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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               JESSE O., DANIEL W.,
                                     Appellants,

                                           v.

                DEPARTMENT OF CHILD SAFETY,1 S.O., R.O.,
                             Appellees.

                                No. 1 CA-JV 16-0232
                                   FILED 12-29-16


              Appeal from the Superior Court in Maricopa County
                                No. JD24265
                   The Honorable John R. Ditsworth, Judge

                                     AFFIRMED


                                      COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Mother

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Father




1     Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.


J O H N S E N, Judge:

¶1           Jesse O. and Daniel W. ("Mother" and "Father") appeal the
superior court's order terminating their parental rights to their two
daughters, S.O. and R.O. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            S.O. was born in 2012.2 A little more than a year later, she was
admitted to Phoenix Children's Hospital and diagnosed with "Severe
Failure to Thrive." At the time, S.O. was below the fifth percentile for height
and weight—she was the size of an average three-month-old—and had not
gained any weight in six months. Additionally, she was severely
developmentally delayed. When Mother and Father visited S.O. in the
hospital, they required multiple prompts to feed her and change her diaper.
Mother reportedly appeared "completely disengaged." Those events, in
part, caused hospital staff to raise concerns regarding "parental
noninvolvement with child care at home."

¶3            Before she left the hospital, S.O. also was diagnosed with
severe oral aversion, developmental delay and severe left-sided
hydronephrosis (i.e., swelling of the kidney). S.O.'s doctor concluded there
was a risk of permanent developmental problems if S.O. did not begin to
grow. For that reason, the doctor recommended in-home services to
monitor S.O.'s progress. These services, the doctor hoped, also might "shed
some light on how the parents interact" with S.O. S.O. was discharged from
the hospital on June 7, 2013.


2      We view the facts and draw all reasonable inferences in the light
most favorable to upholding the superior court's order. Jesus M. v. Ariz.
Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002).


                                      2
                    JESSE O., DANIEL W. v. DCS, et al.
                          Decision of the Court

¶4            On August 22, 2013, a case manager from the Department of
Child Safety ("DCS") and a family preservation counselor visited the
family's home. The case manager arrived at 11:00 a.m. and found Mother
and Father asleep with S.O. The child had not yet eaten, but her parents
were unable to prepare her formula because they were out of purified
water, which S.O. required due to her kidney condition. When Father was
asked, he said he was not sure what diet S.O. was on.

¶5            The case manager and counselor saw trash, including old
food wrappers and used tissues, covering the living room floor.
Cockroaches crawled along the floor, across the table, up the walls and over
S.O.'s toys. Mother and Father told the DCS workers they did not believe
this presented a safety concern.

¶6             Eventually, the case manager and counselor discussed family-
preservation services with Mother and Father. But Father declined the
services because he did not feel they were necessary. Although the case
manager and counselor tried to explain that S.O.'s doctor recommended the
services, the parents still refused to participate.

¶7           In September 2013, DCS took S.O. into custody on allegations
of abuse and neglect by Mother and Father. A few months later, the
superior court found S.O. dependent as to Mother and Father, and
approved a case plan of family reunification concurrent with severance and
adoption.

¶8            Shortly after S.O. was taken into custody, she had a feeding
tube installed to treat her failure to thrive. Because S.O. continued to suffer
from an oral aversion (i.e., an aversion to having food placed on or near her
mouth), she relied on a feeding tube for nutrition.

¶9           R.O. was born June 4, 2014. She was diagnosed with the same
kidney condition as her sister in each kidney. Shortly after her birth, R.O.
suffered from a severe urinary tract infection as a result of her kidney
condition. Doctors also diagnosed her as immunocompromised. DCS took
her into custody directly from the hospital and immediately filed a
dependency petition, alleging Mother was "unable to provide her child
with proper and effective parental care and control" and Father was "unable
or unwilling to provide proper and effective parental care and control for
the child." The superior court found R.O. dependent as to Mother and
Father and approved a case plan for family reunification concurrent with
severance and adoption.




                                      3
                     JESSE O., DANIEL W. v. DCS, et al.
                           Decision of the Court

¶10          DCS provided Mother and Father with the following services:
Parent aide, case aide, case management, transportation, psychological
evaluation, counseling, bonding evaluations, couples counseling and in-
home services. On April 21, 2015, DCS moved to terminate Mother and
Father's parental relationships with S.O. On January 25, 2016, it sought to
terminate the same with respect to R.O.

¶11           The severance hearing for each child began in February 2016.
After hearing the evidence, the superior court terminated Mother's parental
rights on the grounds of mental illness under Arizona Revised Statutes
("A.R.S.") section 8-533(B)(3) (2016) and 15 months' time-in-care under
A.R.S. § 8-533(B)(8)(c).3 The court terminated Father's rights on grounds of
15 months' time-in-care under A.R.S. § 8-533(B)(8)(c). Mother and Father
timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of
the Arizona Constitution, A.R.S. §§ 8-235(A) (2016), 12-2101 (2016) and
Arizona Rule of Procedure for the Juvenile Court 103(A).

