Jessyca P., Devon J. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSYCA P., DEVON J.,
Appellants,

v.

DEPARTMENT OF CHILD SAFETY, D.J., B.J., D.J.,
Appellees.

No. 1 CA-JV 21-0373
FILED 8-11-2022

Appeal from the Superior Court in Maricopa County
No. JD36450
The Honorable Michael J. Herrod, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant Jessyca P.

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Devon J.

Arizona Attorney General's Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
 JESSYCA P., DEVON J. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E, Judge:

¶1 Jessyca P. ("Mother") and Devon J. ("Father") appeal the
termination of their parental rights. For the following reasons, we affirm in
part and vacate in part.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father (collectively, "Parents") are the parents of
D.J., B.J., and D.R.J. In 2018, before B.J. and D.R.J. were born, the
Department of Child Safety ("DCS") received reports of Mother's substance
abuse and domestic violence between Parents and filed a dependency
petition as to D.J. The juvenile court adjudicated D.J. dependent and set a
case plan of family reunification.

¶3 In late 2018 and early 2019, Parents engaged in a variety of
reunification services and DCS began to transfer custody of D.J. back to
Parents. Mother then gave birth to B.J. Weeks later, B.J. developed a fever
and Mother took him to the hospital. While there, hospital staff observed
Mother acting strangely and suspected she was under the influence of
drugs. Mother admitted to DCS that she was taking two to three times the
recommended dose of her medications. DCS then filed a dependency
petition as to B.J. and the court adjudicated him dependent.

¶4 Parents engaged in family reunification services during late
2019 and 2020. However, Mother tested positive for substances such as
oxycodone and fentanyl on multiple occasions, and, during a case manager
visit, Parents got into an argument and Father threw a set of keys at Mother.
In the fall of 2020, Mother gave birth to D.R.J. and acted aggressively toward
hospital staff. Subsequently, D.R.J. was placed in the foster home caring for
D.J. and B.J., DCS filed a dependency petition, and the juvenile court
adjudicated D.R.J. dependent.

¶5 In early 2021, Mother tested positive for methamphetamine
and amphetamine and was admitted to the hospital with "depressed mood
irritability and suicidal thoughts along with polysubstance abuse." Also in

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early 2021, authorities arrested Mother for a 2020 incident of selling
methamphetamine to an undercover police officer. Later in 2021, DCS
moved to terminate Mother's and Father's parental rights to D.J., B.J., and
D.R.J. (collectively, the "Children"). DCS moved to terminate Mother's
parental rights on the substance-abuse ground under A.R.S. § 8-533(B)(3).
DCS also moved to terminate Mother's and Father's parental rights to D.J.
and B.J. on the fifteen month time-in-care ground and D.R.J. on the six and
nine month time-in-care grounds. DCS alleged that Mother "remains
unable to parent due to substance abuse" and Father's "co-dependence and
submissiveness towards Mother . . . threatens his children's well-being as a
result of her continued substance abuse."

¶6 In October 2021, the juvenile court held a hearing and later
terminated Mother's and Father's parental rights. The juvenile court found
DCS proved by clear and convincing evidence the substance-abuse ground
for termination of Mother's parental rights, the fifteen-month ground for
termination of Mother's and Father's parental rights to D.J. and B.J., and the
six- and nine-month grounds for termination of Mother's and Father's
parental rights to D.R.J. The court further found that termination of
parental rights was in the Children's best interests by a preponderance of
the evidence.

¶7 Mother and Father timely appealed and we have jurisdiction
under A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶8 A parent's right to custody and control of their children is
fundamental, but not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196
Ariz. 246, 248-49, ¶¶ 11-12 (2000). The juvenile court may terminate a
parent's rights if it finds "clear and convincing evidence demonstrates at
least one ground listed in § 8-533(B)" and "a preponderance of evidence
supports a finding that termination is in the child's best interests." Timothy
B. v. Dep't of Child Safety, 252 Ariz. 470, ---, ¶ 13 (2022); Ariz. R.P. Juv. Ct.
66(C). Because the juvenile 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), we review a termination order for an abuse of discretion and
will affirm the order unless "there is no reasonable evidence" to support the
court's findings, Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004) (citation omitted).

