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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              LINDA B., Appellant,

                                         v.

       DEPARTMENT OF CHILD SAFETY, L.J., A.B., E.P., Appellees.

                              No. 1 CA-JV 17-0361
                                FILED 4-26-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD509589
                 The Honorable Timothy J. Ryan, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
                           LINDA B. v. DCS, et al.
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.


B E E N E, Judge:

¶1             Linda B. (“Mother”) appeals the termination of her parental
rights to her three children, L.J., A.B., and E.P. (collectively “the children”).
For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In September 2011, the Department of Child Safety (“DCS”)
took L.J. and his sibling, D.W., into custody after D.W. tested positive for
marijuana at birth. DCS filed a dependency petition alleging Mother was
unable to parent due to substance abuse, neglect, and mental health issues.

¶3              During the pendency of the case, DCS provided Mother with
services, including substance abuse assessment and treatment, parent aide
services, urinalysis testing, transportation, supervised visitation,
psychological consultation and evaluation, and referrals to community
resources. In October 2012, Mother was diagnosed with Borderline
Intellectual Functioning and Cannabis Dependence in Partial Remission. In
April 2013, DCS moved to terminate Mother’s parental rights to L.J. and
D.W. based on mental deficiency and fifteen months out-of-home
placement. Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3) and -533(B)(8)(c). At the
time of filing, Mother had consented to adoption of D.W. Mother’s parental
rights as to D.W. were severed in July 2013.

¶4            Mother gave birth to A.B. in July 2013, and DCS immediately
took her into custody and filed a dependency petition. Over the next year,
Mother began engaging in services. She completed her parent aide services
and made progress in drug treatment. Both A.B. and L.J. were returned to
Mother’s physical custody in January 2015. The dependency actions as to
both A.B. and L.J. were dismissed in March 2015.

¶5             In June 2015, Mother relapsed with marijuana and admitted
that she was taking oxycodone for lower back pain. Mother’s home was
also not safe or appropriate for the children. DCS filed a dependency
petition as to A.B., L.J., and E.P. (born February 2015), alleging Mother was


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                            LINDA B. v. DCS, et al.
                             Decision of the Court

unable to parent due to substance abuse, neglect, mental health issues, prior
dependencies, and prior termination of parental rights.

¶6             DCS again provided Mother with services, including parent
aide, facilitated visitation, urinalysis testing, substance abuse assessment
and treatment, psychological and psychiatric evaluation, individual
counseling, case management, and transportation. The children were
found dependent as to Mother in February 2016. DCS filed a petition to
terminate the parent-child relationship on the grounds of fifteen months
time in care as to all three children and prior removal as to A.B. and L.J.
A.R.S. § 8-533(B)(8)(c) and -533(B)(11). The court held a three-day
termination hearing in April and June of 2017 and subsequently terminated
Mother’s parental rights.

¶7            The superior court found that DCS made reasonable, diligent
efforts to provide Mother with proper reunification services. The court
further found that despite all the services DCS provided, Mother had been
unable to remedy the circumstances that caused the children to be in an out-
of-home placement, specifically that Mother failed to obtain stable housing
and employment and adequate support mechanisms.                  The court
determined that there was a substantial likelihood that Mother would not
be capable of exercising proper and effective parental care and control in
the near future. The court also determined that DCS proved by a
preponderance of the evidence that termination was in the children’s best
interests.

¶8            Mother 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

   I.      Standard of Review

¶9             The right to parent one’s child is fundamental but 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); Kent K., 210 Ariz. at 284, ¶ 22.

¶10          “[W]e view the evidence and reasonable inferences to be
drawn from it in the light most favorable to sustaining the court’s decision,”


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                           LINDA B. v. DCS, et al.
                            Decision of the Court

Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009), and
we 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). 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).

    II.      Sufficient Evidence Supports Severance

¶11            Mother argues insufficient evidence supports the superior
court’s order severing her parental rights. To meet its burden under A.R.S.
§ 8-533(B)(8)(c), DCS was required to prove: (1) the children had been in an
out-of-home placement for at least fifteen months; (2) DCS has “made
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.”1

          A. Diligent Effort to Provide Appropriate Reunification Services

¶12          Mother argues DCS did not take the necessary steps to ensure
she was provided with a timely psychological evaluation and there was an
unreasonable delay between the psychological evaluation and individual
counseling.

