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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              FAITH P., Appellant,

                                         v.

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

                              No. 1 CA-JV 19-0164
                                FILED 2-13-2020


            Appeal from the Superior Court in Mohave County
                         No. B8015JD201604033
                The Honorable Rick A. Williams, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
                          FAITH P. v. DCS, L.E.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.


J O N E S, Judge:

¶1            Faith P. (Mother) appeals the juvenile court’s order
terminating her parental rights to L.E. (Child), arguing the Department of
Child Safety (DCS) failed to prove a statutory ground for severance by clear
and convincing evidence and that termination was in Child’s best interests
by a preponderance of the evidence. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2              In April 2016, DCS discovered one-month-old Child, four
other children, and five dogs inside an illegally inhabited motor home,
surrounded by drugs and drug paraphernalia, exposed electrical wiring,
and garbage.1 Mother and several other adults were located in a nearby
shed with heroin, methamphetamine, marijuana, and various drug
paraphernalia. Mother admitted she was homeless and unemployed and
did not regularly take Child’s half-brother to school or the doctor. A hair
follicle test returned positive for methamphetamine, and a urine sample
obtained a few weeks later tested positive for marijuana. DCS soon learned
that Mother had a history of depression, self-harm, and domestic violence.

¶3            DCS alleged Child was dependent as to Mother on the
grounds of neglect and substance abuse.2 Mother denied the allegations of
the petition but stipulated to a dependency. In May 2016, the juvenile court




1     “We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order.” Jennifer S. v. DCS,
240 Ariz. 282, 284, ¶ 1 n.2 (App. 2016) (citing Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)).

2      DCS alleged Child was dependent as to her father on the same
grounds. His parental rights were terminated in May 2019. He did not
challenge the order and is not a party to this appeal.


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                           FAITH P. v. DCS, L.E.
                           Decision of the Court

adjudicated Child dependent and adopted a case plan of family
reunification.

¶4           DCS immediately referred Mother for substance abuse testing
and treatment, parenting classes, parent aide services, a mental health
assessment, individual and domestic violence counseling, a psychiatric
evaluation, and supervised visitation. At first, Mother visited with Child
but did not actively engage in any other services. She tested positive for
methamphetamine in October 2016.

¶5            Shortly thereafter, Mother moved to a sober-living home,
engaged in substance abuse treatment, and provided urinalysis samples
that were free from all substances. She completed parenting classes,
attended visitation consistently, and worked toward improving her bond
with Child. She did not engage in individual or domestic violence
counseling but acknowledged how her substance abuse and domestic
violence had impacted Child and began devising a plan to ensure Child’s
safety in the future. By February 2017, Mother had secured employment
but was then asked to leave the sober-living home for violating its policies.
She discontinued counseling and began missing urinalysis tests,
purportedly because the services conflicted with her work schedule.
Mother submitted to a hair follicle test in May, which was negative for all
substances. DCS, encouraged by Mother’s insight and progress, began
transitioning Child back to Mother’s care.

¶6           By July 2017, however, Mother had relapsed on
methamphetamine and discontinued all services, visitation, and
communication with DCS. Over Mother’s objection, the juvenile court
changed the case plan to severance and adoption, and DCS moved to
terminate Mother’s parental rights on the grounds of neglect, substance
abuse, and length of time in out-of-home care.

¶7            After using drugs for four months, Mother returned to a
sober-living home and re-engaged in substance abuse testing. Although
she did not test positive for any substances, Mother missed more than a
quarter of the scheduled tests between October 2017 and October 2018. She
did not reengage in counseling or substance abuse treatment. She
discontinued all visitation with Child between March and June 2018, then
attended only half the scheduled visits thereafter, and declined DCS’s offer
for make-up and extended visits. Mother’s seventh visitation referral was
closed in September 2018 when she failed to attend a visit for thirty straight
days. After each gap in visitation, Child regressed, acting out after each
visit and becoming fearful and “clingy” toward her placement.


                                      3
                          FAITH P. v. DCS, L.E.
                          Decision of the Court

¶8            In November 2018, DCS recognized Mother’s repeated
“pattern of success followed by significant relapse and disconnect from the
case and [Child]” and renewed its request to terminate Mother’s parental
rights. Mother’s participation in services again improved, but she did not
engage in any behavioral health treatment or domestic violence counseling
or complete the recommended psychiatric evaluation.