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 JESSYCA P., DEVON J. v. DCS, et al.
Decision of the Court

I. Termination of Mother's Parental Rights.

¶9 Mother argues that DCS failed to provide adequate
reunification services as Arizona law requires and failed to meet the
"reasonable accommodation requirements" of the Americans with
Disabilities Act ("ADA").1

¶10 To terminate parental rights based on the time-in-care and
substance-abuse grounds, DCS must show that it made diligent or
reasonable efforts to provide appropriate reunification services. A.R.S.
§ 8-533(B)(8) (diligent efforts for time-in-care grounds); Mary Lou C., 207
Ariz. at 49, ¶¶ 14-15 (reasonable efforts for substance-abuse ground). As a
public entity, DCS must also provide a disabled parent with reunification
services that comply with the ADA. Jessica P. v. Dep't of Child Safety, 251
Ariz. 34, 38, ¶ 14 (App. 2021). The ADA requires public entities to make
"reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of
disability." 28 C.F.R. § 35.130(b)(7)(i). Even if we assume Mother qualifies
as a person with a disability under the ADA, our analysis is the same
because Arizona law's requirement that DCS make diligent and reasonable
efforts to provide reunification services satisfies the ADA's reasonable
accommodation requirement. Jessica P., 251 Ariz. at 39, ¶ 15; Vanessa H. v.
Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 256, ¶ 20 (App. 2007); Mary Ellen C. v.
Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 33 (App. 1999); see also Canady
v. Prescott Canyon Ests. Homeowners Ass'n, 204 Ariz. 91, 95, ¶ 16 (App. 2002)
(as amended) (noting "reasonable accommodations vary depending on the
facts of each case" and "[w]hat is reasonable in a particular circumstance is
a fact-intensive, case-specific determination" (citations and internal
quotation marks omitted)). DCS meets its obligations by providing a parent
with "the time and opportunity to participate in programs designed to help
her become an effective parent." Maricopa Cnty. Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994).

¶11 DCS provided Mother with parent-aide services, visitation,
substance-abuse treatment, drug-testing services, two psychological
evaluations, psychiatric treatment, couples counseling, individual
counseling, group counseling, and a family-reunification team. The record

1 We address the juvenile court's order only to the extent it is
challenged in Mother's and Father's opening briefs. See Sholes v. Fernando, 228 Ariz. 455, 457, ¶ 1 n.1 (App. 2011); Schabel v. Deer Valley Unified Sch. Dist.
No. 97, 186 Ariz. 161, 167 (App. 1996) ("Issues not clearly raised and argued
in a party's appellate brief are waived.").

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indicates that DCS communicated with Mother's various medical providers
and supports the juvenile court's finding that neither of the physicians who
performed Mother's psychological evaluations "recommended any
accommodation or services that were not already being provided by DCS."
Cf. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 29 (App. 2009)
(finding that an agency fails to make sufficient family reunification efforts
when it neglects to offer the services recommended by its consulting
experts). The record also shows that Mother was able to access and self-
refer for services without assistance.

¶12 Mother argues that "[t]o accommodate [her], DCS [was]
required to provide enhanced or supplemental training or services" and
"modify the frequency and intensity of [her] counseling." Although Mother
testified that she requested more frequent and meaningful counseling, DCS
disputed this fact and Father testified that Mother never mentioned that she
would like more intensive counseling services and did only the bare
minimum in terms of engaging with services. Additionally, in February
2021 Mother declined services DCS offered through Terros Health and
stopped attending scheduled individual counseling sessions. See Mary
Ellen C., 193 Ariz. at 192, ¶ 34 (noting DCS is only obligated to provide
services that have "a reasonable prospect of success" and is not obligated
"to undertake rehabilitative measures that are futile").

¶13 Mother also argues that DCS was required to hold "staffings"
to identify how to accommodate her needs. However, the record shows
that DCS consulted with Mother's medical providers to develop an
appropriate case plan and met with Mother and discussed her service plan.
Accordingly, the juvenile court did not err in finding that DCS made
reasonable and diligent efforts to provide Mother reunification services in
compliance with applicable laws.

II. Termination of Father's Parental Rights.

¶14 Father argues that the juvenile court erred in terminating his
parental rights to D.J. and B.J. on the fifteen-month ground, contesting the
court's finding that he "had not remedied the circumstances that brought
the children into the State's care and was incapable of exercising proper and
effective parental control in the near future." Father also claims the court
erred in "finding that [he] had substantially neglected or willfully refused
to remedy the circumstances that gave rise to the out of home placement"
and, on that basis, terminating his parental rights to D.R.J. under the six-
and nine-month grounds.

