                          NOTICE: NOT FOR PUBLICATION.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


                           AMANDA S., Appellant,

                                        v.

 ARIZONA DEPARTMENT OF ECONOMIC SECURITY, R.R., Appellees.

                             No. 1 CA-JV 13-0313
                              FILED 06-10-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015JD201100026
                  The Honorable Richard Weiss, Judge

                                  AFFIRMED


                                   COUNSEL

Law Offices of Heather C. Wellborn, P.C., Lake Havasu City
By Heather C. Wellborn
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellees
                       AMANDA S. v. ADES, R.R.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.


N O R R I S, Judge:

¶1           Amanda S. appeals from the superior court’s order
terminating her parental rights to her son, R.R., arguing the Arizona
Department of Economic Security (“ADES”) failed to present sufficient
evidence to terminate her parental rights. Amanda also argues the
superior court should have admitted a home study into evidence at the
termination hearing. For the following reasons, we disagree with
Amanda’s arguments and affirm the superior court’s termination order.

            FACTS AND PROCEDURAL BACKGROUND

¶2           In May 2011, Amanda admitted herself into a hospital
because she “was really bad into a breakdown” and was suffering from
memory lapses or “blackouts,” hallucinations, and depression. R.R., who
was then three years old, initially stayed with family friends, but ADES
placed him in foster care on June 21, 2011.

¶3            On August 25, 2011, ADES filed a dependency petition
alleging Amanda had neglected R.R. due to her untreated mental health
needs, inadequate housing, and financial instability. Mother denied the
allegations but stipulated to the need for a dependency and submitted the
matter to the superior court, which found R.R. dependent and approved
family reunification as the appropriate case plan.

¶4           On October 2, 2012, ADES reported to the superior court that
Amanda had experienced an “emotional breakdown” on August 23, 2012
and had been taken to a mental health facility because of concerns for her
mental stability. ADES further reported Amanda had left an inpatient
treatment facility against medical advice, had “struggle[d] to remain on
her medication,” and had admitted she may never be able to parent R.R.
due to instability. ADES thus recommended changing the case plan to
severance and adoption. On November 20, 2012, the superior court
declined to change the case plan to severance and adoption but did
approve concurrent case plans of family reunification and severance and



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                        AMANDA S. v. ADES, R.R.
                          Decision of the Court

adoption. On March 5, 2013, however, the superior court changed the
case plan to severance and adoption.

¶5            In March 2013, Amanda petitioned the superior court to
return R.R. to her under Rule 59 of the Arizona Rules of Procedure for the
Juvenile Court. Following an evidentiary hearing, the superior court
denied the Rule 59 motion.

¶6            At the subsequent termination adjudication hearing that
began on September 17, 2013, the parties stipulated to the admission of
evidence from the Rule 59 hearing. At the conclusion of the hearing, the
superior court found ADES had presented clear and convincing evidence
to terminate Amanda’s parental rights under Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(8)(c) (2014) (15 months out-of-home placement)
and that termination was in R.R.’s best interests. 1

                               DISCUSSION

I.     Sufficiency of the Evidence

       A.     Termination Under A.R.S. § 8-533(B)(8)(c)

¶7             Amanda first argues ADES failed to present clear and
convincing evidence to terminate her parental rights under A.R.S. § 8-
533(B)(8)(c) (15 months out-of-home placement).   See A.R.S. § 8-537(B)
(2014); Ariz. R.P. Juv. Ct. 66(c). We disagree.

¶8             We review the superior court’s decision to terminate
parental rights for an abuse of discretion and will not disturb its findings
unless they are clearly erroneous with no reasonable evidence to support
them. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d
43, 47 (App. 2004). In termination proceedings, the superior court “is in
the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).

              1The    court also found ADES had presented clear and
convincing evidence to terminate Amanda’s parental rights under A.R.S.
§ 8-533(B)(2) (neglect), (B)(3) (mental illness), and (B)(8)(a) (nine months
out-of-home placement). We do not address these additional grounds for
termination because clear and convincing evidence supports termination
under A.R.S. § 8-533(B)(8)(c). See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (citations omitted).



                                      3
                        AMANDA S. v. ADES, R.R.
                          Decision of the Court

¶9            Under A.R.S. § 8-533(B)(8)(c), a court may terminate parental
rights 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 or voluntary placement pursuant to § 8-
              806, 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.[2]

The “circumstances which cause[d] the child to be in an out-of-home
placement” are those that exist at the time of termination. See Marina P. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App.
2007) (explaining the same phrase as it is used in A.R.S. § 8-533(B)(8)(a)).

¶10            At the time of the termination hearing, R.R. had been in out-
of-home placement continuously for more than 26 months. The superior
court found Amanda had been unable to remedy the circumstances that
led to R.R.’s out-of-home placement and there was a substantial likelihood
that she was not capable of exercising proper and effective parental
control in the near future. ADES presented evidence at the Rule 59 and
termination hearings that Amanda was unable to care for R.R. due to her
mental illness, inadequate housing, and financial instability. The ADES
case manager testified she was not compliant with her case plan because
of her mental health medication management, inadequate housing, and
financial instability.

