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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            KATHRYN S., Appellant,

                                         v.

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

                              No. 1 CA-JV 18-0412
                                FILED 4-25-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD530548
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
                        KATHRYN S. v. DCS, A.S.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

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

             FACTS AND PROCEDURAL BACKGROUND

¶2           Mother is the biological parent of Anatolii, born in October
2016. In December 2016, Mother was arrested and charged with first-degree
murder of Michael A. (“Father”), Anatolii’s biological father. Following
Mother’s arrest, the Department of Child Safety (“DCS”) petitioned for
dependency based on neglect, alleging Mother was unable to provide
Anatolii with the necessities of food, clothing, shelter, medical care, and
parental supervision due to her incarceration.

¶3           Before her arrest, Mother executed a consent of a parent to the
guardianship of a minor child and a power of attorney delegating parental
powers over Anatolii in favor of Rae V. (“Aunt”). On December 22, 2016,
DCS took temporary custody of Anatolii and placed him in a foster home.
The following day, DCS placed Anatolii with Father’s parents (“Paternal
Grandparents”), before Father’s paternity was established. The placement
led Aunt to move to intervene in the dependency.

¶4            Mother contested the petition. The court heard oral argument
regarding Aunt’s motion to intervene and denied the motion because the
child was not parentless and a guardian ad litem was assigned. The court set
a dependency hearing for April 2017 and ordered Mother to appear
telephonically, but Mother failed to appear. The court continued the
hearing until May. On May 18, 2017, the court held the contested
dependency hearing at which Mother appeared telephonically, and the
court adjudicated Anatolii dependent.

¶5            In the juvenile court’s order finding Anatolii dependent, the
court ordered Mother to participate in “parenting classes or other services
available [to Mother] while she is incarcerated.” Mother completed Bible
correspondence courses and American Community Correction Institute


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                         KATHRYN S. v. DCS, A.S.
                           Decision of the Court

courses during her incarceration. DCS sent mother photographs of Anatolii
and provided Paternal Grandparents letters that Mother wrote. DCS did
not offer any independent services to Mother.

¶6            In July 2017, DCS moved to terminate Mother’s parental
rights to Anatolii based on neglect under Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(2). In May 2018, DCS amended its termination
motion to include fifteen months’ time in out-of-home care under A.R.S.
§ 8-533(B)(8)(c).

¶7            The court held a termination hearing in August 2018. The
juvenile court found DCS proved by clear and convincing evidence
grounds for termination based on neglect and out-of-home placement. The
juvenile court also found DCS proved by a preponderance of the evidence
that termination was in Anatolii’s best interests. Mother timely appealed,
and we have jurisdiction under A.R.S. § 8-235(A) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

                               DISCUSSION

¶8             The right to custody of one’s child is fundamental but not
absolute. Michael J. v. ADES, 196 Ariz. 246, 248, ¶¶ 11–12 (2000). To support
termination of parental rights, DCS must prove one or more statutory
ground for termination by clear and convincing evidence. A.R.S. § 8-537(B);
Kent K. v. Bobby M., 210 Ariz. 279, 283–84, ¶ 19 (2005). The juvenile 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 review the court’s termination decision
for an abuse of discretion and will affirm unless no reasonable evidence
supports the court’s findings. Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8
(App. 2004).

¶9             Mother argues her parental rights should not have been
terminated because: (1) DCS failed to make diligent efforts to provide
appropriate reunification services required by A.R.S. § 8-533(B)(8)(c);
(2) DCS did not provide sufficient evidence to establish a substantial
likelihood that she would not be capable of exercising proper and effective
parental care and control in the near future pursuant to A.R.S.
§ 8-533(B)(8)(c); (3) DCS failed to establish by clear and convincing evidence
the grounds for termination based on neglect pursuant to A.R.S.
§ 8-533(B)(2); and (4) terminating her parental rights was not in Anatolii’s
best interests.




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                         KATHRYN S. v. DCS, A.S.
                           Decision of the Court

A.     DCS is Not Required to Undertake Futile Efforts When Providing
       Appropriate Reunification Services Under A.R.S. § 8-533(B)(8)(c).

¶10             DCS is required to make diligent efforts to provide
appropriate reunification services under A.R.S. § 8-533(B)(8)(c). In deciding
whether DCS met its burden, the court was required to “consider the
availability of reunification services to the parent.” A.R.S. § 8-533(D); Jordan
C. v. ADES, 223 Ariz. 86, 93, ¶ 17 (App. 2009). DCS is not required to provide
the parent with every conceivable service, but DCS must provide a parent
with the time and opportunity to participate in programs “designed to
improve the parent’s ability to care for the child.” Jordan C., 223 Ariz. at 94,
¶ 20. We have never required DCS to undertake measures that are “futile.”
See, e.g., id. (A.R.S. § 8-533(B)(8)’s requirement that DCS provide diligent
reunification services does not require DCS to undertake futile efforts);
Christina G. v. ADES, 227 Ariz. 231, 237, ¶ 25 (App. 2011) (affirming
termination even though DCS did not request a hearing to determine if
services were futile); Maricopa County Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994) (the department “fulfilled its statutory mandate” to
make diligent efforts to provide reunification services, despite the parent’s
failure or refusal to participate in the programs or services offered).

