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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                        CHRISTOPHER H., ARXIT B.,
                               Appellants,

                                        v.

                    DEPARTMENT OF CHILD SAFETY,
                       K.H., C.H., X.H., A.H., A.H.,
                                Appellees.

                             No. 1 CA-JV 17-0167
                               FILED 10-10-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD28479
                The Honorable Jeanne M. Garcia, Judge

                                  AFFIRMED


                                   COUNSEL

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

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

Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee DCS
               CHRISTOPHER H., ARXIT B. v. DCS, et al.
                       Decision of the Court



                     MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O H N S E N, Judge:

¶1           Arxit B. ("Mother") and Christopher H. ("Father") appeal the
superior court's order terminating their parental rights to their five
children. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Mother and Father are the parents of five children: a daughter
born in January 2007; sons born in December 2007, June 2009, and August
2010; and a daughter born in November 2014.1 The parents were first
reported to the Department of Child Safety ("DCS") in July 2013; an
anonymous caller reported the home reeked so strongly of urine, feces and
garbage that it "knocks you over." The caller also reported the children
were dirty and perhaps unfed. According to Mother, DCS went to the home
and opened a case, but there is no record that the agency took any other
action.

¶3            DCS lost track of the family until May 2014, when the agency
received a report that the parents had left the children—filthy and
hungry—with the children's maternal grandmother because the parents
were homeless and living in a car. DCS then filed a dependency petition
alleging Mother and Father were failing to provide a safe and stable home
for the children. According to the petition, the parents' prior homes had
been "filthy and lacking food," and that "[u]pon removal, the children were
filthy and smelled of urine." The petition further alleged that the family
had most recently been living together in a car; both parents recently had
been arrested and Mother was currently incarcerated; Father smoked
marijuana illegally; and neither parent had means to support children. The
court issued a temporary order placing the children in the custody of their


1      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).



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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

grandmother. It later found the children dependent, affirmed its temporary
placement order and ordered a plan of reunification.2

¶4            During the dependency, the parents participated in various
services with mixed success. Mother submitted to drug tests, all of which
were negative. Father later submitted to drug testing and consistently
tested positive for marijuana, although he had a medical marijuana card by
the time of some or all of the tests. Father completed a drug treatment
program, and both parents completed a teen parenting program.

¶5            The parents participated in a parent-aide program, but were
closed out of the program unsuccessfully because they were "too passive to
redirect the kids" and "failed to address bigger behavioral issues." For
example, on one occasion, their children disobeyed adults and
inappropriately rode scooters indoors, and the parents did not intervene.
On another occasion, the parents did not discipline one of their children
who, after not allowed to have a small toy he wanted, threw plastic trash at
Father's face at close range while screaming "that's why I don't like you."
The parents failed to attend many parent-aide sessions; in the last month
that they did participate, they "consistently needed to cancel one visit a
week" and hadn't been able to "progress due to lack of attendance."

¶6            The parents participated in some supervised visits but not
others. The parents turned down visits at the grandmother's house,
including visits on holidays and the children's birthdays, which made the
children "feel as if the parents do not care for them at all," according to the
caseworker. Additionally, the parents did not take advantage of visits
offered to make up for some visits lost due to the agency's mistake. Finally,
the parents cancelled supervised visits when they did not have money to
entertain the children with fun activities.

¶7            DCS had particular concern about foul smells in the parents'
residences. One child told a caseworker that "she does not like the smell in
parent's [sic] home," and the "parents' house smells of urine and has
cockroaches in the bed sheets when they would visit." A DCS caseworker
who checked the home the parents were occupying on October 6, 2016,
encountered a smell of bleach so strong that the caseworker became dizzy
upon opening the front door. In addition, the kitchen smelled strongly of a
dead animal. Concluding the house was not a safe environment for the



2      After the parents' youngest daughter was born later in 2014, the
court found her dependent.


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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

children, DCS did not approve overnight visits in the home, but only
allowed supervised visits in the home for a brief time.

¶8            The parents admitted there were smells in various houses
they had lived in but minimized them. Father acknowledged to DCS's
psychologist that feces were on the floor of their home at the time of the
July 2013 report to DCS but said they were dog feces, not human feces, even
though the family did not have a dog. Mother admitted there were smells
in another house the parents rented for a few months but attributed the
smells to "old plumbing," a sink that flooded, a "bad toilet" and "mildew."
Mother also testified that the grandmother fabricated the reports of urine
and feces on the floor.

¶9            Mother testified that their current home smelled of a dead
animal because a cat had died in the attic. Mother had heard the cat
scratching in the attic, looked outside and noticed an unblocked air vent,
and asked the landlord to block the opening; when that happened, the cat
was trapped in the attic. Asked why she had not taken further steps to
remedy the resulting stench, Mother said it was "because, you know, each
person got a different smell to everything. Everybody nose is immune to
something totally, totally different."

