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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             MAYRA T., Appellant,

                                         v.

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

                              No. 1 CA-JV 16-0380
                                FILED 4-11-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD22058
                    The Honorable Dawn Bergin, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee
                          MAYRA T. v. DCS, C.L.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


M c M U R D I E, Judge:

¶1            Mayra T. (“Mother”) appeals the superior court’s termination
of her parental rights to C.L. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Mother is the biological parent of C.L., born in February 2015.
The Department of Child Safety (“DCS”) took temporary custody of C.L. in
March 2015, after making an unannounced visit to Mother’s home finding
her extremely intoxicated and alone with C.L. DCS filed a dependency
petition on the grounds of substance abuse and neglect; C.L. was found
dependent in May 2015.

¶3            Mother’s rights to two other children were terminated in 2014
due to substance abuse. As part of the services offered by DCS in that case,
Mother underwent a psychological evaluation in November 2012, which
reported diagnostic impressions of anxiety disorder, alcohol abuse, and
borderline intellectual functioning. In April 2013, a neuropsychological
evaluation of Mother also found she had difficulty with executive function
and trouble maintaining concentration and attention. As part of the services
offered by DCS in this proceeding, Mother received two more psychological
evaluations in May 2016 and June 2016. The first was conducted by the same
doctor that performed the evaluation in 2012, and the second was
performed by a different psychologist; both provided similar diagnoses.

¶4            In October 2015, DCS moved to sever Mother’s parental rights
to C.L. on the grounds she was unable to discharge her parental
responsibilities because of a mental deficiency that would continue for a
prolonged, indeterminate period under Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(3) (2016).1 A two-day contested severance hearing was held


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



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                           MAYRA T. v. DCS, C.L.
                            Decision of the Court

in June 2016, and the superior court found sufficient grounds to terminate
Mother’s parental rights. Mother timely appealed and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution; A.R.S.
§ 8-235(A); and Arizona Rule of Procedure for the Juvenile Court 103(A).

                                DISCUSSION

¶5            Mother argues the superior court erred by finding: (1)
sufficient evidence existed proving Mother was unable to discharge her
parental responsibilities due to her mental deficiency; and (2) the severance
was in the best interests of the child.

¶6            The right to custody of one’s child is fundamental, but it is not
absolute. Michael J. v. ADES, 196 Ariz. 246, 248, ¶¶ 11–12 (2000). To support
termination of parental rights, one or more of the statutory grounds for
termination must be proven by clear and convincing evidence. A.R.S.
§ 8-537(B); Shawanee S. v. ADES, 234 Ariz. 174, 176–77, ¶ 9 (App. 2014). In
addition, the court must find by a preponderance of the evidence that
termination is in the best interests of the child. A.R.S. § 8-533(B); Mario G. v.
ADES, 227 Ariz. 282, 284–85, ¶ 11 (App. 2011).2

¶7             We view the evidence in the light most favorable to sustaining
the superior court’s findings. Christina G. v. ADES, 227 Ariz. 231, 234, ¶ 13
(App. 2011). 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.” ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App.
2004). We will accept the superior court’s findings of fact unless no
reasonable evidence supports those findings. Jesus M. v. ADES, 203 Ariz.
278, 280, ¶ 4 (App. 2002).

¶8             To justify termination of parental rights under A.R.S.
§ 8-533(B)(3), DCS must prove by clear and convincing evidence: (1) the
parent is unable to discharge parental responsibilities because of a mental
illness or mental deficiency; and (2) there are reasonable grounds to believe



2      DCS is also required to provide reasonable rehabilitative services to
a parent before seeking severance on the mental-deficiency ground. Mary
Ellen C. v. ADES, 193 Ariz. 185, 192, ¶ 34 (App. 1999). However, Mother
does not dispute that DCS provided reasonable rehabilitative services to
her before seeking severance.




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                          MAYRA T. v. DCS, C.L.
                           Decision of the Court

that the condition will continue for a prolonged indeterminate period.
Denise R. v. ADES, 221 Ariz. 92, 95, ¶ 11 (App. 2009).

