In Re Term of Parental Rights as to L.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO L.C.

No. 1 CA-JV 23-0191
FILED 05-07-2024

Appeal from the Superior Court in Maricopa County
JD534783
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Mother

Arizona Attorney General’s Office, Mesa
By Ingeet P. Pandya
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.

K I L E Y, Judge:
 IN RE TERM OF PARENTAL RIGHTS AS TO L.C.
Decision of the Court

¶1 Sydney C. (“Mother”) appeals the termination of her parental
rights to her daughter L.C., asserting that the juvenile court abused its
discretion by determining that termination was in L.C.’s best interests. For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Viewed in the requisite “light most favorable to sustaining the
juvenile court’s order,” In re O.M., 254 Ariz. 543, 544, ¶ 3 (App. 2023)
(citation omitted), the evidence shows that Mother used illegal substances
during her pregnancy, testing positive for methamphetamine during a
prenatal medical appointment in September 2021. L.C. was born
substance-exposed in March 2022. During the ensuing investigation by the
Department of Child Safety (“DCS”), Mother admitted to using
amphetamine and fentanyl while pregnant.

¶3 After her birth, L.C. was treated in the neonatal intensive care
unit while “experiencing withdrawals due to the fentanyl.” Hospital staff
reported a concern that Mother was “vaping or using substances” while
visiting L.C. because she would enter a room and “close the door” and “all
curtains,” after which staff would notice “an odor in the room.”

¶4 DCS removed L.C. from Mother’s care due to her admitted
substance abuse as well as concerns about her mental health and ability to
provide for the child’s needs. Unable to establish the child’s paternity, DCS
temporarily placed L.C. with her maternal grandmother (“Grandmother”)
upon her release from the hospital in April 2022.

¶5 DCS filed a dependency petition alleging that L.C. was
dependent as to both Mother and her unidentified father. At a hearing in
June 2022, Mother entered a no contest plea, and the court found L.C.
dependent.

¶6 Mother underwent drug testing at DCS’s request in May 2022;
the results were positive for methamphetamine, fentanyl, amphetamine,
and methadone. Mother refused to undergo further testing as requested.

¶7 DCS offered Mother supervised visits with L.C. and referred
her to both a parenting skills program and substance abuse and mental
health counseling through Terros. Although Mother initially participated
in the parenting skills program, she did not successfully complete it. Mother
declined DCS’s offer of services through Terros because she self-referred
for treatment through Valle del Sol, but she did not successfully complete
the Valle del Sol program. Mother participated in a “detox” program

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through Copper Springs East in October 2022, and she subsequently self-
referred to Lifewell Behavioral Health for substance abuse treatment. After
only two weeks, however, Mother left Lifewell against medical advice and
without completing any of her goals.

¶8 In January 2023, Mother submitted to a substance abuse test
for the first time since the previous May; the results were positive for
methamphetamine, fentanyl, and methadone. After Mother expressed
interest in substance abuse and mental health counseling, DCS re-referred
her to Terros. After completing an intake assessment with Terros in May
2023, Mother exhibited only “minimal engagement,” with multiple “no
shows” and “missed” sessions.

¶9 In February 2023, DCS changed the case plan to severance and
adoption due to Mother’s continued substance abuse. DCS then moved to
terminate Mother’s parental rights in March 2023, alleging substance abuse
and out-of-home placement grounds. See A.R.S. § 8-533(B)(3), (8)(a)-(b).
Mother contested the termination allegations but failed to appear at the
termination hearing in May 2023. The court found that Mother waived her
right to contest the termination and terminated her parental rights.

¶10 Mother then moved to set aside the termination order,
explaining that she failed to appear at the May 2023 hearing because she
was attending a Terros class at the time. Finding that Mother established
good cause for her non-appearance, the court granted Mother’s motion to
set aside the termination order.

¶11 At a subsequent termination hearing in September 2023, the
DCS case manager testified that Mother disclosed that she became addicted
to prescription painkillers as a result of medical treatment she received as a
teenager, started using methamphetamine in her early 20’s, and began
using fentanyl three years ago. The case manager testified that DCS offered
Mother various services to address her substance abuse, but Mother failed
to consistently engage in those services. She testified that when Mother
began participating in substance abuse testing after the court set aside the
original termination order, she tested positive for fentanyl and
methamphetamine on August 23, 2023. After that, the case manager
acknowledged, Mother had no positive test results (although some of
Mother’s test specimens were diluted). Nonetheless, the case manager
testified, Mother’s “recent sobriety . . . is not enough to demonstrate that
[she] will be able to maintain that sobriety . . . moving forward.”

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¶12 The DCS case manager further testified that supervised
visitation was the only service in which Mother consistently engaged.
Mother had trouble staying awake during some visits with L.C., however,
giving cause for further doubt about her ability to safely parent the child.

¶13 The case manager testified that Grandmother was “taking
care of all [L.C.’s] needs” and wanted to adopt the child. Adoption would
be in L.C.’s best interests, she stated, because it would provide her
permanency in a loving home.

¶14 Mother acknowledged her inconsistent participation in
services but testified that, at the time, she “wasn’t in the right head frame”
due to “extenuating circumstances.” She testified that she now is sober and
has a job, a place to live, and a car, so she “can do all the things that [the
court is] asking [her] to do.” All she wanted, she testified, was “more time”
to demonstrate her stability and sobriety. She further testified that she
asked Grandmother to be L.C.’s guardian but that Grandmother “said no
to that.”

¶15 On cross-examination, Mother admitted that she had been
sober for less than one month and further admitted that this relatively brief
period was her “longest period of sobriety” in the last five years.