¶10            The smell of marijuana in the home also concerned DCS. One
child told the caseworker that the smell of marijuana lingers in the parents'
home and she does not like it. During the October 2016 home check, the
parents' bedroom smelled of marijuana. Father insisted he did not smoke
in the house but the bedroom "smelled like a skunk," according to the
caseworker.

¶11            Dr. Al Silberman, a psychologist, examined both parents in
March 2015. Silberman noted that Mother's responses "suggest that she is
satisfied with herself as she is" and "sees little need for changes in her
behavior." According to Silberman, Mother did not feel that she had to make
parenting changes because she thought the grandmother or others had
fabricated the charges against her, including how dirty the house was. She
denied to Silberman that the family was ever homeless or lived in the car,
explaining that the children sometimes slept in the car because they would
fall asleep on the way home from her work. She said that "everyone was
knocking her." On whether Mother would be able to adequately parent in
the foreseeable future, Silberman assigned her a prognosis of "poor to
cautious." He noted that "the major reason why the children should not be
returned [is] because [Mother] doesn't understand the changes she needs to
make."


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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

¶12            Silberman concluded Father is an extremely defensive person
who "minimizes difficulties with cleanliness and marijuana." Silberman
testified he believed Father abused marijuana, which would tend to make
a person more sloppy, dirty and unmotivated, and likely contributed to
how dirty the home was. Silberman concluded that Father's prognosis for
ability to parent in the foreseeable future was "poor," with a possibility for
improvement if Father reduced his marijuana use. He predicted it was
likely that Father's marijuana use and the unclean conditions in the home
would continue, however, because "[Father] doesn't see the problem and
denies any difficulties with how the home was described as so filthy" and
was not aware of how reliant on marijuana he was.

¶13           On October 23, 2015, DCS successfully moved to change the
case plan from reunification to severance and adoption, and the superior
court ordered it to file a severance motion, which DCS filed. After a
severance hearing conducted over three days in November 2016 and
January 2017, the superior court terminated Mother's and Father's parental
rights on the ground of 15 months' time-in-care under Arizona Revised
Statutes ("A.R.S.") section 8-533(B)(8)(c) (2017).3 We have jurisdiction over
the parents' timely appeals pursuant to A.R.S. §§ 8-235(A) (2017), 12-
120.21(A)(1) (2017) and -2101(A)(1) (2017).

                               DISCUSSION

A.     Legal Principles.

¶14           Before it may sever a parent-child relationship, the superior
court must find clear and convincing evidence of at least one ground for
severance set out in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). Additionally, the court must find by a
preponderance of the evidence that severance serves the child's best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

¶15            We review a severance order for abuse of discretion. Mary
Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). "Because
the juvenile court is in the best position to weigh evidence and assess
witness credibility, we accept the juvenile court's findings of fact if
reasonable evidence and inferences support them, and will affirm a




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


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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F.,
239 Ariz. 1, 3, ¶ 9 (2016) (citation omitted).

B.     Time-in-Care Grounds for Severance.

¶16            Under the time-in-care ground for severance, parental rights
may be terminated if (1) "[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," (2) "the parent has been unable to remedy the circumstances that
cause the child to be in an out-of-home placement," and (3) "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). The circumstances at issue are "those circumstances existing
at the time of the severance that prevent a parent from being able to
appropriately provide for his or her children." Marina P. v. Ariz. Dep't of
Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (citations and quotation
omitted).

¶17           The superior court found, and neither parent contests, that the
children have been in an out-of-home placement for a cumulative total of
15 months or longer. Nor does either parent contest the court's finding that
severance is in the children's best interests. Both parents argue, however,
that they have remedied the circumstances causing out-of-home placement
and contend it is substantially likely that they will be able to exercise proper
and effective parental care and control in the near future.

¶18           The superior court rested its finding that the circumstances
causing out-of-home placement had not been remedied on three bases: (1)
the parents' persistent failure to keep a clean home; (2) Father's chronic
marijuana use; and (3) the parents' demonstrated inability to control the
children's behavior. The court further found it unlikely that the parents
would be able to adequately parent in the near future because they did not
acknowledge that they had failed to adequately parent in the past.

