Asaunte W. v. Dcs, N.W.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ASAUNTE W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.W., Appellees.

No. 1 CA-JV 20-0159
FILED 12-1-2020

Appeal from the Superior Court in Maricopa County
No. JS519440

The Honorable Jennifer E. Green, Judge

AFFIRMED

COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 ASAUNTE W. v. DCS, N.W.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.

P E R K I N S, Judge:

¶1 Asaunte W. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to N.W. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother gave birth to N.W. in May 2018. Mother consumed
marijuana during pregnancy, and both tested positive for the drug at
N.W.’s birth. The Department of Child Safety (“DCS”) intervened by filing
an in-home dependency petition alleging that Mother was unable to parent
due to substance abuse and mental health concerns. DCS referred Mother
to Focused Family to receive individual, substance abuse, and domestic
violence counseling. DCS also provided in-home services and implemented
a family preservation team, hoping to keep N.W. with Mother. Mother
complied with the family preservation team’s goals by completing the
domestic violence and mental health portions but failing the sobriety
component.

¶3 Mother initially struggled to regularly participate in domestic
violence counseling. Although her counseling participation eventually
improved, Mother could not avoid domestic violence incidents. In
September 2018, police responded to an argument between Mother and her
boyfriend (“Boyfriend”). No injuries were reported. Three months later,
police returned under more troubling circumstances. During another
argument with Mother, Boyfriend hurled her cellphone towards the
ground, nearly hitting N.W. With a closed fist, Boyfriend also threw a
punch, striking Mother in the face and knocking her down. Boyfriend
turned his attention back to Mother’s cellphone, which he shattered. The
arguing continued and escalated. Mother told Boyfriend to leave; instead,
he grabbed a knife from a kitchen drawer. Sensing danger and screaming,
Mother bolted from the apartment. This incident left Mother with a swollen
lip, but she ultimately decided she did not want Boyfriend prosecuted for
the incident.

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Decision of the Court

¶4 Approximately one month later, in January 2019, police
responded to another domestic violence call involving Mother and
Boyfriend. The incident began as a loud argument but became physical.
Boyfriend pushed Mother in the chest, forcing her to the ground. Mother
responded by angrily swinging a closed fist at Boyfriend’s car, cracking the
windshield. Police consequently arrested Mother.

¶5 Mother had not disclosed her recent domestic violence
incidents when DCS held a team decision making meeting (“TDM”) on
January 28, 2019. Through this TDM, DCS sought to reengage Mother in
attending services and ultimately decided to keep N.W. with Mother. When
DCS received a hotline tip that Mother’s January 2019 domestic violence
incident led to her arrest, it held another TDM on February 15, 2019. At the
February TDM, DCS determined N.W. could not safely remain with
Mother, who left the TDM before it concluded.

¶6 DCS’s concerns for N.W.’s safety intensified while trying to
take custody of her. On the day before removal, DCS instructed Mother to
place N.W. in daycare. Instead, Mother directed DCS’s employee to a
smoke-filled apartment supposedly occupied by Mother’s friend, an
unapproved caretaker. N.W. was “just apparently there for the day” and
her diaper bag was “engrained with smoke.” The smoke worried DCS
because of N.W.’s troubles with chronic congestion and difficulty
breathing. Mother’s living arrangements also concerned DCS because
Boyfriend and N.W.’s maternal great grandmother (“Grandmother”) were
living in Mother’s apartment without DCS’s approval.

¶7 After removing N.W., DCS wanted Mother to reengage in
domestic violence counseling. Mother’s relationship with Boyfriend and
her previous relationship both involved domestic violence incidents,
suggesting an ongoing concern. DCS first referred Mother to Terros for
counseling, but Mother specifically requested to continue working with
Focused Family for such counseling. DCS accommodated that request.
Focused Family recommended Mother participate in twenty-six domestic
violence group sessions, but Mother completed only five. In October 2019,
DCS petitioned to terminate Mother’s parental rights on three grounds:
substance abuse (marijuana); six months’ time in care; and prior
termination.

¶8 The juvenile court held a one-day consolidated dependency
and termination hearing in February 2020. By that time, N.W. had been in
an out-of-home placement since February 2019. DCS called two case
managers, Eileen Grant and Chelsea Jarman to testify. Both case managers

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Decision of the Court

testified to Mother’s inconsistent participation in services provided by DCS.
Specifically, Mother failed to provide consistent drug testing or regularly
attend group counseling sessions. She also struggled to meaningfully
participate in parental skill sessions.

