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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              AMBER S., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, L.C., Appellees.

                              No. 1 CA-JV 17-0113
                                FILED 9-14-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD528591
                 The Honorable Timothy J. Ryan, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
                           AMBER S. v. DCS, L.C.
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1           Amber S. (“Mother”) appeals the superior court’s order
terminating her parental rights to her daughter. For the following reasons,
we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Mother and Nicolas C. (“Father”)1 are the biological parents
of L.C. (born in March 2015). When L.C. was less than one-week old, the
Department of Child Safety (“DCS”) took her into temporary physical
custody and filed a dependency petition. DCS alleged that Mother was
unable to parent L.C. due to (1) neglect because Mother and Father were
homeless and could not provide for L.C.’s basic needs and (2) Mother’s
mental health because she had a serious mental-illness and was not taking
her medication.

¶3           Mother denied the allegations, but submitted the issue of
dependency to the superior court. The court found L.C. dependent and
adopted a case plan of family reunification. DCS offered Mother the
following services to reunify with L.C.: parent aide; case aide; supervised
visits; psychological evaluation; transportation; and coordination with
Mother’s mental health provider through Partners in Recovery.

¶4             Mother participated in services, including a psychological
evaluation in September 2015 with Dr. Jessica Leclerc. Mother was
diagnosed with bipolar disorder and personality disorder with borderline
and histrionic traits. Dr. Leclerc found that if Mother “can actively engage
in services, show a pattern of stability . . . maintain a health[y] interpersonal
support system, she should be able to exhibit minimally adequate parenting
skills within the foreseeable future.”


1    The superior court also terminated Father’s parental rights in 2016;
however, he is not a party to this appeal.



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                            AMBER S. v. DCS, L.C.
                             Decision of the Court

¶5            Despite Mother’s participation in services and Dr. Leclerc’s
instructions, Mother and Father engaged in domestic violence throughout
the dependency proceedings. In November 2015, DCS updated Mother’s
case plan to reflect her domestic violence and co-dependency issues.
Mother admitted that she and Father had engaged in domestic violence
from at least 2014 — they both were arrested during one instance in 2014,
Father had assaulted her in 2014-2015 (presumably while Mother was
pregnant with L.C.), Father was arrested in 2015 when he hit someone else
in an attempt to hit Mother, and Father assaulted someone in Mother’s
apartment complex in 2016.

¶6            Given the domestic violence concerns, the superior court
changed Mother’s case plan in August 2016 to severance and adoption. The
next month, DCS filed a petition to terminate Mother’s parental rights on
the grounds of fifteen months’ out-of-home placement under Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c). DCS alleged that Mother
had failed to demonstrate that she made behavioral changes necessary to
ensure the safe return of L.C. because she was deceptive about her
continued contact with Father and lacked an understanding of the safety
concerns Father presented.

¶7            A contested termination hearing was held in February 2017.
The superior court terminated Mother’s parental rights and found that
severance was in L.C.’s best interests. Mother timely appealed the
termination. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) and 12-
120.21(A)(1) (2017). 2

                                 DISCUSSION

¶8            The fundamental right to parent one’s child is not absolute.
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior court may
terminate parental rights if it finds, “by clear and convincing evidence, at
least one of the statutory grounds set out in section 8–533,”and by a
preponderance of the evidence that termination is in the best interests of the
child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248–49, ¶ 12 (2000).
The court must consider those circumstances existing at the time of the
termination hearing. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12
(App. 2016). As the trier of fact, the superior 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.,


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


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                          AMBER S. v. DCS, L.C.
                           Decision of the Court

209 Ariz. 332, 334, ¶ 4 (App. 2004). Thus, we review an order terminating
parental rights for an abuse of discretion and will not reverse unless “there
is no reasonable evidence to support” the order. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

    I.   Sufficient Evidence Supports Severance

¶9            Mother argues insufficient evidence supports the superior
court’s order severing her parental rights because she was consistent with
her mental health services, obtained an order of protection against Father,
successfully completed individual counseling, appropriately interacted
with L.C. during visits, and obtained housing.

¶10            To meet its burden under A.R.S. § 8-533(B)(8)(c), DCS was
required to prove: (1) the child has been in an out-of-home placement for
at least fifteen months; (2) DCS has “made a diligent effort to provide
appropriate reunification services;” (3) “the parent has been unable to
remedy the circumstances” causing the out-of-home placement; and (4)
“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.”3

         A. Diligent Effort to Provide Appropriate Reunification Services

¶11         Mother argues DCS did not take the necessary steps to ensure
she was provided with individual counseling services during a six-month
lapse from May 2016 through November 2016.

¶12            DCS must provide a parent “with the time and opportunity
to participate in programs designed to help her become an effective
parent[.]” Maricopa Cty. Juvenile Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994). DCS must “undertake measures with a reasonable prospect of
success,” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34
(App. 1999), but it “is clearly not obligated to provide services which are
futile,” Pima Cty. Severance Action No. S-2397, 161 Ariz. 574, 577 (App. 1989)
(citation omitted).

