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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              TIANA S., Appellant,

                                         v.

    DEPARTMENT OF CHILD SAFETY, B.W., L.W., T.O., D.M., P.M.,
                        Appellees.

                              No. 1 CA-JV 15-0240
                                FILED 1-26-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD15401
                 The Honorable Lisa Daniel Flores, Judge

                                   AFFIRMED


                                    COUNSEL

Gates Law Firm, LLC, Phoenix
By S. Marie Gates
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety
                           TIANA S. v. DCS, et al.
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1           Tiana S. (“Mother”) appeals the order terminating her
parental rights to her five children (“the Children”). For the following
reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2             Before Mother was sentenced to two years in prison for
identity theft, she placed the Children with her sister (“Aunt”), but failed to
give her sister any legal authority to provide for the Children’s medical,
physical, and educational needs. The Department of Child Safety (“DCS”)
subsequently filed a dependency petition, alleging Mother had “failed to
make appropriate legal arrangements for the care of her children.” Mother
did not contest the allegations, and the Children were found to be
dependent.

¶3            Nearly a year after Mother was released from prison, the
juvenile court changed the case plan and DCS subsequently filed a motion
to terminate Mother’s rights to the Children. After a trial, the court granted
the motion. The court found that DCS had proven by clear and convincing
evidence that the Children had been in an out-of-home placement for more
than fifteen months, DCS had made diligent efforts to provide appropriate
reunification services to Mother, Mother had been unable to remedy the
circumstances that caused the children to be in the out-of-home placement,
and, by a preponderance of evidence, that termination was in the Children’s
best interests. Mother appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A) and 12-2101(A)(1).




1 “We view the facts in the light most favorable to upholding the juvenile
court’s order.” Ariz. Dep’t. of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶
7, 225 P.3d 604, 606 (App. 2010) (citation omitted).

                                      2
                           TIANA S. v. DCS, et al.
                            Decision of the Court

                                DISCUSSION

¶4            Mother argues the juvenile court erred because DCS failed to
prove that her rights should be terminated. She also argues termination
was not in the Children’s best interests.2

¶5            A parent’s parental rights can be terminated when a juvenile
court finds by clear and convincing evidence the existence of a statutory
ground to support the termination, Kent K. v. Bobby M., 210 Ariz. 279, 281-
82, ¶ 7, 110 P.3d 1013, 1015-16 (2005), and by a preponderance of the
evidence that termination is in the best interests of the children. Id. at 288,
¶ 42, 110 P.3d at 1022; see also A.R.S. § 8-537. On appeal, we will affirm a
severance order unless it is clearly erroneous, and will accept the court’s
findings of fact unless there is no reasonable evidence to support a finding.
Jesus M. v. Ariz. Dep’t. of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002).

A. Statutory Ground for Termination

¶6           Mother argues the court’s ruling was clearly erroneous
because “[t]he record is void of any evidence” demonstrating that the
ground for termination was satisfied. We disagree.

¶7              When a child has been in an out-of-home placement for fifteen
months or longer pursuant to a court order, termination of parental rights
is justified if the parent fails to remedy the circumstances that caused the
out-of-home placement and there is a substantial likelihood the parent will
not be capable of exercising proper and effective parental care in the future.3
See A.R.S. § 8-533(B)(8)(c). And we have said that the “circumstances which
cause the child to be in out-of-home placement” means “those
circumstances existing at the time of the severance rather than at the time
of the initial dependency petition.” Maricopa Cty. Juv. Action No. JS-8441,
175 Ariz. 463, 468, 857 P.2d 1317, 1322 (App. 1993) (citation omitted),
abrogated on other grounds by Kent K., 210 Ariz. 279, 110 P.3d 1013.



2 Mother also argues the ruling was untimely, but fails to cite to a single
rule, statute, or case in support of her argument. As a result, she has waived
that argument. See Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, 117-18,
¶ 9, 357 P.3d 150, 152-53 (App. 2015).
3 Section 8-533(B)(8)(c) also requires DCS to prove that it made diligent

efforts to provide reunification services, but Mother does not argue that
DCS failed to provide appropriate services.

