                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                             JAIMEE S., Appellant,

                                        v.

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

                             No. 1 CA-JV 14-0150
                              FILED 12-18-2014


           Appeal from the Superior Court in Maricopa County
                             No. JD510726
               The Honorable Aimee L. Anderson, Judge

                                  AFFIRMED


                                   COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Appellee Department of Child Safety
                          JAIMEE S. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1           Jaimee S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to L.B. and L.B. (collectively, “the
children”). Mother alleges the juvenile court erred when it found (1)
Mother is unable to discharge her parental responsibilities due to a history
of drug abuse and (2) Mother substantially neglected or willfully refused to
remedy the circumstances that caused the children to be in an out-of-home
placement.1 For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In January 2013, the Arizona Department of Economic
Security (“ADES”) 2 filed a dependency petition against both Mother and
the children’s biological father Shannon B. (“Father”). In April 2013, the
court found the children dependent as to Mother and Father and approved
ADES’ case plan of family reunification concurrent with severance and
adoption. In August 2013, the juvenile court found both parents were
working toward family reunification and directed that the parents had “60
days to try and complete the services that they need to complete.” At the
following report and review hearing in October 2013, the juvenile court
reprimanded the parents on their failure to engage in services, warning the
parents “better step it up.”

¶3            Over Mother’s objection, the juvenile court changed the case
plan to severance and adoption in December 2013. In January 2014, ADES


1     Mother does not appeal the juvenile court’s finding that the
termination of her parental rights serves the best interests of the children.

2       In May 2014, Child Protective Services (“CPS”) was removed as an
entity within ADES and replaced by the Department of Child Safety
(“DCS”), an entity outside of ADES. We refer to the parties as they existed
at the time of the proceedings.



                                     2
                          JAIMEE S. v. DCS, et al.
                           Decision of the Court

filed a motion for termination and alleged three specific grounds for
termination of the parent-child relationship between the children and
Mother.3 First, ADES asserted Mother was unable to discharge her parental
responsibilities because of a history of chronic abuse of dangerous drugs
and there were reasonable grounds to believe the condition will continue
for a prolonged indeterminate period. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(3)(West 2014).4 Second, ADES alleged the children had been in an
out-of-home placement for a cumulative total period of nine months or
longer, pursuant to a court order. See id. at § 8-533(B)(8)(a). Last, ADES
alleged the children, who are under three years old, had been in an out-of-
home placement for a cumulative total period of six months or longer,
pursuant to a court order. See id. at § 8-533(B)(8)(b). ADES also alleged the
best interests of the children would be served by terminating the parent-
child relationship. See id. at § 8-533(B).

¶4           The juvenile court held a severance hearing on May 19, 2014.
Mother’s attorney stated Mother had decided not to contest the termination
and wished to make a statement to the court. Mother stated she understood
what she had done with regard to the children, she was six months sober,
and currently pregnant. In addition, Mother explained:

              I could have had [the children] home a long
              time ago, you know, and it was my decision to
              keep going back doing drugs and keep going
              back and being like oh, you know, I can worry
              about this a couple months later, the next trial,
              the next court date, you know. No, it doesn’t
              work like that with two babies.

¶5            With the juvenile court’s permission, Mother then left the
hearing while her attorney remained to represent her interests. During the
hearing, a CPS case manager testified at length regarding the allegations in
the motion to terminate and was cross-examined by Mother’s attorney. The
CPS case worker provided specific factual information supporting the
allegation that Mother was unable to discharge her parental responsibilities

3      Father did not contest the termination of his parental rights and is
not a party to this case.

4     We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.




                                     3
                          JAIMEE S. v. DCS, et al.
                           Decision of the Court

due to a history of dangerous substance abuse that will likely continue for
an indeterminate period of time.5 In addition, the CPS case manager
indicated Mother had been offered several services, including participation
in the SENSE program, TASC referrals, TERROS referrals, access to two
parent aides, and a psychological exam, and that Mother’s participation in
these programs over the course of two years was “poor.” The juvenile court
found that the allegations in the motion for termination had been proven
by clear and convincing evidence and terminated the parent-child
relationship between Mother and the children. Mother timely appealed.
We have appellate jurisdiction pursuant to the Arizona Constitution,
Article 6, Section 9; A.R.S. § 8-235(A); and Rule 103(A) of the Arizona Rules
of Procedure for the Juvenile Court.

                                ANALYSIS

¶6            Mother alleges the juvenile court erred when it found (1)
Mother was unable to discharge her parental responsibilities due to a
history of drug abuse and (2) Mother substantially neglected or willfully
refused to remedy the circumstances that caused the children to be in an
out-of-home placement. Mother contends neither finding is supported by
substantial evidence in the record. We disagree.

