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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              PRECIOUS B., Appellant,

                                           v.

              DEPARTMENT OF CHILD SAFETY, J.E., Appellees.1

                                No. 1 CA-JV 15-0129
                                 FILED 11-5-2015


              Appeal from the Superior Court in Maricopa County
                                No. JD23628
                   The Honorable Lisa Daniel Flores, Judge

                                     AFFIRMED


                                      COUNSEL

Denise L. Carroll, Scottsdale
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety




1The caption has been amended to safeguard the child’s identity pursuant
to Administrative Order 2013-0001.
                          PRECIOUS B. v. DCS, J.E.
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1           Precious B. (Mother) appeals from the superior court’s order
terminating her parental rights to J.E., arguing there was no reasonable
evidence to support a statutory ground for termination and that
termination was not in J.E.’s best interests. Because the record supports the
superior court’s findings, the order is affirmed.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            J.E. was born in 2009. In May 2013, the Department of Child
Safety (DCS) took J.E. into custody after receiving reports of Mother’s
substance abuse and neglect of the child. DCS filed a dependency petition
alleging substance abuse and mental illness and that Mother neglected J.E.
by leaving him with her other young children for extended periods and not
meeting his basic needs. In June 2013, J.E. was found dependent and the
superior court adopted a family reunification case plan, directing that
services for Mother include a parent aide, supervised visitation at least once
a week, a psychological evaluation, substance abuse testing and treatment,
transportation and that Mother self-refer for counseling through Indian
Health Services (IHS).3

¶3             Mother failed to attend a December 2013 report and review
hearing. Mother also failed to attend a March 2014 permanency planning
hearing, where counsel indicated Mother had no contact with her since
early December 2013. Mother, who continued to have no contact with her
attorney, failed to appear at a June 2014 hearing where the court changed


2This 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).

3Although Mother is an enrolled member of the Navajo Nation, J.E. is not
and the Indian Child Welfare Act does not apply to this case.



                                       2
                          PRECIOUS B. v. DCS, J.E.
                            Decision of the Court

the case plan to severance and adoption. DCS then filed a motion to
terminate, alleging nine-months time-in-care and abandonment. See Ariz.
Rev. Stat. (A.R.S.) § 8-533(B)(1), (8)(a) (2015).4

¶4            At a severance adjudication held in March 2015, Father (who
is not a party to this appeal) did not contest the motion, and the superior
court received testimony from the DCS caseworker and from Mother. The
case worker testified that Mother’s efforts to participate in services
provided were no “more than minimal.” Mother’s participation in drug
testing was “minimal,” having tested just 13 of 36 required times. Mother
participated in a psychological evaluation, which identified possible mood,
bipolar and personality disorders. Mother admitted that she agreed to self-
refer to IHS but failed to do so because she “felt like [she] didn’t need it.”

¶5             Although a family member was available to supervise visits,
Mother visited J.E. only eight times since J.E. had been taken into care
nearly two years earlier. Mother testified visits were difficult because she
did not have a car, but admitted knowing DCS would provide her a bus
pass, adding it was inconvenient to get a bus pass. Mother admitted she did
not send J.E. any cards, gifts or letters while J.E. was in care and rarely called
J.E. Because Mother did not regularly visit J.E., parent aide services were
not put in place. Although Mother testified to completing a four-hour
online parenting course, she admitted she did so the night before the trial.

¶6             The caseworker testified that severance was in J.E.’s best
interests and that the current placement with a family member is a potential
adoptive placement. Mother admitted she has not maintained a normal
relationship with J.E. but believes J.E. recognizes her as his mother and
misses her.

¶7            After taking the matter under advisement, the superior court
granted the motion to terminate on both grounds. This court has
jurisdiction over Mother’s timely appeal pursuant to A.R.S. §§ 8-265, 12-
120.21(A)(1) and 12-2101(A)(10) and Arizona Rules of Procedure for the
Juvenile Court 103-04.




4Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                        3
                          PRECIOUS B. v. DCS, J.E.
                            Decision of the Court

                                DISCUSSION

I.     The Superior Court Did Not Err In Terminating Mother’s Parental
       Rights.

¶8             As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground in
A.R.S. § 8–533(B) has been proven and must find by a preponderance of the
evidence that termination is in the best interests of the child. 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 an order
terminating parental rights so long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

       A.     Nine-Months Time-In-Care.

¶9            DCS was required to prove that J.E. was “in an out-of-home
placement for a cumulative total period of nine months or longer pursuant
to court order . . . and [Mother] has substantially neglected or willfully
refused to remedy the circumstances that cause the child to be in an out-of-
home placement.” A.R.S. § 8-533(B)(8)(a).