¶9            Mother contends insufficient evidence existed at trial to show
that she was unable to discharge her parental responsibilities due to a
mental deficiency.3 In November 2012, Dr. DeSoto performed a
psychological evaluation of Mother and listed a diagnostic impression that
Mother had Borderline Intellectual Functioning. Dr. DeSoto concluded at
that time there were “significant concerns regarding [Mother’s] ability to
adequately parent her children independently” and she gave Mother “a
poor prognosis in demonstrating minimally adequate parenting in the
foreseeable future.” In April 2013, Dr. Walter, a neuropsychologist, found
that Mother showed difficulty with executive function and had difficulty
maintaining attention and concentration. When Dr. DeSoto reevaluated
Mother in May 2015, she found her intellectual and cognitive limitations
“remain[ed] unchanged.” In June 2016, an additional psychological
evaluation conducted by Dr. Levitan “retained” the previous diagnoses
related to her cognitive abilities.

¶10           Mother argues the evidence did not establish her mental
deficiency prevented her from being a “minimally adequate parent.”
Vanessa H. v. ADES, 215 Ariz. 252, 256 (App. 2007). However, Vanessa H.
does not set out a standard that a parent need only be “minimally
adequate.” The test, under the statute, asks the court to decide if there is
clear and convincing evidence Mother was unable to discharge her parental
responsibilities due to a mental deficiency. A.R.S. § 8-533(B)(3). Reviewing
the superior court’s finding that Mother was unable to discharge her
parental responsibilities, we find substantial evidence to support that
conclusion. Three different doctors found Mother to have cognitive
limitations that would hinder her ability to safely parent. When specifically
asked about Mother’s ability to parent, Dr. DeSoto opined “[Mother’s]
history and trajectory clearly shows an inability to parent despite her (at
times) diligent participation in services.” Accordingly, we find no error.

¶11          Mother also argues the court erred by finding the severance
was in the best interests of the child because it did not consider evidence

3       Mother also claims in her briefing the issue of mental deficiency was
not originally raised by DCS, but instead they “switch[ed]” to that ground
later in the case. This is inaccurate. DCS’s current dependency petition and
motion for termination of parental rights both cite this ground.




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                           MAYRA T. v. DCS, C.L.
                            Decision of the Court

related the child’s potential quality of life in Guatemala.4 “[A]
determination of the [child’s] best interest must include a finding as to how
the [child] would benefit from a severance or be harmed by the continuation
of the relationship.” Raymond F. v. ADES, 224 Ariz. 373, 379, ¶ 30 (App.
2010) (citing Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990)).
The court will consider whether (1) an adoptive placement is immediately
available; (2) the existing placement is meeting the needs of the child; and
(3) the child is adoptable. Id.

¶12           The superior court found severance was in the best interests
of the child because C.L. was doing well in his adoptive placement and
severance would allow “much-needed permanency for C.L.” The court’s
finding is supported by the testimony of the DCS Child Safety Specialist
assigned to the case, who testified that C.L. was currently placed in a
licensed foster home that was meeting all the child’s needs and was willing
and able to adopt him. The Child Safety Specialist also testified that C.L.
has no special needs and would otherwise be adoptable.

¶13           Mother does not deny the child benefits from his current
placement, but instead contends that C.L. could potentially benefit from the
public services offered by the Guatemalan government if he were to move
there with Mother. Furthermore, Mother claims DCS should have contacted
the Guatemalan consulate after they took temporary custody of C.L.
because Article 37 of the Vienna Convention on Consular Relations requires
authorities to inform a foreign country’s consulate when a guardian has
been appointed for a citizen of that country.

¶14           At trial, a representative from the Guatemalan consulate
spoke to the court about a variety of public services that could be offered to
Mother and C.L. if she were to return there. His statements revealed C.L.
was not considered by the Guatemalan government to be a citizen of
Guatemala. Accordingly, Mother’s argument regarding Article 37 of the
Vienna Convention on Consular Relations does not apply because C.L. is
not a citizen of Guatemala. Vienna Convention on Consular Relations art.
37, Mar. 19, 1967, 21 U.S.T. 77, 596 U.N.T.S. 261.

¶15          While there is a possibility C.L. could benefit from some
government services offered if Mother were to return to Guatemala, the
superior court must find only that the child would benefit from severance


4      Mother was born in Guatemala and moved to the United States in
2007, she is not a United States citizen. C.L. was born in the United States,
and is therefore a United States citizen, but is not a citizen of Guatemala.


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                         MAYRA T. v. DCS, C.L.
                          Decision of the Court

or be harmed by the continuation of the parent-child relationship.
Raymond F., 224 Ariz. at 379, ¶ 30. Mother’s argument does not address
either. However, the testimony of the Child Safety Specialist did show the
child would benefit from severance and the superior court found this
persuasive. Accordingly, the superior court did not err by finding that
severance was in the best interests of C.L.

                              CONCLUSION

¶16          For the foregoing reasons, we affirm.




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




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