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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   JUSTIN M., STEPHANIE R., Appellants,

                                         v.

   DEPARTMENT OF CHILD SAFETY, T.H., K.H., J.H., J.M., Appellees.

                              No. 1 CA-JV 18-0120
                               FILED 10-9-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD529149
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Kathryn E. Harris
Counsel for Appellant Justin M.

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

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee, Department of Child Safety
                  JUSTIN M., STEPHANIE R. v. DCS, et al.
                          Decision of the Court




                       MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1           Stephanie R. (“Mother”) appeals the superior court’s order
terminating her parental rights to her four children. Justin M. (“Father”)
appeals the superior court’s order terminating his parental rights to J.M.,
the daughter he has in common with Mother. 1

                              BACKGROUND

¶2            From 2008 to 2015, Mother and Father lived in Tennessee with
the children: T.H., born in 2007, K.H., born in 2008, J.H., born in 2010, and
J.M., born in 2013. The family had an extensive history with the Tennessee
Department of Children’s Services (“Tennessee DCS”) based on allegations
ranging from physical abuse to “environmental neglect.” In early 2015,
Tennessee case workers recommended services for the parents, but they
refused to participate. That August, the family moved from Tennessee to
Arizona.

¶3           A week after moving, the family became homeless and
Mother attempted suicide. Mother suffered from anxiety and bipolar
disorder with depressive features. Because she could not meet the
children’s needs, Mother asked the Arizona Department of Child Safety
(the “Department”) to take custody of them. The Department did so and
filed dependency petitions.

¶4            In November 2015, the court found the children dependent
and set a case plan of family reunification. Over the next nine months the
parents participated in multiple services designed to help reunify the
family. Through her own provider, Mother also addressed her mental
health. The parents obtained jobs and secured an apartment with the help
of a housing subsidy provided by the Department. In early 2016, the parents
completed psychological evaluations with Dr. James Thal. Dr. Thal opined


1 The alleged fathers of the three other children are not parties to this appeal.



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                 JUSTIN M., STEPHANIE R. v. DCS, et al.
                         Decision of the Court

that the parents might be able to demonstrate minimally adequate
parenting skills in the near future but noted that the children would remain
“at risk for possible homelessness” if returned to the parents’ care. Because
the parents were complying with the case plan, however, the Department
referred the family for family reunification services in August 2016, and the
court returned the children to the parents’ physical custody.

¶5            Two months later, before completing reunification services,
the parents told the reunification team that they were moving to another
apartment. Contrary to their claim, Mother and Father were evicted for
failing to pay rent and moved into a motel. That same week, the parents
told the case manager they were on their way to a team decision-making
meeting with the Department, but they instead left for Tennessee with the
children. Shortly afterward, the Department located the family in Texas, the
court returned the children to Department custody in Arizona, and the
parents completed their move to Tennessee.

¶6             In Tennessee, the parents obtained employment, but Mother
did not obtain mental health services for several months. The parents lived
with relatives before moving into a house owned by Mother’s grandfather.
The home needed a lot of work; initially, it had no running water or
electricity. In February 2017, the Department initiated a placement
assessment under the Interstate Compact on the Placement of Children to
investigate the parents’ Tennessee home. Two months later, police arrested
the parents for assault, but eventually dropped the charges. The parents did
not inform the Department about their encounter with law enforcement.

¶7           Around July, the parents set up utilities for the home, and
Mother enrolled in mental health services. In August, although Tennessee
case workers had found Mother’s home to be minimally adequate for the
children, Tennessee DCS denied the placement assessment because of the
parents’ assault arrest, the family’s history with Tennessee DCS, and
Mother’s mental health issues.

¶8            The Arizona court changed the case plan to severance and
adoption, and the next month, the Department moved to terminate the
parents’ parental rights under the fifteen-month out-of-home placement
ground. Around this time, the parents reported that they were no longer in
a relationship, and Father moved to Virginia.2 The Department initiated a


2Though across state lines, Father’s Virginia residence was located close to
Mother’s Tennessee residence. For various reasons, including the proximity



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                  JUSTIN M., STEPHANIE R. v. DCS, et al.
                          Decision of the Court

placement assessment for Father’s Virginia residence. Ultimately, Virginia
Child Protective Services did not recommend placing the children with
Father because he failed to maintain contact with the Virginia caseworker
and stopped paying his rent.

¶9           The superior court held a contested severance hearing in
March 2018 and took the matter under advisement. The court then issued a
ruling terminating the parents’ rights on the ground alleged.