¶10            Mother claims she completed the services necessary to
remedy the circumstances that brought J.E. into care, meaning she did not
substantially neglect or willfully refuse to remedy the circumstances
causing the out-of-home placement. Mother’s argument, however, is not
supported by the record. In May 2013, DCS told Mother she needed to have
a psychiatric evaluation. Mother knew she could obtain the evaluation at
IHS, but did not do so. At most, Mother minimally participated in drug
testing, missing nearly two-thirds of her required samples.

¶11           Mother argues that at trial DCS did not properly prove that
she had mental health issues, and that DCS did not allege that Mother had
substance abuse issues. This argument, however, misunderstands the
significance of Mother’s participation in services. DCS did not argue that
Mother’s parental rights should be terminated because of substance abuse
or mental illness. Rather, DCS sought termination of her parental rights
because Mother substantially neglected to remedy the circumstances that
caused J.E. to be in care. Those circumstance include Mother’s neglect due
to her lack of interest in J.E., and DCS identified mental health issues as a
possible cause of that neglect. By failing to participate in a psychiatric


                                        4
                          PRECIOUS B. v. DCS, J.E.
                            Decision of the Court

evaluation and possible treatment, Mother failed to address those issues
and, in doing so, neglected to remedy the circumstances that cause J.E. to
be in care. The superior court properly could consider Mother’s actions and
inaction as indicating she substantially neglected to remedy the
circumstances causing J.E.’s out-of-home placement.

¶12           Even more significantly, the record shows Mother failed to
demonstrate a willingness and ability to care for J.E. Although Mother was
allowed visits at least once a week, during the nearly two years J.E. was in
care she visited J.E. just eight times. Mother claimed transportation issues
made it too difficult for her to travel for the visits, but the placement was
willing to meet Mother halfway. Moreover, DCS offered to provide Mother
a bus pass for transportation, but Mother was not willing to travel to collect
the pass.

¶13           Mother’s lack of regular visits also meant parent aide services,
which could have helped her learn to properly care for and parent J.E., were
not put in place. Mother’s testimony to a belief that J.E. missed her, further
shows that, by failing to regularly visit J.E., she neglected his needs. On this
record, the superior court reasonably could conclude that Mother has
substantially neglected to remedy her unwillingness or inability to
emotionally and physically care for J.E.

¶14           There was reasonable evidence for the superior court to find
that J.E. had been in out-of-home care for a period of at least nine months
and that Mother had substantially neglected to remedy the cause of the
placement. Accordingly, the court did not err in finding DCS had proven
by clear and convincing evidence the nine-month time-in-care statutory
ground for severance.5

       B.     Best Interests.

¶15             Mother challenges the superior court’s finding that severance
is in J.E.’s best interests. The best interests assessment focuses on “how the
child would benefit from a severance or be harmed by the continuation of
the relationship.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50 ¶
19 (App. 2004) (citation omitted). The case worker testified that severance
was in J.E.’s best interests because his current placement was with a family
member who was meeting his needs and willing to adopt J.E. The superior


5 Given this conclusion, this court need not address Mother’s challenge to
the superior court’s abandonment finding. See Jesus M. v. Ariz. Dept. of Econ.
Sec., 203 Ariz. 278, 280 ¶3 (2002).


                                       5
                        PRECIOUS B. v. DCS, J.E.
                          Decision of the Court

court relied on this and other evidence in finding severance to be in J.E.’s
best interests.

¶16            Mother argues J.E. recognizes her as his mother and she
believes he misses her, but admits that the bond between them is not as
strong as it should be. Although Mother seeks more time to reestablish the
bond between them, Mother did not regularly visit J.E. while he was in care
for nearly two years. Moreover, Mother does not address her ability to meet
J.E.’s needs. Accordingly, there was reasonable evidence to support the
superior court’s finding that severance is in J.E.’s best interests.

                             CONCLUSION

¶17             The superior court’s order terminating Mother’s parental
rights to J.E. is affirmed.




                                 :ama




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