¶13            At the termination hearing, DCS case manager Kimberly
Tuttle testified that Mother was receiving counseling through Partners in
Recovery, but her therapist left and was no longer providing services,

3      Mother does not challenge the superior court’s finding that L.C. had
been in an out-of-home placement for at least fifteen months. Thus, we do
not address it.


                                      4
                          AMBER S. v. DCS, L.C.
                           Decision of the Court

causing a gap in Mother’s therapy. Mother was receiving social security
disability insurance (“SSI”) for mental health issues and, as such, DCS was
not permitted to offer or refer Mother for counseling services. Further, DCS
was required to comply with the terms of SSI by coordinating with Mother’s
behavioral case manager at Partners in Recovery, Sarah Hilger. Tuttle
explained that she told Mother that if Partners in Recovery was not
providing her with therapy, Mother would have to find another
organization through SSI.

¶14            Sarah Hilger confirmed Tuttle’s account of the lapse in
Mother’s counseling. Hilger explained that Mother’s therapist left Partners
in Recovery and that she made several referrals for replacement counseling
services, but each “continued to come back as declined at capacity.” Then,
it took time to find a counselor to meet Mother at her home, as Hilger
requested, to facilitate an easier process for Mother. Mother began therapy
again in August 2016.

¶15           Over nearly two years, Mother was provided with a parent
aide, case aide, supervised visits, psychological evaluation, transportation,
and coordination with Partners in Recovery. The lapse in her counseling
was four months (May 2016 through August 2016). DCS made a diligent
effort to provide Mother with appropriate reunification services. And
given Mother’s SSI benefits and the resulting limitation placed on DCS, we
agree with the superior court’s finding that DCS “acted reasonably in
relying on the service providers providing care and services for Mother
through her SSI disability status.”

        B. Unable to Remedy Circumstances Causing Out-of-Home
           Placement

¶16          The superior court found that Mother was unable to remedy
the circumstances causing L.C. to be in out-of-home placement due to her
long-standing domestic violence issue with Father. Based on this record,
we agree.

¶17            Early in the dependency proceedings, Mother and Father
were referred for parent-aide services. At the intake session in June 2015,
Father “was asked to leave the building due to his aggressive actions and
belittling” of Mother. Mother told her case manager that “she worries about
[Father] being around because he has paranoia and aggression . . . he has
had assault charges and she does not want to go back with him.” However,
Mother returned to Father upon his release from jail, telling her case
manager she “did not mean any of those things.” In July 2015, another



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                          AMBER S. v. DCS, L.C.
                           Decision of the Court

domestic violence incident occurred between Mother and Father. And the
next month, the parent aide expressed concerns about the “continued
domestic violence encounters between [Mother and Father],” noting that
Mother was very defensive of him and stated she had “no intent on not
having a relationship with [Father] despite the domestic violence within the
relationship.” Then in September 2015, Father was arrested for assault
when he “hit [Mother’s] behavioral health case manager in the midst of
trying to hit [Mother].”

¶18           Police reports in 2016 further substantiated the continuing
violence and instability in Mother’s relationship with Father. In February
2016, Mother called police claiming she and Father got into an argument
and he kicked the wall. Apparently, Father had been staying at Mother’s
apartment, but told police he was leaving and did not intend to return. On
May 17, 2016, the landlord called police to Mother’s apartment complex
because Mother and the landlord had a verbal altercation. Witnesses told
police Mother was yelling and cursing and told the landlord “karma is a
bitch.” Less than one week later, on May 23, 2016, police were again called
to Mother’s apartment complex. In response to Mother’s prompting, Father
came to her apartment carrying a crow bar and threatening bodily harm to
people with whom Mother had arguments. Father was arrested.

¶19            Tuttle testified that Mother completed her parent-aide
referral, but not successfully due to her continuing contact with Father and
refusing to acknowledge issues of domestic violence between her and
Father. DCS was still concerned about this at the time of the termination
hearing. Tuttle explained that Mother had been instructed by DCS
numerous times it was not in L.C.’s, or her own, best interests to be in
contact with Father due to his volatile temper. In fact, at an in-person
meeting with Tuttle and the parent aide, Mother played audio recordings
of incidents of domestic violence where Mother begged Father not to hit
her. Despite this abuse, Mother continued to have a relationship with him.
Tuttle confirmed the May 23, 2016 incident where Father was arrested at
Mother’s apartment. She stated that Mother and Father had a court hearing
on May 24. Father did not appear at the hearing. When questioned, Mother
told the court she did not know Father’s whereabouts and had not had
contact with him.