¶9           In March 2019, the juvenile court suspended visitation
between Mother and Child after Child was diagnosed with severe
adjustment disorder occasioned by Mother’s repeated introduction to and
departure from her life. By the time of the severance trial the following
month, Child had been in out-of-home care for three years.

¶10           At trial, the DCS case manager from April 2016 to December
2018 testified that although Mother had completed parenting classes and
substance abuse treatment and secured appropriate housing and
employment, she had not made the behavioral changes necessary to parent
Child. Specifically, Mother had not proved she could identify the triggers
for her substance abuse or maintain sobriety for an extended period; nor
had she demonstrated a bond with or committed herself to caring for Child.
Moreover, Mother’s dedication to the case plan fluctuated with the
immediacy of severance, increasing when termination seemed imminent
and tapering off when the exigency was lifted. According to that case
manager, these circumstances suggested that Mother had not actually
changed her behavior and was unlikely to do so in the near future.

¶11           The DCS case manager from December 2018 to April 2019
noted that Child had suffered and continued to suffer from the lack of
consistency, which was most notable in Child’s fearful reaction to Mother’s
repeated disengagement and reintroduction. She also testified Child was
adoptable and currently in an adoptive placement who was bonded to her
and meeting her needs. Both case managers believed Child would benefit
from severance because it would provide her an opportunity to be adopted
into a permanent, safe, stable home.

¶12           Mother testified she had been sober since October 2017 and
was willing and able to parent Child. Mother also stated Child was bonded
to her and acted out after visits only because she missed Mother.

¶13           After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence that it had made
diligent efforts to provide appropriate reunification services, and that
termination of Mother’s parental rights was warranted because: (1) Mother



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                             FAITH P. v. DCS, L.E.
                             Decision of the Court

had been unable to remedy the circumstances causing Child to be in an out-
of-home placement for longer than the statutory period and was unlikely
to become an effective parent in the near future, see Ariz. Rev. Stat. (A.R.S.)
§ 8-533(B)(8)(c);3 and (2) Mother had neglected Child, see A.R.S. § 8-
533(B)(2). The court also found severance was in Child’s best interests and
entered an order terminating Mother’s parental rights. Mother timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).

                                 DISCUSSION

I.     DCS Proved a Statutory Ground for Severance by Clear and
       Convincing Evidence.

¶14           Pursuant to A.R.S. § 8-533(B)(8)(c), a parent’s rights may be
terminated if the juvenile court finds by clear and convincing evidence that:

       The child has been in an out-of-home placement for a
       cumulative total period of fifteen months or longer . . . the
       parent has been unable to remedy the circumstances that
       cause the child to be in an out-of-home placement and 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.

See also Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 17 (App. 2009).
DCS must also prove that it made diligent efforts to provide appropriate
reunification services to the parent. A.R.S. § 8-533(B)(8); Jordan C., 223 Ariz.
at 93, ¶ 17.

¶15            Mother argues the juvenile court erred in finding DCS made
diligent efforts to preserve her relationship with Child. Generally, we defer
to the finding of diligence so long as it is supported by substantial evidence.
See Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81-82, ¶ 13 (App.
2005) (citations omitted). Moreover, where “[DCS] has been ordered to
provide specific services in furtherance of the case plan, and the court finds
that [DCS] has made reasonable efforts to provide such services . . . a parent
who does not object in the juvenile court is precluded from challenging that
finding on appeal.” Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179, ¶ 16 (App. 2014) (citing State v. Georgeoff, 163 Ariz. 434, 437 (1990), and

3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                         5
                            FAITH P. v. DCS, L.E.
                            Decision of the Court

In re Eddie O., 227 Ariz. 99, 103, ¶ 14 n.2 (App. 2011)). The rationale for this
rule is sound:

       It serves no one to wait to bring such concerns to light for the
       first time on appeal, when months have passed since the
       severance order was entered. Instead, a parent’s failure to
       assert legitimate complaints in the juvenile court about the
       adequacy of services needlessly injects uncertainty and
       potential delay into the proceedings, when important rights
       and interests are at stake and timeliness is critical.

Id. at 178-79, ¶ 16; see also Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994)
(“Because a trial court and opposing counsel should be afforded the
opportunity to correct any asserted defects before error may be raised on
appeal, absent extraordinary circumstances, errors not raised in the trial
court cannot be raised on appeal.”) (citing Van Dever v. Sears, Roebuck & Co.,
129 Ariz. 150, 151-52 (1981), and United States v. Globe Corp., 113 Ariz. 44, 51
(1976)).