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 JESSYCA P., DEVON J. v. DCS, et al.
Decision of the Court

¶15 The court found Father "failed to protect [the Children] by
[not] ending his relationship with Mother," noting that "[o]n multiple
occasions, Father declared that his relationship with Mother was ending,
but he either did not end the relationship, or soon returned to the
relationship on each occasion." The court acknowledged Father's testimony
that "[a]t time of trial, he was no longer in a relationship with Mother," but
noted he "had only ended the relationship just over a month prior to trial"
and found this "recent disengagement from Mother on the eve of
trial . . .'too little, too late.'" The court further noted that "Father's issues
with co-dependence make disengagement from Mother for long periods of
time very difficult" and the "[t]he strong likelihood is that if DCS was not
involved with this family, Mother and Father would return to their
relationship with the same unhealthy power dynamics, co-dependent
relationship, and continuing drug use by Mother."

¶16 As discussed below, evidence supports the juvenile court's
finding that, from 2018 to the time of the termination, Father had been
unable, for any substantial amount of time, to address DCS's concerns
regarding his relationship with Mother and domestic violence between the
two and would not be capable of exercising proper and effective parental
control in the near future. Thus, the court did not err in terminating Father's
rights to D.J. and B.J. under the fifteen-month ground. However, the record
does not show that Father substantially neglected or willfully refused to
remedy those circumstances as required to terminate Father's rights to
D.R.J. under the six- and nine-month grounds.

A. Failure to Remedy Circumstances.

¶17 The court terminated Father's parental rights to D.J. and B.J.
on the fifteen-month ground. Termination based on this ground requires
DCS to prove that a 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." A.R.S.
§ 8-533(B)(8). The 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." Marina P. v. Ariz. Dep't of Econ. Sec., 214
Ariz. 326, 330, ¶ 22 (App. 2007) (internal quotation marks and citation
omitted).

¶18 The physician who evaluated Father in 2019 noted Father's
struggle with co-dependence and unhealthy relationships and gave a
guarded prognosis regarding Father's ability to safely parent in the near

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future. Although Father testified at the termination hearing that he
separated from Mother, on various prior occasions Father had declared that
his relationship with Mother was over but either did not end the
relationship or reunited with Mother shortly after. For example, Father told
DCS that he was separating from Mother in February 2021 but soon
resumed the relationship. And after Mother was arrested in April 2021,
Father again indicated that he was leaving her but testified at the
termination hearing that he lived with Mother until July and did not
officially break up with her until the beginning of August.

¶19 Further, Mother was receiving in-patient treatment at the
time of the termination hearing and, when asked if she and Father were
planning on getting a new residence together, stated "I don't know. That's
up in the air right now." Mother also attended one of Father's individual
counseling sessions in July and, in August or September, Parents had an
altercation that resulted in the police being called. Mother testified that,
when the altercation occurred, she and Father were roommates but not
dating. Additionally, around two weeks before the termination hearing
DCS reported that Father "ha[d] not made any substantial progress," "ha[d]
been dishonest about his circumstances," and "continue[d] to demonstrate
a lack of healthy boundaries with [Mother]."

¶20 DCS also instructed Father to self-refer for parenting classes
designed to aid single parents and provided a service letter with
recommended classes. However, Father did not enroll in any of the
recommended courses and only participated in some additional classes in
the months right before the termination hearing that were not geared
toward single parenting or parenting children the same ages as the
Children. Moreover, although Father had been consistent with visitation in
the months immediately preceding the termination hearing, DCS reports
indicate that, before then, Father "ha[d] not been consistently attending
visitation" and "[d]uring virtual visits, he left the screen altogether and
essentially gave his visits to [Mother] instead." Father also testified that he
was living in a halfway house that did not accept children and would likely
be there for several months. Therefore, the juvenile court did not abuse its
discretion in finding that Father had not remedied the circumstances that
brought the Children into DCS's care and was incapable of exercising
proper and effective parental control in the near future.

