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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                  KEOSHA C.,
                                   Appellant,

                                        v.

             DEPARTMENT OF CHILD SAFETY, N.M., O.M.,
                           Appellees.

                             No. 1 CA-JV 16-0492
                               FILED 6-1-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD527171
                The Honorable Timothy J. Ryan, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
                        KEOSHA C. v. DCS, et al.
                         Decision of the Court


                     MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.1


J O H N S E N, Judge:

¶1           Keosha C. ("Mother") appeals the superior court's order
severing her parental rights to N.M. and O.M. For the following reasons,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            N.M. was born in August 2014.2 Eight months before, the
superior court had found Mother's three other children dependent.3 By the
time O.M. was born in August 2015, the Department of Child Safety ("DCS")
had moved both to terminate Mother's parental rights to her three oldest
children and to declare N.M. dependent. In October 2015, the court granted
DCS's motion to terminate Mother's parental rights to the three oldest
children. After Mother was arrested for drug possession and burglary a
month later, N.M. and O.M. were removed from her care.

¶3            DCS moved to terminate Mother's parental rights to N.M. and
O.M. in May 2016. After a one-day severance hearing in November 2016,
the court terminated Mother's parental rights on the grounds of six months'
time-in-care under Arizona Revised Statutes ("A.R.S.") section 8-
533(B)(8)(b) (2017) and prior termination of parental rights under A.R.S. §



1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      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).

3      That dependency commenced after one of Mother's other children,
an infant, accidentally suffocated in a bed shared by his grandmother and
"several" other children.



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                           KEOSHA C. v. DCS, et al.
                            Decision of the Court

8-533(B)(10).4 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2017),
12-2101 (2017) and Arizona Rule of Procedure for the Juvenile Court 103(A).

                                DISCUSSION

¶4             The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8-533(B). Michael J. 196 Ariz. at 249, ¶ 12. Additionally, the
court must find by a preponderance of the evidence that termination is in
the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

¶5            We review a termination order for an abuse of discretion and
will affirm unless no reasonable evidence supports the court's findings.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Because the superior court is in the best position to "weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings," we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002). On appeal, this court will affirm a severance
order unless it is clearly erroneous. Id.

¶6           As relevant here, parental rights may be terminated on time-
in-care grounds if:

       [t]he child who is under three years of age has been in an out-
       of-home placement for a cumulative total period of six
       months or longer pursuant to court order and the parent has
       substantially neglected or willfully refused to remedy the
       circumstances that cause the child to be in an out-of-home
       placement, including refusal to participate in reunification
       services offered by the department.

A.R.S. § 8-533(B)(8)(b).

¶7           Under the statute, the "circumstances that cause the child to
be in an out-of-home placement" are those that exist at the time of the




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


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                          KEOSHA C. v. DCS, et al.
                           Decision of the Court

severance, not at the time of the filing of the petition. Marina P. v. Ariz. Dep't
of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).

¶8            Mother argues the superior court erred in severing her
parental rights pursuant to A.R.S. § 8-533(B)(8)(b) because N.M. and O.M.
had not been in an out-of-home placement for a cumulative total period of
six months at the time DCS moved to terminate her parental rights. DCS
removed O.M. and N.M. from Mother's custody on November 10, 2015, and
moved to terminate her parental rights on May 12, 2016, just past the six-
month mark. Mother contends, however, that under A.R.S. § 8-533(E), the
children had been in an out-of-home placement just over four months at the
time DCS moved to terminate her rights.

¶9            "The applicability of a statute is an issue of law that we review
de novo." Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3 (App. 2007). Under
A.R.S. § 8-533(E), in considering the six-months' time-in-care ground, "the
court shall not consider the first sixty days of the initial out-of-home
placement pursuant to § 8-806 in the cumulative total period." But the two-
month "safe harbor" expressly applies only when the child originally has
come into DCS care through a voluntary placement. See A.R.S. § 8-806
(2017).