¶13           DCS must provide a parent “with the time and opportunity
to participate in programs designed to help her become an effective
parent[.]” Maricopa Cty. Juvenile Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994). DCS must “undertake measures with a reasonable prospect of
success[,]” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34
(App. 1999), but it “is clearly not obligated to provide services which are
futile[,]” Pima Cty. Severance Action No. S-2397, 161 Ariz. 574, 577 (App.
1989).

¶14            At the termination hearing, DCS case manager Jamie Hayek
testified that DCS referred Mother for a psychological evaluation shortly
after the children were taken into care in June 2015, even though Mother

1     Mother does not challenge the superior court’s finding that A.B., L.J.,
and E.P. had been in out-of-home placements for at least fifteen months.
Thus, we do not address it.


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                          LINDA B. v. DCS, et al.
                           Decision of the Court

had not demonstrated 30 days of sobriety. Mother completed the
evaluation in October 2015. Hayek stated that it is common to experience a
three to four-month delay between the time that the referral for a
psychological evaluation is made and the time that it is carried out. The
case manager further testified that DCS asked Mother to self-refer for a
psychiatric evaluation, which she failed to do, and DCS eventually made a
referral for her. Mother completed the psychiatric evaluation well before
the termination hearing. Additionally, as the superior court noted, Mother
successfully completed individual counseling before the termination
hearing.

¶15           Mother fails to demonstrate how the delays in mental health
services prejudiced her. She does not suggest that DCS’s failures prevented
her from achieving her parenting goals, or that she was not provided
enough time to successfully complete the services offered. The record
shows that Mother was afforded ample time to participate in and complete
mental health services. In addition, she was provided with a parent aide,
case aide, supervised visits, transportation, and drug evaluation and
treatment. The record provides ample support for the superior court’s
finding that DCS made diligent efforts to provide Mother with appropriate
reunification services.

       B. Unable to Remedy Circumstances Causing Out-of-Home
          Placement

¶16            The superior court found that Mother was unable to remedy
the circumstances causing the children to be in out-of-home placement due
to her inability to obtain stable housing, employment and adequate support
mechanisms. Based on the record, we agree.

¶17            During the dependency, Mother lost her apartment. Mother
testified she chose not to renew her lease because she wanted to find a larger
place to live. However, Mother admitted that she was not offered a new
lease because E.P.’s father was living with her at the time and smoked
marijuana while residing with her.

¶18            At the time of the termination hearing, Mother resided with a
friend, Michelle Goree in a two-bedroom two-bathroom house. Goree
testified that Mother could reside with her until she found permanent
housing. However, DCS was unable to conduct a home study because
Goree was out of town for a month prior to the termination hearing. Mother
did not make any progress in securing permanent housing for herself.
Mother testified that it is difficult for her to find housing because of her



                                      5
                          LINDA B. v. DCS, et al.
                           Decision of the Court

felony conviction. This problem will be ongoing and may be exacerbated
as Mother owes $18,000 in restitution and was delinquent on her payments
at the time of the severance trial.

¶19          Mother collects approximately $700 per month in social
security disability benefits and claims this is enough to support the
children. Substantial evidence to the contrary exists in the record. Mother
was locked out of her apartment because she could not afford her monthly
rent payment and resorted to pawning property several times to pay her
rent. Mother failed to provide DCS with proof of her social security
payments and she attempted to solicit fraudulent paystubs on Facebook
during the pendency of the case.