B. Substantial Neglect or Willful Refusal.

¶21 The juvenile court terminated Father's parental rights to D.R.J.
on the six- and nine-month grounds. Termination under these grounds

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requires DCS to prove that a parent "has substantially neglected or wilfully
refused to remedy the circumstances that cause the child to be in an out-of-
home placement." A.R.S. § 8-533(B)(8)(a), (b). In contrast to the fifteen-
month ground, these grounds focus on the "level of the parent's effort to
cure the circumstances rather than the parent's success in actually doing
so." Marina P., 214 Ariz. at 329, ¶ 20. It is certainly true that termination
under these grounds is "not limited to those who have completely neglected
or willfully refused to remedy such circumstances" and where a parent
"makes only sporadic, aborted attempts to remedy" such circumstances, the
juvenile court "is well within its discretion in finding substantial neglect
and terminating parental rights on that basis." Maricopa Cnty. Juv. Action
No. JS-501568, 177 Ariz. 571, 576-77 (App. 1994) (finding that a mother's
successful efforts at recovery in the eight months before the termination
hearing were "too little, too late" in light of her disappearance for months at
a time and "only sporadic, aborted attempts to remedy her addiction" in the
relevant time period). However, termination on this ground is not
appropriate when a parent has made "appreciable, good faith efforts" to
comply with remedial programs outlined by DCS. Id. at 576.

¶22 The record indicates that Father generally made "appreciable,
good faith efforts" to participate in remedial programs suggested by DCS
to address DCS's concerns regarding his relationship with mother. JS-
501568, 177 Ariz. at 576. During 2019 and 2020, Father successfully
completed domestic-violence treatment, parent-aide services, parenting
classes, and individual counseling. In May 2021, DCS acknowledged in the
termination petition it filed as to D.J. and B.J. that, up to that point, Father
had "engag[ed] in all required services." At the termination hearing, DCS
also agreed that, before Spring 2021, "Father had engaged in and completed
a lot of the recommended services" and confirmed Father "had already
participated in recommended services up until [Spring 2021]."

¶23 Also in May 2021, Father requested a meeting with DCS to
discuss DCS's expectations and DCS provided him the updated service
letter that recommended Father participate in additional parenting classes
and individual counseling. Father did not enroll in the recommended
parenting classes but, in July, began attending parenting classes through
Family Involvement Center. By the time of the termination hearing, Father
had attended eleven classes and was reported to have shown significant
growth. Father also enrolled in individual counseling in July and
completed four sessions with Valle de Sol, after which the counselor noted
that "[n]o further counseling is needed." Beginning in early September,
Father had been actively engaged in counseling through Family
Involvement Center. Further, as previously noted, DCS records indicate

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Decision of the Court

that in the two months before the hearing, Father had been consistent in his
separate visitation and was "engaged during the visits."

¶24 Throughout the proceedings, Father acknowledged the threat
of Mother's substance abuse and domestic violence to the Children's safety.
Notably, in the weeks before the termination hearing, Father petitioned to
have Mother treated in-patient at a psychiatric hospital. And at the hearing,
Father testified that he was no longer living with Mother, had not seen her
in approximately two months, ended his relationship with her, and did not
have any plans to reconcile with her. These are "more than trivial or de
minim[is] efforts at remediation," see JS-501568, 177 Ariz. at 576 & n.1, and
show Father made at least some effort to cure the circumstances causing the
Children's out-of-home placement. Further, while DCS asserted "the
circumstance causing [D.R.J.'s] out-of-home placement was Father's
substantial neglect or wilful refusal to end his volatile relationship with
Mother," it did not present evidence that Father refused to separate from
Mother nor that DCS had instructed Father to do so. Thus, the record
demonstrates Father's efforts. Marina P., 214 Ariz. at 329, ¶ 20. Because the
evidence does not support a finding that Father substantially neglected or
willfully refused to remedy the circumstances causing D.R.J.'s out-of-home
placement, the juvenile court erred in terminating Father's parental rights
to D.R.J. on the six- and nine-month grounds.2

CONCLUSION

¶25 For the foregoing reasons, we affirm the termination of
Mother's parental rights to the Children and termination of Father's
parental rights to D.J. and B.J. However, we vacate the juvenile court's
order terminating Father's rights to D.R.J. and remand the case for further
proceedings consistent with this decision.

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

2 We express no opinion on whether termination of Father's parental
rights to D.R.J. would have been, or will in the future be, proper on another
ground. We only hold that termination based on the six- and nine-month
grounds was not justified on this record.

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