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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           GABRIELLA L., Appellant,

                                         v.

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

                              No. 1 CA-JV 17-0498
                                FILED 5-29-2018


            Appeal from the Superior Court in Maricopa County
                              No. JS 518475
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee, Department of Child Safety
                        GABRIELLA L. v. DCS et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.


C A M P B E L L, Judge:

¶1            Gabriella L. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children, J.L. and E.L. (collectively,
the “children”). She only challenges the juvenile court’s finding that
termination of her parental rights is in the children’s best interests and not
the statutory grounds for termination. For the reasons explained, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2           In 2014 J.L. (the “older son”) and E.L. (the “younger son”)
were removed from Mother’s home and adjudicated dependent (the “first
dependency”). DCS initiated the first dependency when police provided
information that the older son had sustained serious injuries from Mother’s
physical abuse, including bruising on his forearms, severe bruising on his
legs, and swollen hands.2 Mother pled guilty to child abuse, a class six
undesignated felony and domestic violence offense.3 The first dependency
was dismissed in December 2016, after Mother completed reunification
services.




       1 “[W]e view the evidence and reasonable inferences to be drawn
from it in the light most favorable to sustaining the court’s decision.” Jordan
C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).

       2School officials first reported the abuse to the Mesa police who then
contacted DCS. At the start of the first dependency the older son was six
years old and the younger son was eight months old. There was no
indication the younger son was physically abused in the first dependency.

       3In November 2014, the superior court suspended the imposition of
sentence, ordered Mother to serve three months in the county jail, and
ordered four years’ probation.



                                      2
                        GABRIELLA L. v. DCS et al.
                          Decision of the Court

¶3             Four months later, DCS filed a second dependency petition
and again removed the children from Mother’s home (the “current case”).
When DCS initiated dependency proceedings in the current case, the older
son was eight years old and the younger son was three years old. DCS
alleged Mother was unable to parent because of her mental health, alleging
she attempted to overdose on muscle relaxers but eventually called 911.
Subsequently, she was put in inpatient treatment at a mental health facility.
DCS also alleged neglect based on the inpatient treatment and substance
abuse. The next month, DCS petitioned to terminate Mother’s parental
rights. DCS alleged neglect and willful abuse. Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(2). DCS identified the 2014 abuse of the older son, and claimed
Mother used physical discipline on both children and attempted suicide
while the children were present and in her care. DCS also alleged prior
removal under A.R.S. § 8-533(B)(11).

¶4             The juvenile court held the contested dependency and
severance hearings in a single proceeding. Valerie Ducharme, the DCS
caseworker, testified Mother beat the older son with a stick so severely in
2014 that he was unable to sit or write. In contrast, Mother testified she only
“popped” the older son and denied he incurred any injuries. DCS became
more concerned in the current case when, after removal, the children
disclosed, and Mother admitted, that Mother was still using physical
punishment, which now extended to the younger son, consisting of
slapping the children on their hands. Mother acknowledged she learned
non-physical disciplinary techniques during the first dependency, but she
still believed physical discipline was appropriate. She admitted she would
“pop” the children’s hands. Mother claimed the “popp[ing]” was “not the
same as before.”

¶5            DCS was also concerned that Mother had stopped providing
the older son with medication for his schizoaffective disorder—a condition
for which the older son began receiving treatment and medication during
the first dependency. Ducharme testified that without medication the older
son experienced symptoms of paranoia, aggression, and rage. She further
testified the older son’s behavior improved when he was engaged in
services for his schizoaffective disorder during the first dependency.
Mother denied the older son had schizoaffective disorder, or any other
condition, and claimed DCS told her he had ADHD. She admitted that she
waited until the first dependency was dismissed to stop giving the older
son his medication, and never consulted a physician before discontinuing
the medication.




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                        GABRIELLA L. v. DCS et al.
                          Decision of the Court

¶6             Mother noticed no change after she stopped giving the older
son his medication and testified the older son’s behavior continued to be
“good.” She claimed the older son did not “act out” at home, and believed
that any behavioral issues were just him being “rebellious.” Ducharme
testified the older son’s foster father (who was also his foster father during
the first dependency) immediately noticed a change in the older son’s
behavior when he was returned to his care. Foster father relayed to DCS
that it took about a month to get the older son back into his medication
regimen and to get his behaviors under control again. Ducharme also
testified she had observed that the older son on medication was “more
mellow,” slept better, and had better focus, whereas without medication he
tended to “shut down.”