¶11           Additional evidence presented at the Rule 59 and
termination hearings revealed the following: Amanda had been receiving
mental health services, including being placed on mental health
medication, since she was a child. Her diagnoses were chronic and, at the
time of the hearings, included mood disorder, not otherwise specified and


              2The party seeking termination must also show “the agency
responsible for the care of the child has made a diligent effort to provide
appropriate reunification services.” A.R.S. § 8-533(B)(8). Amanda does
not argue ADES failed to meet this requirement, and we therefore do not
address it.



                                      4
                       AMANDA S. v. ADES, R.R.
                         Decision of the Court

borderline personality disorder.       Amanda had been prescribed
antipsychotic medication, but her medication use had been “very
sporadic,” and she had a history of taking herself off of medication. At
the time of the hearings, Amanda was still admittedly suffering from
depression, had hallucinations as recently as May 2013, and had issues
with memory lapses or blackouts as recently as November 2012. 3

¶12            Furthermore, Amanda’s medical professionals were
concerned that she had the habit of “paint[ing] maybe a slightly rosier
picture than things were” and that she was “superficially bright,”
meaning she could project an image that may not have been accurate.
Amanda’s psychological evaluation conducted on August 27, 2013 -- after
the Rule 59 hearing but before the termination hearing -- by a licensed
psychologist reported Amanda had “[s]erious mental illness that
include[d] mood instability, psychotic symptoms, and depression, along
with problematic personality patterns.” The psychologist further noted
that her antipsychotic medication treatment “will likely need to continue
for a prolonged and indeterminate period of time with a high probability
of additional psychotic symptoms if medication treatment is
discontinued” and noted that “despite recommendations for a number of
years . . . [she] has not been consistent with medication treatment.” The
psychologist’s prognosis that Amanda would be able to “discharge
parental responsibilities in the foreseeable future appeared to be guarded”
because of her problems with long-term medication compliance,
discrepancies regarding the occurrence of blackouts, continued
unemployment, financial instability, and associated difficulties attending
to daily and basic needs. Moreover, R.R. required special care, and ADES
was concerned with Amanda being able to maintain her own mental
health while caring for him.

¶13          The record reflects that although Amanda had made great
strides and commendable progress in working on her mental health
needs, her progress happened much too late in the process. Even though
Amanda was proactive in seeking services and had been attending

             3The   parties dispute whether Amanda had physically
harmed R.R. during her blackouts. The case manager testified R.R. had
told a case investigator that Amanda had bitten him while he was still in
her care, and Amanda acknowledged she was concerned because R.R.
said she had bitten him. However, Amanda testified the purported bite
mark was a scrape from the neighbor’s steps, but she also admitted she
did not know what had happened to R.R. during her blackouts.



                                    5
                        AMANDA S. v. ADES, R.R.
                          Decision of the Court

individual counseling and group sessions and receiving case management
and therapy and medication management from her mental health
providers, she had only been compliant in these areas since March 2013.
And, in light of the care R.R. required, the superior court did not abuse its
discretion in finding Amanda would not be capable of exercising proper
and effective parental care and control in the near future because she did
not adequately understand R.R.’s needs and her own mental health
condition in order to appropriately care for him.

¶14          The record also reflects Amanda’s housing was not
appropriate for R.R. ADES obtained a home study on the home, and the
evaluator recommended against placing R.R. in the home, in part, because
of the care he required. Furthermore, Amanda’s financial situation was
precarious; she was unemployed, although she sold crafts and baked
goods to earn approximately $150 per month and received benefits from
the Arizona Health Care Cost Containment System and food stamps.

¶15          Based on our review of the record, ADES presented clear
and convincing evidence supporting the superior court’s termination
under A.R.S. § 8-533(B)(8)(c).

       B.     Best Interests

¶16           Amanda also argues ADES failed to present sufficient
evidence termination was in R.R.’s best interests. When determining
whether parental termination would be in the best interests of the child,
the party seeking termination must show by a preponderance of the
evidence “how the child would benefit from a severance or be harmed by
the continuation of the relationship.” Maricopa Cnty. Juvenile Action No. JS-
500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990); see also Ariz. R.P. Juv. Ct.
66(c). The superior court found termination was in R.R.’s best interests
because R.R. was adoptable and he was receiving the care he needed.
The court also found that returning R.R. to Amanda might cause him
distress under the then-existing situation. Testimony from the case
manager, along with other evidence, fully supports these findings. Again,
on this record, the court did not abuse its discretion in finding termination
was in R.R.’s best interests.

II.    Exclusion of the Home Study

¶17            Amanda further argues the superior court should have
admitted a written home study she obtained on her home. Reviewing for
abuse of discretion, we disagree. See Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App. 2005).


                                      6
                       AMANDA S. v. ADES, R.R.
                         Decision of the Court

¶18            The superior court excluded the home study because it was
untimely disclosed and the court did not believe the study would be
helpful in determining R.R.’s best interests. After the termination hearing
date was set for September 17, 2013, the court imposed a disclosure
deadline of September 4, 2013. On the second day of the severance
hearing, September 23, 2013, Amanda sought permission to submit a
home study into evidence, stating she had disclosed it to ADES on
September 20, 2013, but had timely disclosed the evaluator as a witness
and the parties contemplated the evaluator would provide a written home
study. The court excluded the report as untimely, but it nevertheless
allowed the evaluator to testify about her observations concerning the
suitability of Amanda’s home. Under these circumstances, the court did
not abuse its discretion in excluding the written home study.

                             CONCLUSION

¶19          For the foregoing reasons, we affirm the superior court’s
termination order.




                               :gsh




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