associate him with Mother and continue to
experience extreme anxiety over “the thought of Cyrus . . . parenting their
little brother, [and the] thought of Cyrus being with their mother.” The
caseworker opined that as long as Cyrus remains “a recurring event in their
heads,” the Children will be unable to process their trauma. Additionally,
the caseworker expressed concern that Mother was not truthful throughout
the case and would continue to minimize and conceal the Children’s fears,
Cyrus’ involvement, and her own responsibility for the circumstances.

¶15           After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence that termination of
Mother’s parental rights was warranted because: (1) Mother failed to
protect the Children from abuse by Cyrus, see Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(2)4; and (2) Mother had been unable to remedy the circumstances
causing the Children to be placed in out-of-home care for longer than
fifteen months, and there was a substantial likelihood she would be unable
to do so in the near future, see A.R.S. § 8-533(B)(8)(c). The court also found
severance was in the Children’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), -2101(A)(1),
and Arizona Rule of Procedure for the Juvenile Court 103(A).




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


                                        6
                           JANINE E. v. DCS, et al.
                            Decision of the Court

                                 DISCUSSION

I.     DCS Proved the Statutory Grounds for Severance by Clear and
       Convincing Evidence.

¶16           To terminate a parent’s rights, the juvenile court must find
clear and convincing evidence to support at least one statutory ground for
severance. See A.R.S. § 8-533(B); Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249, ¶ 12 (2000). A parent’s rights may be terminated when “the
parent has neglected or willfully abused a child.” A.R.S. § 8-533(B)(2).
“This abuse includes serious physical or emotional injury or situations in
which the parent knew or reasonably should have known that a person was
abusing or neglecting a child.” Id.; see also E.R. v. DCS, 237 Ariz. 56, 59, ¶¶
12-15 (App. 2015) (concluding abuse warranting termination of parental
rights may occur even absent serious physical or emotional injury or the
diagnosis of a medical doctor or psychologist). We review the juvenile
court’s termination order for an abuse of discretion and “will affirm the
juvenile court’s factual findings if supported by reasonable evidence.”
Dominique M. v. DCS, 240 Ariz. 96, 97, ¶ 6 (App. 2016); see also E.R., 237 Ariz.
at 58, ¶ 9 (quoting Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004)).

¶17            Mother argues the evidence is insufficient to support a
finding of abuse because: (1) Mother denied any abuse occurred;
(2) Grandmother may have influenced the Children; (3) the Children were
not trustworthy reporters and their descriptions of events are “subject to a
wide range of interpretation”; and (4) no criminal charges were ever filed.
Mother essentially asks this Court to reweigh the evidence presented to the
juvenile court — a task in which we will not engage. Bennigno R. v. Ariz.
Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 31 (App. 2013) (citing Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)). And while it is true
DCS presented no direct evidence of abuse, circumstantial evidence
remains evidence. See State v. Harvill, 106 Ariz. 386, 391 (1970) (“[T]he
probative value of direct and circumstantial evidence [is] intrinsically
similar; therefore, there is no logically sound reason for drawing a
distinction as to the weight to be assigned each.”).

¶18           As discussed above, and as found by the juvenile court, the
Children reported multiple instances of abuse by Cyrus to various adults
other than Grandmother throughout the three years they were in out-of-
home care. The juvenile court found the Children’s reports credible after
noting “A[.S.], at age 7, is too young to have any motive to lie.” Moreover,
Dr. Moe, a neutral evaluator with substantial education and relevant


                                        7
                           JANINE E. v. DCS, et al.
                            Decision of the Court

experience, believed the Children were victims of physical and emotional
abuse by Cyrus. His diagnosis was bolstered by the Children’s reactive
behaviors and their extreme fear of Cyrus.

¶19          Although Mother argues she was unaware Cyrus was
mistreating the Children, she was on notice of the allegations as early as
2012, when DCS investigated multiple reports that Mother or Cyrus was
physically abusing the Children and leaving them in dark rooms for days
without food. Mother had an additional opportunity to stand up for the
Children during the dependency proceedings when Dr. Moe diagnosed the
Children with PTSD caused by past physical abuse. Instead, however, she
simply denied any possibility the Children were fearful, traumatized, or
mistreated by Cyrus and further cemented her relationship to Cyrus by
conceiving another child.