¶7             In addition to proving the existence of a statutory ground for
termination by clear and convincing evidence, it must also be shown that
the ground for termination “somehow deprives the parent of the ability to
effectively care for the child.” Maricopa Cnty. Juv. Action No. JS-6831, 155
Ariz. 556, 558, 748 P.2d 785, 787 (App. 1988). Unless the juvenile court’s
findings are clearly erroneous, this court will not substitute our opinion for
that of the juvenile court. Pima Cnty. Dependency Action No. 93511, 154 Ariz.
543, 545, 744 P.2d 455, 457 (App. 1987) (citation omitted).

¶8           In the present case, Mother alleges her previous substance
abuse does not prevent her from discharging her parental responsibilities.6


5       The CPS case manager indicated that the children were born
substance-exposed and that over approximately two years, Mother missed
or tested positive on at least 60 out of 113 required urinalysis tests.

6      In its answering brief, ADES concedes that “there is insufficient
evidence to sever Mother’s parental rights under A.R.S. § 8-533(B)(3).” This
court is not required to accept ADES’ concession, and here, we decline
ADES’ admission, as ample evidence exists in the record to substantiate



                                      4
                          JAIMEE S. v. DCS, et al.
                           Decision of the Court

Despite Mother’s allegation, there is ample evidence in the record that
substantiates the juvenile court’s finding. Mother failed to participate in
several services offered by ADES. Mother completed approximately fifty-
one percent of her required urinalysis tests. Due in part to Mother’s lack of
compliance, Mother needed three separate referrals to TERROS.7 Mother
also failed to attend a scheduled psychological evaluation. Moreover, on
appeal, Mother asserts she has been sober since September 2013, yet Mother
failed to attend sixty-one percent of her scheduled visits with the children
from September to December 2013. Based on the record before this court,
the evidence supports the juvenile court’s findings that Mother is unable to
discharge her parental responsibilities due to a history of drug abuse.
Mother’s lack of participation in the services offered by ADES over the
course of two years, coupled with her failure to point to any evidence other
than her negative drug screenings “since November 2013,” further support
the juvenile court’s finding that Mother’s drug abuse deprives her of the
ability to effectively care for the children.8 See Raymond F. v. Ariz. Dep’t of
Econ. Sec., 224 Ariz. 373, 378, ¶ 25, 231 P.3d 377, 382 (App. 2010) (citation
omitted) (holding where a parent’s treatment history demonstrates the
parent’s inability to maintain sobriety, “there is little hope of success in
parenting”).

¶9            The juvenile court similarly did not err when it found Mother
substantially neglected or willfully refused to remedy the circumstances
that caused the children to be in an out-of-home placement. The record
demonstrates that Mother acknowledged her inconsistent and ultimately
failed attempts to stay sober, stating “I could have had them home a long

terminating Mother’s parental rights under A.R.S. § 8-533(B)(3). See State v.
Sanchez, 174 Ariz. 44, 45, 846 P.2d 857, 858 (App. 1993) (citation omitted).

7      On one occasion, Mother’s referral to TERROS closed when she
attended NAC Guiding Star, a rehabilitation facility. The CPS case manager
indicated, however, had Mother not attended rehabilitation, this TERROS
referral may have then been closed due to lack of participation.

8       While Mother has not tested positive for drugs since November 2013,
she has missed three required urinalysis tests. A missed test is considered
a positive test result. In addition, Mother’s drug screenings past April 2014
are not contained in the record; thus, there is no way to verify the accuracy
of this assertion. Moreover, there is nothing in the record to show Mother
has found permanent employment or a stable living environment, which
would assist in her ability to effectively care for the children.



                                      5
                          JAIMEE S. v. DCS, et al.
                           Decision of the Court

time ago . . . it was my decision to keep going back doing drugs.” Mother
asserts on appeal “[d]rug use is not easily resolved, and cannot reasonably
be accomplished in 6 or 9 months,” however, Mother has had over two
years to participate in ADES services designed to assist her in achieving a
sober lifestyle. Mother’s attempts to engage in the services offered by ADES
were sporadic at best and the juvenile court did not err in terminating
Mother’s parental rights. See Maricopa Cnty. Juv. Action No. JS-501568, 177
Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994) (stating “a trial court is well
within its discretion in finding substantial neglect and terminating parental
rights” when a party makes only sporadic attempts to correct the
circumstances creating an out-of-home placement). On the record before
us, we find no error, as the juvenile court’s findings are supported by
substantial evidence.

                              CONCLUSION

¶10           For the foregoing reasons, we affirm.




                                :gsh




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