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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   BRITTNIE C., PROCORO R., Appellants,

                                         v.

         DEPARTMENT OF CHILD SAFETY, E.C., E.C., Appellees.

                              No. 1 CA-JV 17-0117
                                FILED 12-5-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD527512
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Office of the Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant Brittnie C.

Justine R. Jimmie, Attorney at Law, Phoenix
By Justine R. Jimmie
Counsel for Appellant Procoro R.

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
                 BRITTNIE C., PROCORO R. v. DCS, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1             Brittnie C. (“Mother”) and Procoro R. (“Father”) (collectively
“Parents”) challenge the superior court’s order terminating their parental
rights to their two children. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The Department of Child Safety (“DCS”) first provided
Parents with family preservation services in 2010 and then provided
services again in 2014, when they removed the children from Parents due
to domestic violence issues.

¶3             DCS filed a dependency petition in March 2014 alleging
neglect, mental health issues, and domestic violence against Mother and
neglect and domestic violence against Father. DCS referred Mother for a
psychological evaluation, domestic violence counseling, and substance
abuse testing. In July 2014, the court found the children to be dependent as
to Parents, and DCS continued to provide reunification services.

¶4           By February 2015, Mother was beginning dialectical
behavioral therapy (“DBT”), receiving counseling with an emphasis on
domestic violence, and she and Father were participating in family and
couples counseling through their local church. A month later, the superior
court ordered that the children be returned to the physical custody of
Parents.

¶5            At an August 2015 review hearing, the superior court ordered
an updated psychological evaluation of Mother to be completed by a
different provider. Two months later, DCS moved to dismiss the case based
on a psychological report stating that Mother could benefit from counseling
but that she would be more amenable to receiving the service on her own
and not through DCS. The children’s guardian ad litem objected, and the
court denied DCS’s motion to dismiss the dependency case.




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                  BRITTNIE C., PROCORO R. v. DCS, et al.
                          Decision of the Court

¶6            In January 2016, after two incidents in which the Mesa Police
Department were called, the superior court granted DCS’s motion to
remove the children from Parents’ physical custody based on concern for
the safety, health, and emotional well-being of the children. The following
month, the court ordered Parents to participate in a second parent aide
referral.

¶7           After the case plan was changed to severance and adoption,
DCS filed a petition to terminate the parent-child relationship on the
ground of out-of-home placement for a cumulative period of fifteen months
or longer. See Arizona Revised Statutes (“A.R.S.”) Section 8-533(B)(8)(c).
The court held a contested four-day termination trial in February 2017 and
subsequently terminated Parents’ parental rights.

¶8            The superior court found that DCS made reasonable, diligent
efforts to provide Parents with proper reunification services. The court
further found that despite all the services DCS provided, Parents had been
unable to remedy the circumstances that caused the children to be in an out-
of-home placement and that there was a substantial likelihood that they
would not be capable of exercising proper and effective parental care and
control in the near future. The court determined that DCS proved by a
preponderance of the evidence that termination was in the children’s best
interests. The children were adoptable, and the maternal grandparents,
with whom the children were placed, were willing to adopt.

¶9           Father and Mother each filed a timely notice of appeal. We
have jurisdiction 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

¶10           The fundamental right to parent one’s child is not absolute.
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior court may
terminate parental rights if it finds, “by clear and convincing evidence, at
least one of the statutory grounds set out in section 8–533,”and by a
preponderance of the evidence that termination is in the best interests of the
child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248–49, ¶ 12 (2000).
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). As the trier of fact, the superior court “is in the best position
to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004). Thus, we review an order terminating



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                  BRITTNIE C., PROCORO R. v. DCS, et al.
                          Decision of the Court

parental rights for an abuse of discretion and will not reverse unless “there
is no reasonable evidence to support” the order. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

  I.   Diligent Efforts to Reunify – Mother

¶11          Mother argues that the evidence was insufficient to support
the court’s finding that DCS made a diligent effort to provide her
appropriate reunification services because it did not provide a referral for
psychodynamic psychotherapy, and the referral for couples counseling was
untimely and therefore could not be successfully completed before the
termination hearing. Mother’s argument suggests she believes these
services might have revealed a change in her ability to parent.

¶12            To meet its burden of proof under A.R.S. § 8–533(B)(8)(c), DCS
was required to prove that (1) the children have been in an out-of-home
placement for at least fifteen months, (2) it has “made a diligent effort to
provide appropriate reunification services,” (3) “the parent has been unable
to remedy the circumstances” causing the out-of-home placement, and
(4) “there is a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near future.”

¶13           Mother does not challenge the existence of the statutory
ground for termination or that severance was in the children’s best
interests. She contends only that DCS failed to make reasonable efforts to
provide her with reunification services.

¶14             DCS makes a diligent effort to provide appropriate
reunification services when it gives the parent “the time and opportunity to
participate in programs designed to help her to become an effective
parent.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 14 (App.
2011) (citation omitted). “[DCS] is not required, however, to provide every
conceivable service or to ensure that a parent participates in each service it
offers.” Id. at ¶ 15 (citation omitted). DCS also need not duplicate a service
the parent has already received, at least when such services would clearly
prove futile. See Pima Cty. Severance Action No. S–2397, 161 Ariz. 574, 577
(App. 1989); Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34
(App. 1999) (recognizing the state must only “undertake measures with a
reasonable prospect of success”). Further, DCS need not undertake
rehabilitative measures indefinitely. See Maricopa Cty. Juvenile Action No.
JS–501568, 177 Ariz. 571, 577 (App. 1994).