¶20           Though Mother’s counselor testified she has learned some
support mechanisms to help with her behavioral issues, the record shows
that they are insufficient. The counselor stated that Mother displayed
unhealthy behavioral outbursts during treatment. After discontinuing
counseling, Mother expressed to a parent aide that she wanted to kill
herself. She self-referred to counseling at the request of DCS, but she did
not attend her scheduled session. Hayek testified that she is concerned
Mother will relapse again because Mother did not complete recovery
maintenance and still associates with E.P.’s father, who frequently uses
marijuana. Additionally, though Mother completed Terros, she missed
numerous sessions and drug tests. Mother did not successfully complete
parent aide because she consistently had issues communicating with E.P.’s
father during the sessions and the parent aide reported repeated concerns
about the cleanliness of Mother’s house and the safety of the house for the
children.

¶21            L.J. and E.P. have special needs and require extra care. Hayek
testified that she is unsure how Mother will arrange transportation to the
children’s doctor’s appointments as she has been dependent on DCS for
transportation. Hayek also testified Mother did not fully engage in L.J.’s
services because she either did not understand what was being discussed
or did not care to listen. Hayek stated that the children’s special needs
would require a great deal of parenting skill which will be difficult for
Mother to handle.

¶22          Reasonable evidence supports the superior court’s findings
that Mother failed to rectify the problems that caused the children to be
placed in care. The record also supports the court’s determination that
Mother lacks stable housing, stable employment and adequate support
mechanisms.


                                     6
                               LINDA B. v. DCS, et al.
                                Decision of the Court

           C. Substantial Likelihood Mother Will Not be Capable of
              Exercising Proper and Effective Parental Control in Near Future

¶23           Mother argues the superior court lacked sufficient evidence
to find that she will not be capable of exercising proper and effective
parental control in the near future. We disagree. The record shows that
Mother was not able to obtain appropriate housing in the months leading
up to the termination hearing, nor has she been able to demonstrate stable
employment throughout the pendency of the case. Though Mother made
some progress in counseling, the DCS case manager testified that Mother
did not complete recovery maintenance and is at risk for relapse.
Substantial evidence in the record supports the finding that Mother will not
be capable of exercising proper and effective parental control in the near
future.

¶24          Accordingly, the superior court did not abuse its discretion in
terminating Mother’s parental rights under A.R.S. § 8-533(B)(8)(c).2

    III.      Best Interests

¶25           Mother contends the superior court erred in finding that the
termination was in the children’s best interests. “Whether severance is in
the child’s best interests is a question of fact for the juvenile court to
determine[,]” and we draw all reasonable inferences in favor of the superior
court’s findings. Jesus M., 203 Ariz. at 282, ¶ 13.

¶26            “While the severance-ground inquiry focuses on the parent,
the best-interests inquiry primarily focuses on the child.” Alma S. v. Dep’t
of Child Safety, 778 Ariz. Adv. Rep. 24, ¶ 14 (App. Nov. 14, 2017). “Best
interests is a fact-specific, case-by-case determination in which the court
balances a parent’s interest in maintaining a relationship with his or her
child (diluted by the existence of a severance ground) against the child’s
interest in a safe and stable home life.” Id. A severance must either
affirmatively benefit the child or eliminate a detriment of the parental
relationship. Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 8 (App.
2016).



2       Because we find that the superior court did not err in terminating
Mother’s parental rights under A.R.S. § 8-533(B)(8)(c), we need not address
the court’s termination of Mother’s rights under § 8-533(B)(11). See Michael
J., 196 Ariz. at 251, ¶ 27 (if appellate court affirms one statutory basis, it need
not address other statutory bases for termination).


                                         7
                          LINDA B. v. DCS, et al.
                           Decision of the Court

¶27           The superior court’s finding that severance was in the
children’s best interests is supported by a preponderance of the evidence.
Hayek testified that A.B. and E.P. have been in stable adoptive placements
for most of their lives, and removal from these placements would be
traumatic. Further, Hayek testified that E.P. and L.J.’s foster care
placements are meeting their special needs. A.B. is currently placed with
her brother and has a strong bond with her foster family. The superior court
found that the children will benefit from the stability provided by severance
and would suffer a detriment if the unstable relationship with Mother was
to continue. Accordingly, the court did not err in finding that terminating
Mother’s parental rights was in the children’s best interests.

                              CONCLUSION

¶28          Accordingly, we affirm the superior court’s termination of
Mother’s parental rights to the children.




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




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