                                DISCUSSION

¶10            To terminate a parent’s parental rights the juvenile court must
find at least one statutory ground under Arizona Revised Statutes
(“A.R.S.”) § 8-533 by clear and convincing evidence, A.R.S. § 8-537(B), and
by a preponderance of evidence that termination is in the child’s best
interests, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). 3 We will not
reverse the juvenile court’s termination order “unless no reasonable
evidence supports its factual findings.” Jennifer S. v. Dep’t of Child Safety, 240
Ariz. 282, 287, ¶ 16 (App. 2016). We view the evidence and reasonable
inferences drawn from it in the light most favorable to sustaining the
juvenile court’s decision, and we will not reweigh the evidence. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).

I.     Fifteen Months in an Out-of-Home Placement

¶11           Under A.R.S. § 8-533(B)(8)(c), the superior court may
terminate parental rights if it finds that: (1) “the child has been in an out-of-
home placement for a cumulative total period of fifteen months or longer”;
(2) “the parent has been unable to remedy the circumstances” that caused
the out-of-home placement; and (3) “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.” A.R.S. § 8-533(B)(8)(c). Relevant
circumstances are those existing at the time of the severance that prevent a
parent from being able to appropriately provide for his or her children.
Jordan C., 223 Ariz. at 96, ¶ 31 n.14. The juvenile court must also find the
Department has made diligent efforts to provide appropriate reunification
services. A.R.S. § 8-533(B)(8). The fifteen-month ground does not focus on


of their homes, the Department case manager believed the parents
remained in a relationship.

3 We cite to the current version of all applicable statutes because no
revisions material to this decision have occurred.


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                 JUSTIN M., STEPHANIE R. v. DCS, et al.
                         Decision of the Court

a parent’s efforts to cure the circumstances, but rather his or her ultimate
ability to do so. See A.R.S. § 8-533(B)(8)(a), (c).

¶12            Mother and Father argue insufficient evidence supports two
of the court’s findings under the fifteen-month out-of-home placement
ground: (1) that they were unable to remedy the circumstances causing the
children to remain in an out-of-home placement; and (2) that there is a
substantial likelihood that they would not be capable of exercising proper
and effective parental care and control in the near future.

      A.     Mother

¶13          Mother argues the court’s findings are unsupported by the
evidence because she obtained housing and employment and engaged in
mental health treatment before the severance hearing. The superior court
considered this evidence but determined that other reasonable evidence in
the record supported severance under the fifteen-month ground. We agree.

¶14           The Department took custody of the children because the
parents were unemployed and homeless and Mother was not addressing
her mental illness. Although the parents participated in services in Arizona,
they were unable to maintain stable housing even with the assistance of a
Department subsidy. Indeed, while the parents awaited the subsidy
distribution, they did not pay rent or save their money for future rent
payments. Only two months after the children returned home, the subsidy
expired and the parents paid nothing further toward their rent and faced
eviction.

¶15            Mother did not dispute this at the severance hearing but
testified that she stopped paying rent because their landlord would not
make needed repairs and because she “was moving anyway so it wasn’t
something [she] needed to worry about.” Yet, she did not try any other
avenue to obtain the needed repairs before withholding rent. Nor did the
parents inform the Department of their situation or seek other housing
resources before being evicted. Instead, they misled the family reunification
team about obtaining another apartment and moved into a motel.
Moreover, the parents knew that the dependency remained active during
this time and that they could not remove the children from Arizona.
Nevertheless, they told the case manager they were on their way to a child
and family team meeting, but instead left the state with the children.

¶16         Mother also knew that failing to address her mental health
would prevent reunification, but she did not engage in mental health
treatment until approximately nine months after moving to Tennessee.


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                  JUSTIN M., STEPHANIE R. v. DCS, et al.
                          Decision of the Court

Additionally, she knew that failing to obtain safe and stable housing would
prevent reunification. Yet, despite being employed in Tennessee, Mother
was unable to obtain her own housing until about March 2017. The home
she chose required significant work. Several months later, the home was
found to be “minimally adequate”; however, Tennessee still denied
Mother’s Interstate Compact on the Placement of Children for other safety
concerns. Thus, reasonable evidence supports the court’s finding that,
despite receiving multiple services over two and a half years of Department
involvement, Mother was unable to remedy the circumstances causing the
children’s out-of-home placement.

¶17            Likewise, reasonable evidence supports the court’s finding
that a substantial likelihood existed that Mother would not be capable of
exercising proper and effective parental care and control in the near future.
By the time of the severance hearing, Mother had a 10-year pattern of
instability, echoing Dr. Thal’s April 2016 opinion that the children would
remain at risk for homelessness in her care. Accordingly, the case manager
told the parents that they needed to demonstrate at least a year of safe and
stable housing before the Department would recommend reunification. Yet,
only six months before the severance hearing, Mother still had not
demonstrated to Arizona or Tennessee officials that she could consistently
provide a safe and stable living environment for the children or otherwise
meet the children’s daily needs. While Mother argues the court should have
focused on the recent stability she achieved just before the severance
hearing, the superior court was in the best position to weigh the evidence.
See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)
(“The juvenile court, as the trier of fact in a termination proceeding, is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.”). On this record,
reasonable evidence supports the superior court’s findings.