¶19           The superior court's conclusion that cleanliness was still a
problem is reasonably supported by the evidence. The court found that
several different homes the parents occupied had been plagued by foul
smells and concluded that this was "not a coincidence"—the parents had
been irresponsible in not repairing the problems. Mother disputes the
court's finding, arguing that "the parents did investigate, attempt to resolve,
and eventually overcome all of the Department's various complaints about
the parents' housing." Father states that "concerns about the cleanliness of
their residence . . . have been addressed." But Mother's testimony suggested


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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

she and Father took few actions to remedy the bad smells. For example, the
most recent bad smell caused by the dead cat decomposing in the attic was
apparently left to resolve itself over time. While Mother claimed she was
impervious to the foul odor, the court reasonably could have concluded
that because the parents recently failed to remedy the stench of a dead
animal in the home, they likely would not always provide a clean and
livable home for the children in the future. In any event, the court was in
the best position to evaluate the credibility of the parents in this regard.

¶20            Likewise, the superior court heard sufficient evidence of
Father's continued marijuana abuse to overcome Father's argument that he
had "addressed" any concerns about his marijuana use. Father admitted to
using marijuana illegally beginning at age 19 and tested positive for
marijuana on every drug test during the dependency. While the DCS drug
tests ended in May 2016, the caseworker reported a strong smell of
marijuana in the parents' bedroom in October 2016, little more than a month
before the severance hearing commenced. On a subsequent home check a
few weeks later—the last home check before trial—CPS employees were
not permitted to enter the bedroom to check if the smell was still present
because Mother was sleeping in the bedroom. Furthermore, the superior
court had reason to believe that Father's marijuana use negatively affects
his ability to parent, given the psychologist's testimony that marijuana use
correlates with laziness, sloppiness and lack of motivation.

¶21            Mother argues on appeal that Father's marijuana use is
privileged under A.R.S. § 36-2813(D) (2017), which provides that a medical
marijuana cardholder may not be denied various parenting rights for
conduct allowed under Arizona's Medical Marijuana Act. However,
although Father apparently had a valid medical marijuana card at one time
during the dependency, at trial, Mother testified that he no longer had one.
Even assuming Father was once privileged to use medical marijuana as the
law allows, the superior court did not abuse its discretion in considering
that he illegally used marijuana before and after he had a valid card. See
State v. Fields, 232 Ariz. 265, 269, ¶ 13 (App. 2013) (presumption that
marijuana use is privileged medical use only applies to valid cardholders);
see also A.R.S. § 36-2801(2) (2017) (defining "cardholder" as a qualifying
patient who "possesses a valid registry identification card"). More
importantly, the severance order was not based merely on Father's illegal
use of marijuana, but rather on the adverse impact of that illegal use on his
ability to parent and the safety and well-being of the children.

¶22          The court's finding that the parents were not able to control
their children's behaviors also is supported by reasonable evidence,


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                CHRISTOPHER H., ARXIT B. v. DCS, et al.
                        Decision of the Court

including reports of multiple incidents of the parents not disciplining a
disobedient child, the parents' failure to regularly attend parent-aide
sessions, the fact that the parent-aide service was closed out unsuccessfully,
and the fact that the parents cancelled supervised visits when they did not
have money for activities that would entertain the children.

¶23           Furthermore, reasonable evidence supports the superior
court's finding that it was substantially likely that the parents will not be
able to exercise proper and effective parental care and control in the near
future. Substantial evidence exists that both parents are in denial about
their past parenting failures. The psychologist reported and testified that
both parents were defensive and unwilling to acknowledge specific
parenting failures. Accordingly, he concluded that Mother's outlook for
being able to parent in the near future was "poor to cautious" and Father's
was "poor."

¶24            Mother's testimony provides reasonable support for the
court's finding that she remained in denial about her shortcomings as a
parent. While Mother cites some examples in which she acknowledged at
trial that she had made errors, she also denied at trial that her mistakes
reflected poorly on her parenting skills, and suggested at times that her
errors were excusable. For example, when Mother testified that she "fell
short," she immediately defended herself and rationalized her poor
parenting by saying that she was working at the time. On another occasion
when Mother admitted she fell short, she quickly added that despite any
shortcoming, DCS's decision to remove the children was "bogus." When
Mother said that "[y]eah, my house may have been messy," it was directly
after saying, "I never put my children in no unsafe environment."

¶25            Mother suggests that the superior court's acknowledgement
that she had made substantial strides in improving her parenting ability
over the course of the case required the court to deny severance. But some
improvement by a parent does not require the court to find that the parent
will be effective in the near future. See Matter of Appeal in Maricopa County
Juvenile Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (upholding
severance where parent's successful efforts to overcome drug addiction
were "too little, too late").




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               CHRISTOPHER H., ARXIT B. v. DCS, et al.
                       Decision of the Court

                             CONCLUSION

¶26        For the foregoing reasons, we affirm the superior court's order
severing Mother's and Father's parental relationships with their five
children.




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




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