¶20           Tuttle testified that up until the May 2016 incident, the case
plan was family reunification because DCS felt Mother had participated in
services and had ended her relationship with Father. But, had DCS known
Mother was still involved with Father, it would not have requested a family
reunification case plan. Tuttle stated that Father continuously threatened


                                     6
                          AMBER S. v. DCS, L.C.
                           Decision of the Court

and harassed her and other parties involved in the dependency, including
the CASA, and L.C.’s foster placement, and made blanket statements that
everyone involved would be harmed because they kidnapped his child.
Tuttle explained that despite Father’s parental rights being severed months
ago, he was still threatening everyone involved and it would be unsafe to
return L.C. to Mother. Tuttle admitted Mother had recently taken steps to
conceal her residence from Father, including obtaining an order of
protection against him. However, Mother failed to provide DCS with proof
she served, or even attempted to serve, the protective order on Father.
Tuttle acknowledged that Mother has limited funds, perhaps creating a
barrier to serving the order of protection on Father. But because Father’s
address remained the same throughout the dependency proceedings and
was the same address listed in his criminal assault case, Mother would have
known where to serve him.

¶21           Mother admitted that she had lied to the court, DCS, and
everyone involved when she stated at the May 24 hearing that she was not
involved in a relationship with Father and did not know his whereabouts.
Mother also admitted that before DCS received the May 2016 police report
and confronted her, she was having unsupervised visits with L.C. at her
home, but denied that Father was at her home during those visits. Mother
said she continued her relationship with Father because she felt they could
co-parent, that he would change. But after the May 2016 incident, Mother
said she became afraid of Father, surrounded herself with positive people
and her family, participated in therapy, took classes, obtained an
apartment, and began taking care of her depression and anxiety. As such,
Mother said she was a different person and wanted a chance to parent L.C.
because she had worked so hard.

¶22           In its severance order, the superior court detailed the
domestic violence history between Mother and Father, including Mother’s
attendance at hearings where the court admonished Father for his
threatening behaviors. Yet she continued to allow Father to live with her
and lied to the court about it. The court found:

      Mother continues to lack credibility . . .

                                ****

      . . . even though she claims that she had been untruthful in the
      past, but was being truthful at trial. It is more reasonable to
      believe Mother’s continued statements throughout the case,
      that she still wants to parent with [Father], and acts in a



                                       7
                           AMBER S. v. DCS, L.C.
                            Decision of the Court

        manner consistent with her statements that she intends to
        continue to be romantically involved with him.

                                 ****

        Mother’s claimed inability to serve the municipal court order
        of protection also lacks credibility, as domestic violence
        programs routinely provide waiver or deferment of costs of
        service, and Father’s residence at [xyz] street remains the
        same.

¶23          We conclude that the superior court did not abuse its
discretion in finding Mother had not remedied the domestic violence
circumstances that caused L.C. to be in out-of-home placement.

         C. Substantial Likelihood Mother Will Not be Capable of
            Exercising Proper and Effective Parental Care and Control in
            Near Future

¶24            Mother argues because she remedied the circumstances
causing L.C. to be in out-of-home placement, there is a substantial
likelihood she will be capable of exercising proper and effective care and
control in the near future. The superior court found, however, that Mother
was unable to rid herself of the violent and abusive relationship with
Father. We agree. Substantial evidence in the record supports the finding
that Mother will not capable of exercising proper and effective parental
control in the near future.

  II.    Severance is in L.C.’s Best Interests

¶25           Mother argues that severance is not in L.C.’s best interests and
the court should give her a chance to be reunified with L.C. because she has
changed her life.

¶26           To prove that severance is in the child’s best interests, DCS
must show that the child would either benefit from severance or be harmed
by a continuation of the parental relationship. Mario G. v. Ariz. Dep’t of Econ.
Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011). We will uphold the superior
court’s best interests determination if a preponderance of the evidence
supports it. Kent K., 210 Ariz. at 284, ¶ 22. It is sufficient that DCS show
severance would free a child for adoption, and that the child would benefit
from finding an adoptive placement. See JS-501904, 180 Ariz. at 352.
Additionally, DCS can establish that termination is in a child’s best interests



                                        8
                          AMBER S. v. DCS, L.C.
                           Decision of the Court

by presenting evidence showing that an existing placement is meeting the
needs of the child. Mary Lou C., 207 Ariz. at 50, ¶ 19.

¶27            The superior court’s finding that severance was in L.C.’s best
interests is supported by a preponderance of the evidence. Tuttle testified
that for over one year L.C. has been in a foster home that is an adoptive
placement. Tuttle said L.C.’s foster home was providing a safe and stable
home for her and caring for all her needs. Further, Tuttle testified L.C. has
a significant bond with her foster parents and brother. At the time of the
termination hearing, L.C. had been in placement for nearly her entire life.
We agree with the superior court: L.C. “should not languish in the system
and have permanency delayed.”

                               CONCLUSION

¶28          Because sufficient evidence supports the superior court’s
termination of Mother’s parental rights, we affirm.




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




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