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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          CONSUELO V., Appellant,

                                        v.

     DEPARTMENT OF CHILD SAFETY, V.G., A.G., I.M., Appellees.

                             No. 1 CA-JV 17-0226
                               FILED 11-28-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD528703
                 The Honorable Patricia A. Starr, Judge

                                  AFFIRMED


                                   COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee
                        CONSUELO V. v. DCS, et al.
                          Decision of the Court




                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.


B E E N E, Judge:

¶1           Consuelo V. (“Mother”) appeals the superior court’s order
terminating her parental rights to her three children. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In April 2015, Mother was involved in a domestic dispute
with her boyfriend involving the firing of a gun near one of her children.
That same month, the Department of Child Safety (“DCS”) filed a petition
alleging the children were dependent as to Mother because she was unable
to parent due to substance abuse, neglect, and domestic violence. DCS took
custody of the children and placed them in foster care. After a contested
dependency adjudication, the court found the children dependent as to
Mother in March 2016 and adopted a family reunification case plan.

¶3             DCS required Mother to live a sober lifestyle free from illegal
drugs. In order to assist her with this goal, DCS provided Mother with
various services, including urinalysis testing, Terros substance abuse
services, transportation, parenting-skills classes, and domestic violence and
individual counseling. Mother completed domestic violence counseling,
but did not successfully complete individual counseling. Mother finished
her parent-aide services, but she frequently missed or arrived late for visits,
acted erratically, struggled to comprehend her parental duties, and
frequently upset the children during her visits.

¶4           Throughout the dependency, Mother often missed urinalysis
testing, submitted diluted samples, and tested positive for amphetamine,
methamphetamine, and alcohol. Mother, however, denied that she had a
substance abuse problem.

¶5            In August 2016, police responded to a report from Mother
alleging that she had been shot. During this incident, police determined
that Mother had not been shot but observed her acting erratically. As a


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                        CONSUELO V. v. DCS, et al.
                          Decision of the Court

result, Mother was admitted to the Urgent Psychiatric Care (“UPC”) for two
days. While there, Mother tested positive for methamphetamine, and
admitted to using illegal substances multiple times per day and that she
was unemployed and homeless. A psychological assessment found that
Mother had an “[i]mpaired ability to make reasonable decisions” and had
“[d]ifficulty acknowledging [the] presence of substance abuse problems[.]”

¶6           Following her UPC stay, Mother continued her pattern of
non-compliance with urinalysis testing. Moreover, Mother denied that she
had a substance abuse problem and stated that she would not benefit from
additional substance abuse treatment. While Mother completed a standard
outpatient program through Terros, she refused to participate in recovery
maintenance.

¶7            Immediately following her UPC stay, the superior court
granted DCS’s request for a change of case plan to severance and adoption,
and DCS moved to terminate Mother’s parental rights to the children based
on substance abuse and 15 months out-of-home placement. See Ariz. Rev.
Stat. (“A.R.S.”) § 8–533(B)(3), (8)(c).

¶8             In May 2017, after a contested termination hearing at which
Mother testified, the superior court terminated Mother’s parental rights on
both grounds alleged and found that severance would be in the children’s
best interests. We have jurisdiction over Mother’s timely appeal pursuant
to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8–235(A),
12–120.21(A)(1), and –2101(A)(1).

                               DISCUSSION

   I.     Standard of Review

¶9             Custody of one’s children is a fundamental, but not absolute,
right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12
(2000). The superior court may terminate a parent’s rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8–533(B)
and upon finding by a preponderance of the evidence that termination is in
the best interests of the child. Id. at 248–49, ¶ 12.

¶10            We review a termination order for an abuse of discretion and
will affirm the order “unless its factual findings are clearly erroneous, that
is, unless there is no reasonable evidence to support them.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998). The court must
consider those circumstances existing at the time of the termination
hearing. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12 (App. 2016).


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                       CONSUELO V. v. DCS, et al.
                         Decision of the Court

   II.    Substance Abuse

¶11            Mother argues that the superior court erred in finding she was
unable to discharge her parental responsibilities due to substance abuse.
The superior court may terminate parental rights if (1) the parent has a
history of chronic substance abuse, (2) the parent is unable to discharge
parental responsibilities due to chronic substance abuse, and (3) reasonable
grounds exist to believe that the abuse will continue for a prolonged and
indeterminate period. A.R.S. § 8–533(B)(3); Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010).