¶20          DCS presented clear and convincing evidence to the juvenile
court that Mother knew or reasonably should have known Cyrus caused
the Children serious physical and emotional injury and willfully failed to
protect them from that harm. The juvenile court’s findings are supported
by the record, and we find no abuse of discretion.5

II.    DCS Proved by a Preponderance of the Evidence Severance was in
       the Children’s Best Interests.

¶21           To terminate parental rights, 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); Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210
Ariz. 279, 288, ¶ 41 (2005). 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.” Ariz. Dep’t of Econ. Sec. v.
Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004) (citations omitted). We, again,
review for an abuse of discretion. See supra ¶ 16.

¶22            The juvenile court found termination was in the Children’s
best interests because Mother will not protect them from harm. Indeed, the
court noted Mother “has chosen Cyrus over the girls and has moved away,”


5      Because we conclude clear and convincing evidence supports
termination of Mother’s parental rights on the ground of abuse, we need
not and do not address whether severance was also warranted based upon
the time the Children were in out-of-home care. Michael J., 196 Ariz. at 251,
¶ 27.



                                       8
                          JANINE E. v. DCS, et al.
                           Decision of the Court

and further efforts at reunification would be futile given Mother’s “disbelief
that Cyrus harmed the children.”

¶23            Mother argues severance is not in the Children’s best interests
because she shares a bond with the Children and a continued relationship
with her would allow them to have a relationship with their half-brother.6
However, “even in the face of such a bond, the juvenile court is required to
evaluate the totality of the circumstances and determine whether severance
is in the best interests of the children.” Dominique M., 240 Ariz. at 98-99,
¶ 12 (“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.”) (citing Bennigno R., 233 Ariz. at
351, ¶ 30).

¶24            The record here reflects Mother failed to protect the Children
from ongoing abuse and mistreatment by Cyrus and then proved, through
her actions, that her relationship with him was, and remains, more
important to her than the health and well-being of the Children. Mother
refused to acknowledge even the possibility that Cyrus acted
inappropriately toward the Children or that the Children suffered as a
result of their interactions with him. She blatantly ignored the Children’s
fear of Cyrus, ignored specific direction not to allow contact between Cyrus
and the Children, and used the Children’s love for her to coerce them into
hiding Cyrus’ presence in the home from their therapist and DCS, even
though they were, and remain, terrified of him. Mother then conceived a
child with Cyrus and left the state, with Cyrus, without regard to the
Children’s feelings. The juvenile court did not abuse its discretion in
concluding the negative impact of these circumstances on the Children
outweighed the potential benefit of maintaining a relationship with Mother.

¶25            Mother also asserts she could have an appropriate long-
distance relationship with Children while residing primarily out-of-state,
and any problems arising therefrom could be addressed through the family
court. However, the DCS caseworker testified a continued relationship
with Mother will exacerbate the trauma the Children already experience as
a result of their prior interactions with Cyrus and leaves open the possibility
both that the Children will again be abused by Cyrus in the future and that
Mother will again turn a blind eye to their safety. Thus, with or without

6      Mother also argues the best interests finding was in error because it
“assumes a few things,” namely, “that Cyrus harmed the Children” and
“Mother failed to protect them.” We reject this argument for the reasons
stated in Part I, supra.


                                      9
                         JANINE E. v. DCS, et al.
                          Decision of the Court

family court orders, the Children will continue to experience anxiety and
trauma “over the thought of Cyrus” and his potential to reappear in their
lives. Moreover, Mother testified it would be up to the Children to advise
the family court if they felt unsafe or insecure in Mother’s care “because
they’re old enough,” highlighting her inability and/or unwillingness to
identify anxiety in, and stand up for, the Children. Under these
circumstances, the juvenile court did not abuse its discretion in concluding
that terminating Mother’s parental rights was in the Children’s best
interests.

                              CONCLUSION

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




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




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