¶15        Mother first argues that DCS failed to refer her for
psychodynamic psychotherapy. Over the course of nearly three years, DCS


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                 BRITTNIE C., PROCORO R. v. DCS, et al.
                         Decision of the Court

provided Mother with two parent aide referrals, three psychological
evaluations, five psychiatric evaluations, individual and couples
counseling, therapeutic and supervised visitation, family preservation team
services, and two family reunification teams.

¶16           Mother participated in her first psychological evaluation in
June 2014. The psychologist expressed concerns regarding Mother’s mental
health and opined that without psychological or psychiatric treatment,
Mother would not be able to minimally parent the children. Further, the
psychologist opined that Mother needed counseling and medication, and
that the children would be at risk of harm while in Mother’s care. Mother
refused to consider prescribed psychiatric medications and refused
counseling in October 2014.

¶17            Although the court returned the children to Parents in March
2015 despite Mother’s failure to complete DBT therapy, DCS remained
concerned about Mother’s mental health. In October 2015, Mother
completed a second psychological evaluation, and the psychologist opined
that if Mother did not successfully engage in counseling there would be
significant safety concerns regarding the children in the home. The
psychologist further opined that Mother would be more likely to
participate in DBT or some other form of therapy on her own without DCS’s
involvement. When DCS removed the children in December 2015, Mother
did self-refer for counseling but not for psychodynamic psychotherapy.

¶18            At the termination hearing, the case manager testified that the
psychologist’s notes indicated “psychodynamic psychotherapy may have a
better chance than DBT.” DCS did not consider the instruction for a
psychodynamic psychotherapy referral as a recommendation but as a
suggestion, and DCS did not, in fact, have a referral for such therapy.
Mother could have self-referred for psychodynamic psychotherapy service,
and given Mother’s failure to successfully complete DBT and her preference
for self-referred services, the case manager felt that minimal intervention
from DCS was optimal.

¶19            In January 2017, a third psychologist evaluated Mother and
reviewed her multiple counseling and DBT services. The psychologist
testified “the cadre of services provided were spot on. The whole range of
services, I thought, were spot on. They were really good services.” This
evidence is sufficient from which to conclude that DCS provided
appropriate service referrals and recommendations for Mother to self-refer.
And even though DCS must make reasonable efforts to provide




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                 BRITTNIE C., PROCORO R. v. DCS, et al.
                         Decision of the Court

reunification services, it is not required to provide every conceivable
service. See Christina G., 227 Ariz. at 235, ¶ 15.

¶20           Mother also argues DCS failed to provide couples counseling
in a timeframe sufficient to allow for successful completion. The record
shows that Parents did receive couples counseling through the family
preservation team and reunification team, and they maintained that there
were no domestic violence issues in their relationship. At the termination
hearing, Mother denied she and Father experienced any issues that they
needed to address. The DCS supervisor testified she discussed couples
counseling with Parents, but that Father stated when they participated in
the past all Mother did was yell at the therapist, and Parents informed the
DCS supervisor the service did not work for them.

¶21           Mother received a vast number of services and repeated
opportunities to successfully complete multiple services but failed to fully
participate and engage in the services. Her history of non-compliance and
lack of progress with services does not support her assertion that a referral
for psychodynamic psychotherapy and couples therapy would have
implemented the change necessary to allow her to safely and appropriately
parent the children. Thus, on this record, the superior court did not abuse
its discretion by finding that DCS made reasonable efforts to provide
Mother with reunification services.

 II.   Best Interests – Father

¶22           Father argues the court’s best interests finding was clearly
erroneous and contrary to the substantial evidence in the record because
“there exists a relationship between Father and [the] children” and Father
wants to maintain his parental relationship.

¶23           To prove that severance is in the child’s best interests, DCS
must show that the child would either benefit from severance or be harmed
by a continuation of the parental relationship. Mario G. v. Ariz. Dep’t of Econ.
Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011). It is sufficient that DCS show
severance would free a child for adoption, and that the child would benefit
from finding an adoptive placement. Maricopa Cty. Juvenile Action No. JS-
501904, 180 Ariz. 348, 352 (App. 1994). Additionally, DCS can establish that
termination is in a child’s best interests by presenting evidence showing
that an existing placement is meeting the needs of the child. Mary Lou C.,
207 Ariz. at 50, ¶ 19.

¶24           The superior court found that termination was in the
children’s best interests because Parents’ relationship was unstable and the


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                BRITTNIE C., PROCORO R. v. DCS, et al.
                        Decision of the Court

children have the right to a permanent and stable home that meets all their
needs. The court further found Mother’s continued emotional deregulation
and refusal of treatment together with Parents’ unaddressed relationship
issues put the children at significant risk of emotional and/or physical
harm.

¶25            At the time of termination, the children had lived with
maternal grandparents for three years. Although they visited with Parents,
Father distanced himself or removed himself from visits when Mother was
emotionally inappropriate. In February 2016, Father’s psychologist noted
that if the children were placed in his care, they “may be at risk of being
exposed to domestic violence issues as [he] has not demonstrated an ability
to consistently avoid exposing his children to domestic violence between
him and his wife through the current DCS case.” The social worker testified
that Parents’ marriage was unstable and that while therapeutic visits were
closed, it was because the referral ended, not because the goals were met.
Parents failed to meet the goal of ensuring the children’s emotional safety.

¶26           The court found that the children were adoptable and that the
maternal grandparents were the least restrictive placement. On this record,
sufficient evidence supports the court’s finding that termination is in the
children’s best interests.

                              CONCLUSION

¶27          Based on the foregoing, we affirm the superior court’s order
terminating Parents’ parental rights to their two children.




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




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