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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            CHASTITY S., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, A.L., J.L., Appellees.

                              No. 1 CA-JV 16-0309
                               FILED 1-31-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD28174
             The Honorable Kristin C. Hoffman, Judge, Retired

                                   AFFIRMED


                                    COUNSEL

Law Office of H Clark Jones LLC, Mesa
By Clark Jones
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
                        CHASTITY S. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge:

¶1            Chastity S. (mother) appeals from the juvenile court’s order
severing her parental rights to A.L. and J.L. For the reasons that follow, we
affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Mother is the biological parent of the two children who are
subjects of this appeal, A.L. and J.L. She has two other children, H.S. and
D.R., who are not involved in this matter.

¶3            The Department of Child Safety’s (DCS) involvement in
mother’s parental relationship with the subject children developed after
DCS received reports that mother was neglecting them by engaging in
domestic violence in their presence, with her father (maternal grandfather).
Two months later, DCS received a second report alleging that mother’s
home had no running water or food, and there was a high volume of traffic
related to maternal grandfather’s selling drugs out of the home. The report
to DCS also mentioned that mother had unaddressed mental health
diagnoses.

¶4             In April 2014, DCS visited the home. They found the children
were “dirty and were wearing dirty clothes.” DCS also confirmed the home
condition, as reported, and mother admitted to having recently—in the past
several days—used both methamphetamine and marijuana. The DCS
investigator discovered that A.L., nearly six years old at the time, had not
been enrolled in school and J.L. had an untreated “medical need for his right
eye.”

¶5           DCS removed the children from the home and subsequently
filed a dependency petition, alleging the children were dependent because
mother abused substances, had untreated mental-health issues, engaged in
domestic violence, and failed to provide a home with food and running
water. Mother denied the allegations, but the juvenile court ultimately
adjudicated the children dependent.


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                        CHASTITY S. v. DCS, et al.
                          Decision of the Court

¶6           DCS offered mother substance-abuse assessment, random
drug testing, a parent-aide, a case aide, and transportation. The court
additionally ordered that DCS provide mother with substance abuse
treatment, a psychological evaluation, individual counseling, and
supervised visits.

¶7            All the while, mother remained in the same home, even
though she admits the home is a trigger for her drug use. Mother also
rescheduled, and thus failed to attend, five of six scheduled psychological
evaluations. She would eventually complete a psychological evaluation in
May 2016, after which the evaluating doctor diagnosed her with bipolar
disorder, stimulant-use disorder, and borderline intellectual functioning.

¶8            In July 2016, the juvenile court held a contested severance
hearing. The children had been out of mother’s home for more than two
years. At the hearing, a DCS case manager testified that mother had not
resolved the issues that had caused the children to be in out-of-home
placements. Mother also testified. After taking the matter under
advisement, eight days later—on July 14, 2016, the court issued its order
terminating mother’s parental rights. In the order the court found that
grounds for termination existed because the children had been in out-of-
home placement for a cumulative period of fifteen months or longer. The
court also found that termination of mother’s parental rights was in the
children’s best interests.

¶9            Mother timely appealed to this court. We have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 8-235(A) (2014), 12-
120.21(A)(1) (2016), and -2101(A)(1) (2016).1

                              DISCUSSION

¶10           On appeal, mother contends that: (1) the evidence before the
juvenile court was insufficient to support the court’s finding that
termination of her parental rights was justified on the statutory ground of
fifteen-months out-of-home placement; and (2) the court erred in finding
that termination of her parental rights was in the children’s best interests.
Because sufficient evidence in the record supports the termination of
mother’s parental rights based on the statutory ground DCS asserted for
termination and the juvenile court’s best interest findings, we affirm.


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



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

¶11            A parent’s right to custody and control of his or her own child
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248-49, ¶¶ 11-12, 995 P.2d 682, 684-85 (2000). Severance of a
parental relationship may be warranted where the state proves one of
A.R.S. § 8-533’s statutory grounds for termination by clear and convincing
evidence. Id. at 249, 995 P.2d at 686; see also A.R.S. § 8-863(B) (2014). Clear
and convincing means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25, 110 P.3d
1013, 1018-19 (2005). The juvenile court must additionally find, by
preponderance of the evidence, that severance of the parental relationship
is in a child’s best interest. Id. at 284, ¶ 22, 110 P.3d at 1018. The
preponderance of the evidence standard of proof requires the fact-finder
determine that “more probable than not,” severance is in a child’s best
interest. Id. at ¶ 25.

¶12            Because the juvenile court is in the best position to judge
credibility and weigh evidence, “we will accept the juvenile court’s finding
of fact unless no reasonable evidence supports those findings, and we will
affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002)
(citation omitted). We do not reweigh the evidence, but “look only to
determine if there is evidence to sustain the court’s ruling.” Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 48 (App. 2004)
(citation omitted).

I.     Sufficient evidence in the record supports the juvenile court’s
       finding of the statutory ground for termination.

¶13          The juvenile court determined that DCS proved the statutory
ground of fifteen-months out-of-home placement for termination of
mother’s parental rights. We agree.