¶12           Termination under A.R.S. § 8–533(B)(3) “does not require that
the parent be found unable to discharge any parental responsibilities . . .
but rather establish[es] a standard which permits a trial judge flexibility in
considering the unique circumstances of each termination case before
determining the parent’s ability to discharge his or her parental
responsibilities.” Maricopa Cty. Juvenile Action No. JS–5894, 145 Ariz. 405,
408–09 (App. 1985). The court must consider the “availability of
reunification services to the parent and the participation of the parent in
these services.” A.R.S. § 8–533(D).

¶13          The record provides ample support for the superior court’s
finding that Mother’s chronic substance abuse rendered her unable to
discharge her parental responsibilities. First, Mother has a history of
chronic substance abuse. Mother began using alcohol when she was 14
years old and, throughout the dependency, Mother tested positive for
alcohol, amphetamine, and methamphetamine and admitted to using these
substances multiple times a day.

¶14           Second, the record shows that Mother could not discharge her
parental responsibilities due to her substance abuse. During her UPC stay,
Mother tested positive for methamphetamine, admitted to using illegal
drugs multiple times each day, and admitted that she was unemployed and
homeless. At the time of the termination hearing, Mother was incarcerated
after pleading guilty to armed robbery which occurred two months prior to
her UPC stay. These facts support the court’s finding that Mother’s chronic
drug abuse rendered her unable to discharge her parental responsibilities.

¶15          Reasonable evidence also supports the court’s findings that
Mother’s substance abuse will continue for a prolonged and indeterminate
period. A psychological assessment found that Mother had an “[i]mpaired
ability to make reasonable decisions” or “acknowledg[e the] presence of
substance abuse problems.” Throughout the pendency of the case, Mother



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                         CONSUELO V. v. DCS, et al.
                           Decision of the Court

consistently denied that she had a substance abuse problem and testified
that she would not benefit from additional substance abuse treatment. The
DCS case manager testified that Mother had not rectified her substance
abuse, lacked insight about why the case had commenced, and failed to
remedy the circumstances causing the children to be placed in foster care.

¶16           Although Mother testified that she had been clean during her
incarceration, had been taking substance abuse classes, and would not
engage in the use of drugs in the future, her repeated positive drug test
results, missed tests, and diluted tests over the 14-month-period after the
children were found dependent showed that she could not “sustain[]
sobriety in a noncustodial setting.” See Raymond F., 224 Ariz. at 379, ¶ 29.
Considering the circumstances at the time of the termination hearing, the
evidence fully supports the court’s determination that (1) Mother had “not
demonstrated the ability to remain sober outside a controlled
environment,” (2) “Mother’s testimony reflected her belief that she does not
have a serious substance abuse problem,” and (3) Mother “is prone to
relapse once she is released from jail and is no longer in a controlled
environment.”

¶17            The record further shows that DCS made diligent efforts to
provide Mother with reunification services, but Mother failed to make the
necessary sobriety changes to permit reunification. Although Mother
completed domestic violence counseling and parent-aide services, she did
not successfully complete individual counseling, testified that she did not
“learn anything [she did not] already kn[o]w” from her parenting classes,
and exhibited erratic and belligerent behavior with several case aides. The
court reasonably found that DCS had “attempted to provide Mother with
services, including testing and substance abuse treatment[,]” to no avail.

¶18           Accordingly, the superior court did not abuse its discretion in
terminating Mother’s parental rights under A.R.S. § 8–533(B)(3). Therefore,
we need not address Mother’s argument that the court erred in terminating
her parental rights based on 15 months out-of-home placement under
A.R.S. § 8-533(B)(8)(c). See Michael J., 196 Ariz. at 251, ¶ 27 (if appellate court
affirms one statutory basis, it need not address other statutory bases for
termination).

   III.    Best Interests

¶19          Mother contends the superior court erred by finding by a
preponderance of the evidence that severance was in the children’s best
interests. “Whether severance is in the child’s best interests is a question of



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                        CONSUELO V. v. DCS, et al.
                          Decision of the Court

fact for the juvenile court to determine,” and we draw all reasonable
inferences in favor of the superior court’s findings. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002). The best interests
consideration requires a court to assess “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 best interests requirement may be met if the child is
adoptable or the existing placement is meeting the child’s needs. Id.

¶20            The superior court did not abuse its discretion in finding that
severance would be in the best interests of the children because it would
further a plan of adoption, which would provide the children with safety,
stability, and permanency. The evidence also supported the court’s finding
that the children would suffer a detriment if Mother’s parental rights were
not terminated. Accordingly, the court did not err in finding that
terminating Mother’s parental rights was in the children’s best interests.

                               CONCLUSION

¶21          For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to her three children.




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




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