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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   DESIREE A., DONOVAN J., Appellants,

                                         v.

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

                              No. 1 CA-JV 18-0481
                                FILED 8-20-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD32006
                 The Honorable Jeanne M. Garcia, Judge

                                   AFFIRMED


                                    COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant Mother

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

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
                  DESIREE A., DONOVAN J. v. DCS, D.A.
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.


T H U M M A, Judge:

¶1           Desiree A. (Mother) and Donovan J. (Father) appeal the
termination of their parental rights to their son, D.A. Because they have
shown no error, the termination order is affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            D.A. was born in July 2015. In January 2016, the Department
of Child Safety (DCS) took D.A. into custody and filed a dependency
petition alleging domestic violence between, and substance abuse by, the
parents and that Mother was not properly caring for D.A. The superior
court found D.A. dependent as to both parents in June 2016 and adopted a
family reunification case plan, later adding a concurrent case plan of
severance and adoption.

¶3            DCS offered Mother individual counseling with a domestic
violence component, visitation, parent aide services, a psychological
evaluation, transportation and rule-out drug testing, which was negative
for controlled substances. DCS offered Father similar services. Father
minimally participated in services. Although Mother participated more
regularly, she struggled to engage with D.A. during visits and to meet the
goals set by parent aides.

¶4           After a change in case plan to severance and adoption, in
January 2017 DCS filed a motion to terminate parental rights, alleging
substance abuse as to Father and as to both parents: neglect, abuse and
nine- and 15-months time-in-care. After a three-day adjudication ending in
October 2017, the court denied the motion to terminate in December 2017.



1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).



                                       2
                 DESIREE A., DONOVAN J. v. DCS, D.A.
                         Decision of the Court

¶5            In the December 2017 ruling, the court found DCS failed to
prove abuse or neglect. For the remaining grounds alleged, the ruling
focused on DCS’ obligation to make a diligent effort to provide appropriate
reunification services. See Ariz. Rev. Stat. (A.R.S.) § 8-533(D) (2019).2 The
court found DCS “dropped the ball for Mother’s individual counseling,”
meaning those services ended by April 2017. The court also noted Dr. James
Thal’s recommendation that, given Mother’s intellectual limitations,
“verbal feedback and repetition be used to enhance Mother’s
understanding and retention of information,” and his opinion that “this
recommendation needed to be conveyed to Mother’s service providers.”
Yet the DCS case manager, the court observed, “[did] not know if Dr. Thal’s
recommendations were used in assisting Mother achieve her goals in her
Parent Aide or in her counseling sessions.” Similarly, the court noted
psychologist Dr. Glenda Eklund’s testimony that Father’s intellectual
limitations should be accounted for when providing services but that
“[t]here [was] no evidence that Dr. Eklund’s recommendations to
accommodate Father’s [limitations] ha[d] been communicated to service
providers or ha[d] been used by service providers.”

¶6             Although expressing “serious concerns with” the parents’
behavior, the court concluded that DCS “ha[d] not been diligent in
providing appropriate reunification services.” On this basis, the court
denied the motion to terminate and changed the case plan back to family
reunification.

¶7            At a June 2018 review hearing, over the parents’ objections,
the court again changed the case plan to severance and adoption. DCS’ June
2018 motion to terminate alleged 15 months’ time-in-care as the sole
statutory ground.

¶8             At the second termination adjudication, held on two days
ending in October 2018, the parents and a new DCS case specialist testified.
The court began trial by noting it did not intend “to relitigate everything
that was part of that first trial,” took judicial notice of the first trial and
incorporated the December 2017 findings in its findings. After the second
trial, the court entered a November 2018 ruling granting the second motion
to terminate.




2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                      3
                 DESIREE A., DONOVAN J. v. DCS, D.A.
                         Decision of the Court

¶9            This November 2018 ruling reaffirmed the December 2017
finding that, as of that time, DCS had not provided appropriate
reunification services and had not proved any statutory ground for
severance. After detailing services DCS had provided after December 2017,
however, the court found DCS had made “diligent efforts . . . to effectuate
reunification of the family.” The court further concluded the parents had
“failed to fully and successfully participate in the reunification services
provided.”

¶10           The November 2018 ruling acknowledged Mother had
completed individual counseling and addressed substance abuse and
domestic violence issues, adding the parents were “no longer together
[and] do not see each other.” Nevertheless, the court found Mother had not
“successfully addressed the concern” that she was unable to properly care
for D.A. and therefore had not “remedied all the circumstances that caused
[D.A.’s] out of home placement.” In concluding Mother would “not be
capable of exercising proper and effective parental care and control for
[D.A.] in the near future,” the court noted Mother

             has not complied with her psychiatric care. She
             has not successfully completed two Parent Aide
             referrals. She was not consistent with her visits
             or skill sessions and therefore cannot
             legitimately assert that the “extra help”
             recommended by the psychological evaluation
             was lacking in this regard. Her failure to make
             the behavioral changes in her parenting skills
             was the problem: texting or otherwise using her
             phone, allowing Maternal Grandmother to care
             for the child, sleeping, and/or allowing [D.A.]
             to watch too much television during her visits
             were the problem.