¶14           Evidence sufficient to justify termination of a parent-child
relationship under A.R.S. § 8-533 includes that DCS has made a “diligent
effort to provide reunification services” and

       [t]he child has been in an out-of-home placement for a
       cumulative total period of fifteen months or longer pursuant
       to court order . . . the parent has been unable to remedy the
       circumstances that cause the child to be in an out-of-home
       placement and 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.



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                         CHASTITY S. v. DCS, et al.
                           Decision of the Court

A.R.S. § 8-533(B)(8)(c) (2014).

¶15           The record supports the court’s finding that as of the time of
the severance, the children had been in out-of-home placements for fifteen
or more months. On appeal, mother does not argue that the children should
not have been in DCS’s care for that length of time. She does, however,
argue that she engaged in the case plan services to ameliorate her substance
abuse, mental health, and domestic violence issues that led to DCS
removing the children from her home. To the contrary, the record reflects
that mother had not made the necessary progress, despite DCS offering her
various services.

¶16           Granted, the record documents that mother consistently
attended supervised visits with her children, had completed substance
abuse treatment and tested clean during much of the dependency, and, as
DCS reported, had been “sober for nearly two years[,]” as of April 2016.
However, two months before the severance hearing, her psychiatrist opined
that mother’s mental health issues caused her to “become easily frustrated
with her children, [and mother] ha[d] problems managing their behaviors,
and ha[d] a history of biting and pinching them when she [was] angry.”
The doctor further stated that the children could not safely return to mother
until she successfully participated in individual therapy and met treatment
goals. The record shows mother had not accomplished these objectives at
the time of the severance trial.2 Mother also failed to complete domestic
violence treatment and was closed out of those services in January 2016 for
non-attendance.

¶17           This evidence supports the conclusion that mother would be
unable to take the necessary steps to effectively parent the children in the
near future. Accordingly, we hold that clear and convincing evidence
supports the juvenile court’s order terminating mother’s parental rights on
the fifteen-months out-of-home placement statutory ground.




2     The record does not support mother’s position that she “could not
complete [individual therapy] because she had difficulty getting
transportation to the sessions. The record shows that DCS offered her
transportation and bus passes to assist her in her case plan services.



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

II.    Sufficient evidence in the record supports the court’s finding that
       severance was in the children’s best interests.

¶18          Mother further argues that the juvenile court erred in finding
that terminating her parental rights was in the children’s best interests
because DCS failed to prove by a preponderance of the evidence that the
children would “accrue an affirmative benefit” from her parental rights
being severed or be harmed by continuing the relationship. We disagree.

¶19            As mother indicates, the best interest inquiry “must include a
finding as to how the child would benefit from a severance [of the parent-
child relationship] or be harmed by the continuation of the relationship.”
Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734
(1990). In evaluating whether severance is in a child’s best interest, the
juvenile court is required to conduct the inquiry considering “the totality of
the circumstances.” Dominque M. v. Dep’t of Child Safety, 240 Ariz. 96, _ ¶
12, 376 P.3d 699, 702 (App. 2016). Thus, “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.” Id. at _, ¶
12, 376 P.3d at 701. Moreover, this court has held that a finding that
severance is in a child’s best interest may be accomplished by a showing
that a child is adoptable,3 and the current placement is meeting the child’s
needs. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 (App. 2004).

¶20           Here, the record indicates that although the children are
bonded with mother, they are adoptable, and the children’s placements are
meeting their needs. DCS reported that it identified an adoptive placement
for A.L. and, even began transition visits, and that J.L. is “secure and
comfortable” in his adoptive placement. One DCS case manager testified
that termination of mother’s parental rights would provide the children
with “permanency.” DCS case managers also testified that the children
lacked stability with mother. The doctor who diagnosed mother with the
noted mental health disorders just two months before the severance
hearing, found, among other things, that the children could not safely be




3      See Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884
P.2d 234, 238 (App. 1994) (“[DCS] need not show that it has a specific
adoption plan before terminating a parent’s rights; [DCS] must show that
the children are adoptable.”).




                                       6
                         CHASTITY S. v. DCS, et al.
                           Decision of the Court

returned to mother’s care until mother “moved from home.”4 As noted,
mother admits that home is a trigger for her drug use, and maternal
grandfather allegedly deals drugs out of the home. Additionally, the
juvenile court found mother’s testimony regarding the infrequency of
domestic violence between her and maternal grandfather to be “not
credible.” Juxtaposing the stability that adoption would provide the
children with an alternative uncertainty and what the record suggests is
highly likely to be an unsafe and unstable life with mother, we conclude the
court’s best interest finding, as to both children, is sufficiently supported by
the evidence.

¶21          Accordingly, the juvenile court did not err in severing
mother’s parental rights as to A.L. and J.L.

                               CONCLUSION

¶22          We thus affirm the juvenile court’s order terminating
mother’s parental rights as to both children.




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




4      We cannot reconcile mother’s claim in her opening brief on appeal
that she intends to move out from the home she shares with maternal
grandfather with the fact that she failed to do so over the twenty-seven
months, prior to severance, that the children were in DCS’s care.



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