                                       3
                           TIANA S. v. DCS, et al.
                            Decision of the Court

¶8              Here, the Children were found to be dependent because
Mother was involved in criminal activity, subsequently sent to prison, but
had not given Aunt the ability to legally act for the Children. At the
severance trial, there was evidence that Mother continued to be involved in
illegal activity; she recently pled guilty to shoplifting, had received a traffic
citation for failing to show a driver’s license, failing to possess proper
license plate lights, and failing to produce evidence of insurance, and she
and her new husband (“Husband”) had gotten into a physical domestic
altercation at a Circle K gas station that resulted in minor injuries to both.
Given that evidence, along with a report from a psychiatrist, who evaluated
Mother and opined that she “struggles with lawful behavior and would
have difficulty providing her children with reasonable role modeling,” the
evidence supports the juvenile court’s finding that Mother failed to remedy
the circumstances that caused the Children’s out-of-home placement.

¶9            The record also supports the court’s determination that
Mother would be incapable of exercising proper, parental care in the near
future. In addition to her legal problems, Mother’s “poor choices . . . keep
the children out of her care.” Mother has been the victim of domestic
violence for most of her life, and by men with extensive criminal histories.
In fact, the psychiatrist’s report stated that Mother had “a pattern of
involvement with problematic men,” and that she would “need to address
her relationships with men if she is to stably and safely parent her children.”

¶10           She, however, did not work towards having better
relationships. Soon after she was released from prison, Mother started
dating the man she would marry, who spent nearly a decade in prison,
despite the concerns of various counselors and a psychologist. She knew
DCS did not want the man to be around the Children, and appeared to
agree when she wrote a letter to the court in September 2014, stating she
had “opted to have less frequent contact with [Husband], because my main
focus is my children at this time.” Despite the letter, a red herring, Mother
continued dating the man and married him two months after DCS filed its
motion to terminate her parental rights. As a result, she chose her Husband
over her children, despite otherwise completing services designed to
reunify the family. Consequently, there was evidence supporting the
court’s finding that there was a substantial likelihood that Mother would
not be capable of exercising proper and effective care of the children in the
near future.

¶11          Mother also claims the juvenile court erred in finding she was
not a credible witness. During her testimony, Mother denied several
contacts involving law enforcement, despite the existence of credible


                                       4
                           TIANA S. v. DCS, et al.
                            Decision of the Court

evidence to the contrary. We do not reweigh testimony. “The [juvenile]
court [is] in the best position to measure” credibility based on all the
evidence presented, especially where there is conflicting testimony.
Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142
(1994). We find no abuse of discretion by the court’s credibility
determination.

B. Best Interests of the Children

¶12           Mother argues termination was not in the Children’s best
interests. She claims there were other less drastic alternatives like “a simple
guardianship” or “[s]ole custody rights to the fathers with supervised
parenting time.”

¶13            To establish best interests, the juvenile court had to find that
“the [Children] would benefit from a severance or be harmed by the
continuation of [their] relationship” with Mother. Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations omitted). A
benefit exists when, for example, a child will become adoptable as a result
of the termination. Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348,
352, 884 P.2d 234, 238 (App. 1994). It can also exist when a child will
“benefit psychologically from the severance.” See id. And because we give
great weight to the Children’s interest in being in a safe, loving, and stable
home, Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021, a court can also
consider evidence showing that the “existing placement is meeting the
needs” of the children. Mary Lou C. v. Ariz. Dep’t. of Econ. Sec., 207 Ariz. 43,
50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (citation omitted).

¶14            The Children have been living with Aunt for more than three
years. At the time of the severance hearing, the oldest child had recently
been named to his school’s honor roll, and placed fourth at a state
geography event. The second oldest boy was associating with other
children during lunchtime and participating in activities with the rest of his
class, something he was apparently unable to do before coming into Aunt’s
care as a result of previous behavioral problems. The middle child was
reading, writing, and “bringing home star-student awards.” The two
youngest daughters were learning the alphabet and how to count, and, in
the case of the youngest child, learning “all her colors.” And Aunt testified
she was willing to continue providing a safe and stable environment for the
Children, and said she had the ability to meet their social, emotional,
financial, and educational needs. Clearly, Aunt has been providing
nurturing care for the Children.




                                       5
                         TIANA S. v. DCS, et al.
                          Decision of the Court

¶15            Moreover, the termination will free two of the Children for
adoption by their Aunt. She is also willing to adopt the other three, or as
many who may be freed for adoption, but recognizes it is important that
they remain together. Consequently, the court did not abuse its discretion
by finding that termination of Mother’s parental rights was in the best
interests of the Children.

                             CONCLUSION

¶16          We affirm the termination of Mother’s parental rights.




                               :ama




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