¶9 Mother also missed more than half of her supervised visits
with N.W. When Jarman tried to schedule supervised visits, Mother
sometimes failed to confirm visits or adequately communicate about
scheduling. For example, Jarman cancelled one visit in January 2020
because Mother was uncooperative. Mother’s supervised visit with N.W.
was in Tempe. Two hours before the scheduled visitation time, Mother
contacted Jarman to explain that she would be an hour late, despite already
being in Tempe. Mother no-showed for another visit with N.W. on the
following day.

¶10 Mother also testified. She acknowledged she was involved in
domestic violence altercations even after successfully completing domestic
violence courses in June or July 2018. She also testified to subsequently not
completing domestic violence classes or counseling after the altercations
with Boyfriend.

¶11 In April 2020, the juvenile court issued a twenty-two-page
minute entry terminating Mother’s rights to N.W. on two grounds alleged
in the petition. The juvenile court found severance to be in N.W.’s best
interest because she is in a placement that is both adoptive and meets all of
her needs. Mother timely appealed, challenging only the court’s ruling on
the statutory grounds.

DISCUSSION

¶12 We review the termination of parental rights for an abuse of
discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). This court will uphold the juvenile court’s findings of fact “if
supported by adequate evidence in the record.” Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App. 2007) (quoting State v. Smith, 123
Ariz. 243, 247 (1979)). “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.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶13 Before irrevocably severing parental rights, “due process
requires that the State support its allegations by at least clear and
convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 747-48 (1982).
“[S]uch a standard adequately conveys to the factfinder the level of

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Decision of the Court

subjective certainty about his factual conclusions necessary to satisfy due
process.” Id. at 769.

¶14 To terminate the parent-child relationship, the juvenile court
must find, by clear and convincing evidence, parental unfitness based on at
least one statutory ground under A.R.S. § 8-533(B). Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005).

¶15 The juvenile court may terminate parental rights based on six
months’ time in care if: (1) the child is under three years old, (2) the child
has been in an out-of-home placement for at least six months, (3) DCS “has
made a diligent effort to provide appropriate reunification services,” and
(4) “the parent has substantially neglected or willfully refused to remedy
the circumstances that cause the child to be in an out-of-home placement.”
A.R.S. § 8-533(B)(8)(b). The relevant circumstances are those existing at the
time of termination. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326,
330, ¶ 22 (App. 2007).

¶16 This termination ground focuses on a parent’s efforts to cure
the circumstances preventing reunification. Id. at 329, ¶ 20. Objectively
demonstrated, good faith efforts to comply with reunification services will
preclude termination on this basis. See Maricopa Cty. Juv. Action No. JS-
501568, 177 Ariz. 571, 576 (App. 1994). Substantial noncompliance during
the statutory time frame or making only “sporadic, aborted attempts to
remedy” the circumstances (even if the parent later begins recovery efforts
before the severance hearing) supports a finding of substantial neglect. See
id.

¶17 Mother does not dispute N.W.’s age, time spent in care, or the
adequacy of services. Instead, Mother argues DCS failed to prove she
“substantially neglected or willfully refused to remedy the circumstances”
leading to N.W.’s out-of-home placement. Specifically, Mother argues the
juvenile court’s domestic violence analysis was a ruse, hiding its true
concern for Mother’s chronic marijuana use. Mother claims to have
remedied the circumstances underlying N.W.’s removal because she ended
her relationship with Boyfriend. But the record supports the juvenile court’s
finding to the contrary. DCS’s reunification plan and services included
Mother attending twenty-six group counseling sessions to address
domestic violence concerns. Mother only attended five of those sessions.
The juvenile court noted that if Mother successfully completed DCS’s
services, “reunification likely would have occurred.” These services
included supervised visitation with N.W., and Mother missed more than
half of these visitation opportunities.

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 ASAUNTE W. v. DCS, N.W.
Decision of the Court

¶18 The record supports the juvenile court’s finding that Mother
substantially neglected or willfully refused to remedy the circumstances
necessitating N.W.’s out-of-home placement. Thus, it did not abuse its
discretion by terminating Mother’s parental rights based on six months’
time in care. Given this determination, we need not address the remaining
severance ground (termination of prior child relationship for the same
ground within two years) in the petition. See Michael J. v. Dep’t of Econ. Sec.,
196 Ariz. 246, 251, ¶ 27 (2000).

CONCLUSION

¶19 We affirm.

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

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