¶11            The juvenile court noted DCS did not provide any
reunification services for Mother but found reunification efforts would
have been futile due to her incarceration. We agree. DCS caseworkers
testified that DCS provided Mother with pictures of Anatolii and facilitated
communication with the child by giving the placement letters Mother wrote
“in hopes of engaging mother.” A DCS caseworker further testified that
given the “nature of mother’s incarceration and charges” any attempts at
reunification would be futile because they would not be made with the
“hopes of a probable quick reunification.” DCS could not do more because
it could provide no services to ameliorate Mother’s incarceration—the
reason Anatolii is in out-of-home care. See James H. v. ADES, 210 Ariz. 1, 3,
¶ 9 (App. 2005) (incarceration causes damage to the parent-child
relationship because of physical separation, and DCS does not have services
to correct that reality). Therefore, the juvenile court did not abuse its
discretion by finding DCS did not need to provide reunification services
because they would be futile.




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                         KATHRYN S. v. DCS, A.S.
                           Decision of the Court

B.     Sufficient Evidence Supports the Court’s Finding There Was a
       Substantial Likelihood Mother Would Not be Capable of
       Exercising Proper and Effective Parental Care and Control in the
       Near Future.

¶12           DCS is also required to prove by clear and convincing
evidence that there is a substantial likelihood the parent will not be capable
of exercising proper and effective parental care and control in the near
future. A.R.S. § 8-533(B)(8)(c).

¶13            Mother argues the juvenile court relied on “mere speculation”
to find she would not be capable of exercising proper and effective parental
care and control in the near future. We disagree. Mother’s first-degree
murder trial was set for May 2018 and subsequently rescheduled until after
the termination hearing in November 2018. The juvenile court heard
testimony that Mother’s criminal trial could be continued again. 1 Further,
even if Mother were to be released following her criminal trial, DCS reports
stated she would need to be assessed to determine what services, support,
and behavioral changes would be required to facilitate reunification. At the
time of termination, substantial evidence showed that Mother would not be
able to exercise effective parental care and control in the near future and the
juvenile court did not err by finding DCS proved by clear and convincing
evidence the ground for termination based on Anatolii’s out-of-home
placement. 2

C.     The Court Did Not Abuse its Discretion by Determining that
       Termination Was in Anatolii’s Best Interests.

¶14            Under A.R.S. § 8-533(B), the juvenile court must also find by
a preponderance of the evidence that termination is in the child’s best
interests. Kent K., 210 Ariz. at 284, ¶ 22. In doing so, the court presumes that
the interests of the parent and child have diverged if a statutory ground is


1      We note that as of April 1, 2019, Mother’s charges were still pending
in Pinal County. See In re Sabino R., 198 Ariz. 424, 425, ¶¶ 4–5 (App. 2000)
(appellate court may take judicial notice of superior court records).

2      If evidence supports termination on one of the statutory grounds
upon which the juvenile court orders termination, we need not address
claims pertaining to the other grounds. Jesus M. v. ADES, 203 Ariz. 278, 280,
¶ 3 (App. 2002). Accordingly, we do not address Mother’s argument that
DCS failed to prove the ground for termination based on neglect.



                                       5
                         KATHRYN S. v. DCS, A.S.
                           Decision of the Court

proven. Alma S. v. DCS, 245 Ariz. 146, 150, ¶ 12 (2018). The focus shifts to
the child, and the court’s primary concern is the child’s stability and
security. Id. The court must consider the totality of the circumstances at the
time of termination when determining whether termination is in the child’s
best interests. Dominque M., 240 Ariz. 96, 99, ¶ 12 (App. 2016).

¶15            Here, the juvenile court found termination would provide
Anatolii with a permanent, safe, and stable home. The court explained that
even if Mother was released, the unknown “time period it would take to
determine whether reunification is viable . . . is not in the child’s best
interest.” The court also found that Anatolii was out of Mother’s care for
most of his life, he deserved permanency, and even if the current placement
were to be disrupted, the child was adoptable.

¶16           Mother argues the juvenile court relied on her incarceration
and presumed her guilt as the basis of termination. We find nothing in the
record to support such a conclusion. Mother also argues DCS and the court
disregarded her power of attorney and consent for guardianship. Once a
court has found the dependency, a power of attorney or consent for
guardianship is only some evidence to be considered by the juvenile court
as to the child’s appropriate placement; it is not dispositive. Maricopa
County Juv. Action No. JD-05401, 173 Ariz. 634, 639 (App. 1993). The juvenile
court held oral argument on Aunt’s motion to intervene based on the
agreements and denied the motion. Nothing suggests the juvenile court
disregarded the power of attorney. Reasonable evidence supports the
court’s findings, and the court did not err by finding termination was in
Anatolii’s best interests.

                               CONCLUSION

¶17          For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights.




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




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