¶11           As for Father, the court found he participated in visits with
D.A. only “sporadically.” The court also found Father had been closed out
of individual counseling and substance abuse treatment and testing due to
lack of participation, noting Father testified he failed to attend these
services “because he was in between jobs and trying to get himself settled.”
The court further found Father “lacks stable employment and housing. He
has not demonstrated sobriety. He has not participated in counseling to
address his anger and/or domestic violence.” On that basis, the court
concluded Father would “not be capable of exercising proper and effective
parental care and control for [D.A.] in the near future.”


                                     4
                  DESIREE A., DONOVAN J. v. DCS, D.A.
                          Decision of the Court

¶12           The court found termination of the parents’ rights was in
D.A.’s best interests and granted the motion to terminate. This court has
jurisdiction over the parents’ timely appeal of the November 2018 ruling
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-120.21(A) and 12-2101(A) and Arizona Rules of Procedure for the
Juvenile Court 103-104.

                                DISCUSSION

I.     Mother And Father Have Not Shown The Superior Court Erred By
       Finding DCS Made Diligent Efforts To Provide Appropriate
       Reunification Services After The December 2017 Ruling.

¶13           As applicable here, to terminate parental rights a court must
find by clear and convincing evidence that DCS has proven at least one
statutory ground articulated in A.R.S. § 8-533(B) and by a preponderance of
the evidence that termination is in the child’s best interests. See Kent K. v.
Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts,” this court will affirm the superior
court’s termination order if it is supported by reasonable evidence. Jordan
C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citations
omitted).

¶14            When DCS seeks termination based on 15-months time-in-
care, it must show by clear and convincing evidence: (1) the child has been
in out-of-home placement for 15 months or longer; (2) DCS has made
diligent efforts to provide appropriate reunification services; (3) “the parent
has been unable to remedy the circumstances that cause the child to be in
an out-of-home placement” and (4) “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 statutory
requirement of diligent efforts, which is “mandated on constitutional
grounds,” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49 ¶ 15 (App.
2004) (citation omitted), means DCS must provide parents “with the time
and opportunity to participate in programs designed to improve the
parent’s ability to care for the child;” it does not require that DCS provide
“every conceivable service” or “undertake rehabilitative measures that are
futile,” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192 ¶¶ 34, 37
(App. 1999) (citations omitted).




                                        5
                 DESIREE A., DONOVAN J. v. DCS, D.A.
                         Decision of the Court

¶15            On appeal, both parents challenge the finding that DCS made
diligent efforts to provide appropriate reunification services after the
December 2017 ruling, and Father also challenges the court’s finding that
termination was in D.A.’s best interests. DCS argues the parents waived
most or all of their services-related arguments by failing to raise them with
the superior court. Because both parents raised several objections to DCS’
provision of services before the superior court, and because “the decision
to find waiver is discretionary,” Aleise H. v. Dep’t of Child Safety, 245 Ariz.
569, 573 ¶ 13 (App. 2018) (citation omitted), this court addresses Mother
and Father’s substantive arguments, in turn.

       A.     Mother.

¶16           Mother argues the court erred in finding DCS provided her
appropriate reunification services, asserting DCS failed “to provide her
with consistent, uninterrupted individual counseling” until “late 2017.”
Mother is correct that the court’s December 2017 ruling found DCS had
“dropped the ball for Mother’s individual counseling” up to that point in
time. But DCS’ provision of services before December 2017 was not at issue
during the 2018 trial, which focused on the services and the parents’
participation and behavior modification after the 2017 trial. Mother does
not appear to challenge the services DCS provided after the 2017 trial, which
were the only services at issue at the 2018 trial and in this appeal.

¶17            The record supports the court’s finding that DCS made
diligent efforts to reunify the family after the December 2017 ruling. DCS
provided Mother counseling and parent aide services, which the court
could find, based on the record, were informed by Dr. Thal’s
recommendations. DCS also provided Mother with case management and
transportation services. Although Mother claimed in June 2018 she had not
been receiving bus passes, the court properly found parent aide records did
not show a “significant pattern of lack of transportation as the reason for
missed visits or skill sessions.” Instead, they showed Mother cancelled only
one skill session for lack of transportation. Mother completed the required
counseling but closed out of parent aide services unsuccessfully due to
multiple missed skill sessions unrelated to a lack of transportation.
Moreover, despite Mother’s participation in a portion of the required parent
aide skill sessions, the record showed continued concern about her
behavior during visits, and, as recounted above, the court found she had
not made the behavioral changes necessary for reunification. On this
record, Mother has not shown the court erred in finding DCS made diligent
efforts to provide her appropriate reunification services after the December
2017 ruling.


                                      6
                   DESIREE A., DONOVAN J. v. DCS, D.A.
                           Decision of the Court

       B.     Father.

              1.      Diligent Efforts.

¶18          Father argues DCS failed to make diligent efforts to provide
him appropriate substance abuse testing and treatment and doctorate-level
individual counseling after the December 2017 ruling. Reasonable evidence
supports the court’s finding to the contrary.