¶10            At no point in the severance hearing did Mother offer facts
that would allow the court to conclude that she had voluntarily placed
either child with DCS. Instead, the evidence was that DCS took the children
into care after Mother was arrested, and Mother does not argue to the
contrary on appeal. Accordingly, the period of out-of-home care began at
the time DCS removed each child from Mother's care on November 10,
2015, and the superior court did not err in finding each child had been in an
out-of-home placement for a cumulative total period of six months or
longer at the time that DCS moved to terminate Mother's parental rights.5

¶11          Alternatively, Mother argues there is no clear and convincing
evidence to support the court's finding that she substantially neglected or



5      The opening brief at page seven misleadingly paraphrases A.R.S. §
8-533(E) twice by omitting the statute's express reference to the voluntary
placement statute, A.R.S. § 8-806. We remind counsel of his on-going
ethical obligation of candor to the court and his obligation to refrain from
knowingly making a false statement of law to the court. See generally Ariz.
R. Sup. Ct. 42, ER 3.3(a)(1). The court looks unfavorably on such conduct
by counsel.


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                         KEOSHA C. v. DCS, et al.
                          Decision of the Court

willfully refused to remedy the circumstances that caused the children's
out-of-home placement.

¶12            To the contrary, reasonable evidence supports the superior
court's finding that Mother refused to participate in the reunification
services DCS offered. Whether a parent has substantially neglected or
willfully refused to remedy the circumstances that cause a child's out-of-
home placement focuses on the "level of the parent's efforts to cure the
circumstances rather than the parent's success in actually doing so." Marina
P., 214 Ariz. at 329, ¶ 20.

¶13           In November 2015, DCS referred Mother to Bayless
Behavioral Health. During her intake at Bayless, Mother reported she
"sometimes see[s] things that aren't there" and "has had conversations with
people that aren't there." Eventually, she was diagnosed with, among other
things, "Schizoaffective Disorder Bipolar Type" and "Posttraumatic Stress
Disorder." But Bayless discontinued her treatment after just a month
because she failed to consistently attend her therapy appointments.
Although Mother reengaged in treatment with Bayless early in February
2016, her therapist reported Mother often took "therapy lightly and did not
want to address DCS['s] . . . goals or [her] individually established goals."
As a result, Bayless discontinued her treatment again on March 24, 2016.

¶14           In October 2016, DCS referred Mother for another
psychological evaluation. There, she reported suffering from "intrusive
thoughts that are difficult to suppress or control," as well as "auditory
hallucinations." Despite the presence of these symptoms, however, Mother
told the psychologist she did not believe she needed individual counseling.
Based on this record, the court did not err in finding that Mother failed to
demonstrate the requisite effort to manage her mental illness.

¶15            Additionally, Mother failed to consistently attend parent-aide
services. She was assigned a parent aide in December 2015, which allowed
Mother to visit O.M. and N.M. twice a week. As a result of Mother's poor
attendance at her visitation sessions, however, those services were closed
out in March 2016. When parent-aide services were started up again in June
2016, Mother attended visits with N.M. and O.M. regularly, but failed to
consistently attend her one-on-one parenting-skills sessions. Indeed, in
August 2016, Mother attended only two of the five scheduled one-on-one
skills sessions, dozing off toward the end of one and ending the other early.

¶16          Based on this record, sufficient evidence supported the
superior court's finding that Mother substantially neglected or willfully



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                         KEOSHA C. v. DCS, et al.
                          Decision of the Court

refused to remedy the circumstances that caused the children's out-of-home
placement.

¶17            Lastly, Mother argues DCS did not make a diligent effort to
provide appropriate reunification services. When severance is sought on
time-in-care grounds, the superior court must find that the agency
responsible for the care of the child, in this case DCS, "has made a diligent
effort to provide appropriate reunification services." A.R.S. § 8-533(B)(8).
DCS provided Mother with the following services: Psychological
evaluation, parent aide, facilitated visitation, case management,
transportation and drug testing. Mother points to no facts or relevant legal
authority to support her argument that DCS made anything less than a
diligent effort to provide appropriate reunification services. Accordingly,
the superior court did not err in finding DCS complied with its statutory
obligation.6

                              CONCLUSION

¶18         For the foregoing reasons, we affirm the superior court's order
severing Mother's parental relationships with N.M. and O.M.7




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




6       We may affirm the order of termination on any one of the statutory
grounds on which the superior court ordered severance. Jesus M., 203 Ariz.
at 280, ¶ 3.

7      Mother does not argue that termination is not in the children's best
interests.


                                        6