       B.     Father

¶18           Similarly, the record contains reasonable evidence supporting
the superior court’s findings as to Father. Father similarly had an unstable
housing history until October 2017. At that time, Father reported that he
and Mother had separated; he then rented a home in Virginia for $50 per
month. Although Father initially maintained this home, he stopped paying
rent three months before the severance hearing. Moreover, he failed to keep
in touch with the Virginia Child Protective Services representative.

¶19          Father argues the case manager’s testimony regarding his
assessment’s pending placement denial in Virginia was based on hearsay.


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                  JUSTIN M., STEPHANIE R. v. DCS, et al.
                          Decision of the Court

At the hearing, the Department case manager testified that the Virginia
caseworker “indicated” she planned to deny Father’s assessment because
she “had not had contact with [F]ather in a number of weeks. She also
learned . . . through [the] housing authority for [F]ather that he had not paid
his rent” in three months “and was in the middle of the eviction process.”
Father concedes that he did not object to this testimony at the hearing, but
argues that “the juvenile court relied heavily on” this evidence in its
severance determination.4

¶20            However, reasonable evidence outside of the statements in
question supports the juvenile court’s findings. The Department case
manager testified that Father usually provided her with documentation
showing his rental payments. Yet, he had not provided her any proof of
those payments between January and March 2018. Given this evidence, the
superior court could have reasonably found that Father stopped paying his
rent in Virginia. See Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82-
83, ¶ 19 (App. 2005) (“A trial court has broad discretion in admitting or
excluding evidence, and we will not disturb its decision absent a clear abuse
of its discretion and resulting prejudice.”). Thus, like Mother, Father had
over 10 years of instability and faced another possible eviction just before
the severance hearing.

II.    Best Interests

¶21            The parents also challenge the court’s finding that severance
of their parental rights was in the children’s best interests. Severance is in
the best interests of the child “if either: (1) the child will benefit from
severance; or (2) the child will be harmed if severance is denied.” Alma S. v.
Dep’t of Child Safety, 799 Ariz. Adv. Rep. 27, ¶ 13 (Sept. 14, 2018). “At the
best-interests stage of the analysis, we can presume that the interests of the
parents and child diverge because the court has already found the existence
of one of the statutory grounds for termination by clear and convincing
evidence.” Id. (citation omitted).

¶22           The superior court found severance would benefit the
children in many ways, and reasonable evidence supports those findings.
Although the children lived in many placements, each placement provided
them with safe and stable housing and met their daily needs. Moreover, at
the time of the severance hearing, the children were living together with


4  Father also did not lodge a hearsay objection to Exhibit 20, the
Department’s March 2018 court report, which contains the same
statements.


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                  JUSTIN M., STEPHANIE R. v. DCS, et al.
                          Decision of the Court

care providers who were meeting their needs and wanted to adopt them.
The case manager testified that they were doing well there, but if that
placement could not adopt them for any reason, the children were
otherwise adoptable. 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, and
whether children are adoptable).

¶23           Citing this court’s opinion Alma S. v. Department of Child
Safety, Mother and Father argue that these findings are insufficient to
support the court’s best interests determination. 244 Ariz. 152 (App. 2017).
The Arizona Supreme Court vacated this court’s opinion in Alma S. and
affirmed the superior court’s finding that termination of mother’s parental
rights was in the children’s best interests. Alma S., 799 Ariz. Adv. Rep. at
¶ 21. The supreme court noted that factfinders must consider the totality of
the circumstances existing at the time of severance to determine the best
interests of the children and rejected “the proposition that adoptability
alone can never support a best-interests finding.” Id. at ¶ 14. The supreme
court articulated the correct standard, stating, “[w]hen a current placement
meets the child’s needs and the child’s prospective adoption is otherwise
legally possible and likely, a juvenile court may find that termination of
parental rights, so as to permit adoption, is in the child’s best interests.” Id.
(citing Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 12 (2016)). Here, the
superior court determined the children were in a placement that wanted to
adopt, and even if that placement could not adopt them, the children were
otherwise adoptable. Based on the supreme court’s recent holding in
Alma S. these findings are sufficient to support the superior court’s best
interests determination.

                               CONCLUSION

¶24          For the reasons stated, we affirm the superior court’s
termination order.




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


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