¶19            Regarding substance abuse treatment, a minute entry from
February 2018 shows TERROS was “open for [Father]” at that time. After a
new case specialist began in April 2018, Father requested another TERROS
referral, indicating the prior referral had been closed out. The case specialist
testified he referred Father to TERROS in spring or summer 2018, but later
received a closure letter, meaning Father had again closed out of treatment
unsuccessfully.

¶20            Although the record reflects some confusion about substance
abuse testing, reports indicate DCS referred Father to TASC for testing in
April 2018. Yet Father had closed out of testing unsuccessfully by May 2018
because he “was required to provide a urinalysis 7 times,” he “did not
provide any tests” and he did not call in to determine whether he needed
to test. DCS also informed Father in June 2018 he should be testing with
another service provider. Although Father was aware of the testing
requirement, the referral later “lapse[d]” or was suspended because Father
failed to participate.

¶21           Finally, Father “reported he self-referred for counseling”
services as early as June 2017, and the case specialist testified a counseling
referral was open in April 2018. At trial, Father maintained that as late as
July 2018 he had “been doing it [him]self,” but acknowledged he had not
been going to the counseling because he had “been in between jobs, trying
to get money to really get on th[e] bus and get around,” and because the
therapist “was busy.” Father recalled last attending counseling in February
2018 and that he had been “closed out” because he missed his “last three
appointments” with his assigned therapist. Nonetheless, Father did
nothing regarding counseling until “a few weeks” before the October 2018
trial, when he asked DCS to refer him to another counselor.

¶22          As Father concedes on appeal, DCS offered him adequate
“supervised visits, a parent aide, . . . and transportation after” the December
2017 ruling. The record also supports the court’s finding that Father
attended visits with D.A. “sporadically” and later “was unsuccessfully



                                       7
                   DESIREE A., DONOVAN J. v. DCS, D.A.
                           Decision of the Court

closed out” of parent aide services “because of his inconsistent visits and
skill sessions.”

¶23            Father argues A.R.S. § 8-533(B)(8)(c) required DCS to allow
him “the opportunity to participate in services for at least” 15 months
before the court could terminate his parental rights on the 15-months time-
in-care ground. By its text, the statute requires only that “[t]he child has been
in an out-of-home placement for a cumulative total period of fifteen months or
longer,” A.R.S. § 8-533(B)(8)(c) (emphasis added), and does not dictate a
minimum time period over which DCS must provide services. Instead, DCS
must provide parents “with the time and opportunity to participate in
programs designed to improve the parent’s ability to care for the child.”
Mary Ellen C., 193 Ariz. at 192 ¶ 37; see also A.R.S. § 8-533(D) (directing the
court to “consider the availability of reunification services to the parent”
when considering termination based on 15-months time-in-care). DCS
provided Father repeated opportunities over a period of months to
participate in services offered to improve his ability to care for D.A. Father
has not shown the court erred by terminating his parental rights based on
his failure to participate in those services.

              2.      Best Interests.

¶24           Father argues “reasonable evidence [did] not support [the
court’s] best interest finding,” pointing to evidence he alleges weighs
against that finding. Father also asserts the court “did not consider the
impact on [D.A.] to permanently lose a connection to his biological family
forever.”

¶25           Once a statutory ground for termination has been proven,
“the focus shifts to the interests of the child as distinct from those of the
parent.” Kent K., 210 Ariz. at 285 ¶ 31. At that point, the court’s primary
concern “is ‘protecting a child’s interest in stability and security.’”
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016) (citation omitted).
“[T]ermination is in the child’s best interests if either: (1) the child will
benefit from severance; or (2) the child will be harmed if severance is
denied.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018)
(citation omitted). Although “the child’s prospective adoption is a benefit
that can support a best-interests finding,” Demetrius L., 239 Ariz. at 4 ¶ 16
(citation omitted), the court “must consider the totality of the circumstances
existing at the time of the severance determination,” Alma S., 245 Ariz. at
150-51 ¶ 13 (citation omitted).




                                        8
                 DESIREE A., DONOVAN J. v. DCS, D.A.
                         Decision of the Court

¶26          The court found D.A. was “thriving” in his current placement,
which was providing him “with a loving and nurturing home
environment.” The court also found the “[p]lacement intends to proceed to
adoption, which shall provide [D.A.] with the added benefit of stability and
permanency.” The court noted three-year-old D.A. had been moved six
times before the current placement and that multiple members of D.A.’s
family had “either been ruled out or not responded to [DCS’] request for
information to assess them.” When concluding DCS had proved the 15-
months time-in-care ground, the court stated:

             [D.A.] has waited almost three years for his
             parents to fully assume their responsibilities,
             which include[] taking care of themselves. Both
             parents are still struggling with caring for
             themselves, let alone [D.A.]; he should not have
             to wait any longer.

Father has not shown the court abused its discretion in finding termination
was in D.A.’s best interests.

                              CONCLUSION

¶27          The termination order is affirmed.




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




                                        9