                                DISCUSSION

A.     Legal Principles.

¶12            The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the
court must find by a preponderance of the evidence that termination is in
the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

¶13            We review a termination order for an abuse of discretion and
will affirm unless no reasonable evidence supports the court's findings.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Because the superior court is in the best position to "weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings," we will accept its findings of fact unless no
reasonable evidence supports them. See Jesus M., 203 Ariz. at 280, ¶ 4. On
appeal, this court will affirm a severance order unless it is clearly erroneous.
Id.




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


                                       4
                     JESSE O., DANIEL W. v. DCS, et al.
                           Decision of the Court

¶14          As relevant here, parental rights may be terminated on time-
in-care grounds if:

       [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.

A.R.S. § 8-533(B)(8)(c).

¶15           The circumstances that cause the child's out-of-home
placement are "those circumstances existing at the time of the severance
rather than at the time of the initial dependency petition." Maricopa County
Juv. Action No. JS-8441, 175 Ariz. 463, 468 (App. 1993).

B.     Mother's Appeal.

¶16           Mother argues only that there is no clear and convincing
evidence to support the court's finding that she is unable to exercise proper
and effective parental care and control in the near future.

¶17            To the contrary, reasonable evidence supports the superior
court's finding that Mother failed to remedy the circumstances that caused
each child's out-of-home placement and is unable to exercise proper and
effective care and control in the near future. Dr. James Thal, who conducted
a psychological evaluation of Mother in January 2014, measured her
intelligence in the low average to borderline range. Given these findings,
Dr. Thal concluded that Mother would face significant challenges in
learning the basics of how to care for a normally developing child, and
simply could not learn and retain the complex skills necessary to care for a
medically fragile child. Importantly, Dr. Thal also found that Mother
accepted no responsibility for S.O.'s being undersized at one year of age.

¶18            Similarly, Debra Fonville-Williams, the DCS case manager,
testified that Mother was unable to care for the children. She reported
Mother was easily distracted and had a hard time remembering things.
Indeed, according to Ms. Fonville-Williams, during supervised visits,
Father continuously had to remind Mother to care for the children's basic
needs. Furthermore, as Dr. Thal testified, Mother has a "minimal[]" support
system and is "very dependent" on Father.



                                     5
                    JESSE O., DANIEL W. v. DCS, et al.
                          Decision of the Court

¶19           Based on this record, sufficient evidence supported the
superior court's finding that Mother was unable to remedy the
circumstances that led to her children's out-of-home placement and will not
be capable of exercising proper and effective parental care and control in
the near future.4

C.     Father's Appeal.

¶20           Father likewise argues insufficient evidence supported the
decision to terminate his rights based on 15 months' time-in-care. He
contends he demonstrated he is capable of exercising proper and effective
parental care and control by participating in the services provided by DCS,
maintaining a residence and employment, and devising a plan for the care
of his children while he works and attends class.

¶21           As with Mother, reasonable evidence supports the superior
court's finding that Father failed to remedy the circumstances that caused
the children's out-of-home placement. Throughout his psychological
evaluation with Dr. Thal in January 2014, Father maintained that he and
Mother had done nothing to cause S.O.'s malnourished condition, initially
stating she was "just a runt," and later blaming S.O.'s weight on her kidney
condition. In fact, Father believed that their pediatrician only reported S.O.
to DCS because she did not like Mother and Father. Significantly, Father
expressed no reservations about Mother's ability to parent. Indeed, he
affirmatively endorsed her skills. Accordingly, Dr. Thal came away with
two chief concerns about Father's ability to parent: Father refused to take
any responsibility for S.O.'s failure to thrive and Father believed Mother
could provide adequate care of the children.

¶22            Before the severance trial began, Father had not
acknowledged Mother's limitations as a caregiver, nor had he indicated any
intent to parent the children without real assistance from Mother. Further,
Father still had not recognized the reasons S.O. was taken into care. Given
Mother's documented limitations and general dependence on Father, any
parental care plan that involved Mother would require Father to provide
the special care his children need while at the same time monitoring
Mother. Accordingly, although Father may have made some effort and
improvement, Dr. Thal concluded Father had not presented a suitable plan
for caring for the children. Similarly, the DCS case manager testified Father


4       We may affirm the order of termination on any one of the statutory
grounds on which the superior court ordered severance. Jesus M., 203 Ariz.
at 280, ¶ 3.


                                      6
                   JESSE O., DANIEL W. v. DCS, et al.
                         Decision of the Court

was incapable of parenting the children while also monitoring Mother.
And even if Father had presented a plan to parent without Mother, the case
manager noted Father had not shown he could care for the children as a
single parent.

¶23         Based on this record, sufficient evidence supported the
superior court's finding that Father was unable to remedy the
circumstances that led to his children's out-of-home placement.

                              CONCLUSION

¶24         For the foregoing reasons, we affirm the superior court's order
severing Mother and Father's parental relationships with S.O. and R.O.5




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


5      Neither Mother nor Father argue that termination is not in the
children's best interests.


                                        7