¶7             Mother also denied using cocaine in the current case, despite
testing positive for cocaine, and positive for alcohol, both of which
constituted a violation of her probation for the child abuse conviction.4
Mother admitted she missed her last three urinalysis tests. Despite evidence
to the contrary, Mother denied attempting to overdose or needing inpatient
treatment, testifying she called 911 because her “kidneys were hurting”
after taking three or four prescribed pills and antibiotics.5

¶8            The juvenile court adjudicated the children dependent. The
juvenile court then terminated Mother’s parental rights after finding DCS
had proven the ground of neglect and willful abuse and the ground of prior
dependency by clear and convincing evidence, and by a preponderance of
the evidence that termination of Mother’s parental rights was in the
children’s best interests.

                               DISCUSSION

¶9            Mother argues the juvenile court’s best interests findings are
“defective” because the court failed to consider “DCS’s plan for the children
to become adopted separately.”

¶10            To terminate the parent-child relationship the juvenile court
must find at least one statutory termination ground by clear and convincing
evidence, A.R.S. §§ 8-533(B), -537(B), and by a preponderance of the


       Mother also tested positive for marijuana, but produced a medical
       4

marijuana card at the contested hearing.

       5 Mother was previously diagnosed with depression and testified
she received medication for “sleep” and to “[re]gain her appetite.”


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                         GABRIELLA L. v. DCS et al.
                           Decision of the Court

evidence that termination is in the child’s best interests, Kent K. v. Bobby M.,
210 Ariz. 279, 288, ¶ 41 (2005). To show termination is in a child’s best
interests requires DCS to show either an affirmative benefit from
termination or a detriment by continuing the parent-child relationship.
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013).
“In a best interests inquiry . . . we can presume that the interests of the
parent and child diverge because the court has already found the existence
of one of the statutory grounds for termination by clear and convincing
evidence.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016). We will
affirm a termination order supported by reasonable evidence. Jennifer S. v.
Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016).

¶11           The juvenile court found the children’s foster homes provided
safe and nurturing environments. The younger son was thriving in his
temporary placement and was adoptable, and the older son had returned
to his prior adoptive placement and was receiving his prescribed
medications and therapies. See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224
Ariz. 373, 379, ¶ 30 (App. 2010) (affirmative benefits include availability of
adoptive placement, whether placement is meeting child’s needs, whether
children are adoptable). The court also found if Mother’s rights were not
terminated the children would continue to be exposed to substance abuse,
corporal punishment, and unsafe housing. Mother does not contest the
court’s findings. Nor does she contest the statutory grounds found by the
juvenile court, which include findings that her continued use of corporal
punishment, drugs, and her refusal to follow medical protocol for the older
son rendered her unable to discharge her parental responsibilities. See
Bennigno R., 233 Ariz. at 350, ¶ 23 (“[I]n most cases, the presence of a
statutory ground will have a negative effect on the children.”) (citation
omitted).

¶12             Instead, Mother cites Alma S. v. Dep’t of Child Safety, 778 Ariz.
Adv. Rep. 24, ¶ 37 (App. Nov. 14, 2017) (review granted May 8, 2018), for
the proposition that “permanent separation” of bonded sibling is generally
not in a child’s best interests. Mother misconstrues the holding in that case.
Alma S. held that adoptability and a placement meeting a child’s needs
were, alone, insufficient to support a finding that termination was in a
child’s best interests; the court then concluded the record in that case did
not support the juvenile court’s best interests findings in light of other
factors, like the parent’s exemplary completion of services, that termination
would serve to separate the bonded siblings, and that the parent was living
in a safe home. Id. at ¶¶ 33-38. Here, the juvenile court’s findings that
Mother had not, and would not, provide a safe home free from physical or
substance abuse, or one in which the older son would receive his prescribed


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                        GABRIELLA L. v. DCS et al.
                          Decision of the Court

medications and therapies, are not only unchallenged on appeal, but also
supported by the record. As such, Alma S. is not applicable in this setting.

¶13            Mother also relies on A.R.S. § 8-513(D) which requires DCS to
make reasonable efforts to place a child in an out-of-home or adoptive
placement with the child’s siblings or, if not possible, maintain frequent
visitation or ongoing contact unless a court determines such is contrary to
the child’s or sibling’s safety or well-being. Mother’s reliance is misplaced.
The testimony and evidence demonstrate that DCS complied with A.R.S.
§ 8-513(D). For instance, Ducharme testified that although the children had
a bond with each other, it was not possible to put them in the same out-of-
home placement. Nonetheless, the older son’s adoptive placement and the
younger son’s non-adoptive placement had facilitated contact between the
brothers. Ducharme expected the contact to continue because DCS would
try to find an adoptive placement for the younger son that would be
interested in maintaining contact between the children. Second, as
discussed, the separation of bonded siblings is only one factor that the
juvenile court may consider in rendering its best interests determination—
it is not dispositive.

                              CONCLUSION

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




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




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