¶16           On appeal, Mother contends she could have benefited from
continued substance abuse treatment, mental health services, domestic
violence counseling, and a bonding assessment. However, Mother never
requested additional services or challenged the adequacy of the services
DCS provided. On this record, Mother waived her opportunity to challenge
the diligence of DCS’s reunification efforts by failing to raise the issue with
the juvenile court.

¶17            Mother also suggests that insufficient evidence supports the
juvenile court’s finding that she had been unable to remedy the
circumstances causing Child to be in out-of-home care. We will affirm
“unless we must say as a matter of law that no one could reasonably find
the evidence to be clear and convincing.” Denise R. v. Ariz. Dep’t of Econ.
Sec., 221 Ariz. 92, 94, ¶ 7 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz.
1, 9 (1955)).

¶18           The record here contains sufficient evidence to support the
juvenile court’s findings that, after more than three years of separation from
Child, Mother did not prioritize Child’s needs or recognize how her
inconsistent behavior has caused Child to suffer. These findings support
the court’s conclusion that Mother had not remedied the circumstances




                                       6
                            FAITH P. v. DCS, L.E.
                            Decision of the Court

necessitating out-of-home care and was unlikely to do so in the near future.
Accordingly, we find no abuse of discretion.4

II.    DCS Proved Termination was in Child’s Best Interests by a
       Preponderance of the Evidence.

¶19            Mother argues the juvenile court erred in concluding
termination of Mother’s parental rights was in Child’s best interests because
Mother testified she loves Child and was able to parent her. We review the
best-interests finding for an abuse of discretion and will reverse only if “as
a matter of law, no reasonable fact-finder could have found the evidence
satisfied the applicable burden of proof.” See Titus S. v. DCS, 244 Ariz. 365,
369, ¶ 15 (App. 2018) (citing Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 47, ¶ 8 (App. 2004), and Denise R., 221 Ariz. at 94-95, ¶¶ 9-10).

¶20            The existence of a bond between the parent and child,
“although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. DCS, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (citing
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)).
Instead, the juvenile court must consider all relevant facts and determine,
on a case-by-case basis, whether a preponderance of the evidence supports
a finding that the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004) (citations
omitted); accord Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). The
benefit to the child, particularly where she has been out of the parent’s care
for a lengthy period, is the opportunity for permanency in lieu of remaining
indefinitely in a situation where “[a] parent[] maintain[s] parental rights
but refuse[s] to assume parental responsibilities.” Oscar O., 209 Ariz. at 337,
¶ 16 (quoting JS-6520, 157 Ariz. at 243, and citing James S. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998)) (emphasis omitted). “At this
stage, the child’s interest in obtaining a loving, stable home, or at the very
least avoiding a potentially harmful relationship with a parent, deserves at
least as much weight as that accorded the interest of the unfit parent in




4      Because we find clear and convincing evidence supports the
termination order under A.R.S. § 8-533(B)(8)(c), we need not and do not
address the juvenile court’s neglect finding. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) (citing Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000), and Maricopa Cty. Juv. Action No.
JS-6520, 157 Ariz. 238, 242 (App. 1988)).


                                       7
                           FAITH P. v. DCS, L.E.
                           Decision of the Court

maintaining parental rights.” Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37
(2005).

¶21             The record reflects Child had been in out-of-home care for
more than three years, during which time Mother failed to show she could
be an appropriate parent. Meanwhile, the Child was adoptable and in an
adoptive placement that was meeting her needs. Moreover, the lack of
permanency caused Child noticeable distress.            The juvenile court
determined Child would benefit from the opportunity to be adopted into a
permanent, stable, and safe home, and it was not in Child’s best interests to
further delay permanency. The finding that severance was in Child’s best
interests is supported by the record, and we find no abuse of discretion. See
Alma S. v. DCS, 245 Ariz. 146, 152, ¶ 21 (2018) (affirming the best-interests
finding where the record indicated “[the] children were excelling in their
out-of-home placements, the foster parents were planning to adopt the
children, . . . the children [we]re otherwise adoptable” and “[the parent]
was still inclined to endanger the children despite her rehabilitative
progress”).

                              CONCLUSION

¶22           The juvenile court’s order terminating Mother’s parental
rights to Child is affirmed.




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




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