¶16 After the hearing, the court issued a ruling in which it found
grounds to terminate Mother’s parental rights under A.R.S. § 8-533(B)(3),
determining that due to her “history of chronic abuse of dangerous drugs,”
she was “unable to discharge parental responsibilities” or “provid[e] safe
and reliable care” for L.C. The court also found grounds to terminate under
A.R.S. § 8-533(B)(8)(a)-(b), determining that despite DCS’s “diligent efforts
to provide appropriate reunification services,” Mother failed to consistently
participate in services and “substantially neglected or willfully refused to
remedy the circumstances that gave rise to [L.C.’s] out-of-home
placement.”

¶17 The court terminated Mother’s rights to L.C., finding that
termination was in the child’s best interests because she resided with
Grandmother, with whom she was “well-bonded,” Grandmother was
meeting her “physical, emotional, and medical needs,” and her proposed
adoption by Grandmother would provide her with “permanency and
stability.”

¶18 Mother timely appealed. We have jurisdiction under A.R.S.
§ 8-235(A).

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DISCUSSION

¶19 A parent’s right to custody and control of her child, though
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶¶ 11-12 (2000). The parental relationship may be terminated if the
juvenile court finds, by clear and convincing evidence, at least one statutory
ground for termination under A.R.S. § 8-533(B) and further finds, by a
preponderance of the evidence, that termination is in the child’s best
interests. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474, ¶ 13 (2022).

¶20 Mother argues that the court abused its discretion in
terminating her parental rights to L.C. She does not challenge the court’s
finding of statutory grounds for termination, so we need not address those
issues. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14 n.6
(App. 2011) (noting that failure to develop argument in opening brief
results in waiver). Instead, she argues that the court abused its discretion
by “failing to consider the totality of the circumstances” in finding that
termination was in L.C.’s best interests.

¶21 In determining a child’s best interests, the court “must
consider the totality of the circumstances existing at the time of the
severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148,
¶ 1 (2018). “[A] determination of the child’s best interest must include a
finding as to how the child would benefit from a severance or be harmed
by the continuation of the relationship.” Maricopa Cnty. Juv. Action No.
JS-500274, 167 Ariz. 1, 5 (1990). The court may find that a child would
benefit from termination if an adoption plan is in place or, at a minimum,
that adoption is likely, Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370-71,
¶ 22 (App. 2018), and that the child “would benefit psychologically from
the stability an adoption would provide,” Maricopa Cnty. Juv. Action No.
JS-501904, 180 Ariz. 348, 352 (App. 1994). Conversely, the court may find
that a child would be harmed by the continuation of the parent-child
relationship if it would cause “negative and psychologically harmful
interactions” with the child, Demetrius L. v. Joshlynn F., 239 Ariz. 1, 6, ¶ 21
(2016), or if a parent’s unfitness remains unremedied and “detrimentally
affects the child’s well-being,” Pima Cnty. Juv. Action No. S-2460, 162 Ariz.
156, 158 (App. 1989). The “foremost concern” in the best interests
determination is always the “child’s interest in stability and security.” Jessie
D. v. Dep’t of Child Safety, 251 Ariz. 574, 583, ¶ 27 (2021) (citation omitted).

¶22 We “accept the juvenile court’s findings of fact if reasonable
evidence and inferences support them,” Demetrius L., 239 Ariz. at 3, ¶ 9, and

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we will affirm the court’s legal conclusions unless clearly erroneous,
Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 480-81, ¶ 31 (2023). We will
reverse a termination order only for “an abuse of discretion or clearly
erroneous findings of fact, or upon a determination that, as a matter of law,
no reasonable fact-finder could have found the evidence satisfied the
applicable burden of proof.” Titus S., 244 Ariz. at 369, ¶ 15 (citation
omitted).

¶23 Asserting that she is “a first-time mother” who simply
wanted “additional time to demonstrate sobriety since obtaining stability
in housing, employment, and transportation,” Mother argues that “the
record did not demonstrate that the juvenile court took into consideration”
all relevant evidence in determining L.C.’s best interests. In its best interests
analysis, she asserts, the court failed to consider her “rehabilitation efforts,”
her “consistent and positive visits with L.C.,” and her “bond with L.C.”

¶24 The record does not support Mother’s contention that the
court failed to consider her rehabilitation efforts. On the contrary, the
court’s termination order discusses Mother’s substance abuse and
treatment history at considerable length. After reviewing this history in
detail, the court found that Mother “has been using illegal substances since
she was approximately 15 years old,” DCS referred her for substance abuse
services on numerous occasions, and Mother “failed to consistently
participate in” those services. Although the court acknowledged (and
commended) Mother’s recent efforts to maintain sobriety, the court found
that Mother had not demonstrated an ability to “maintain sobriety for any
prolonged period.” Far from disregarding Mother’s rehabilitation efforts,
the court closely reviewed them and found them insufficient to outweigh
L.C.’s interest in the stability that termination and adoption would provide
her. Such a determination was within the court’s discretion. See Jennifer S.
v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016) (“[A] child’s
interests in permanency must prevail over a parent’s uncertain battle with
drugs.”); see also Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994) (noting that parent’s “successful efforts at rehabilitation in the
eight months prior to the severance hearing[,] . . . while commendable, were
‘too little, too late’”).

¶25 Nor does the record support Mother’s claim that the court
disregarded her love for L.C. in determining L.C.’s best interests. The court
expressly recognized that Mother regularly exercised her supervised
parenting time but further found that she did not engage in the other
services DCS offered to her “to address the behaviors” that created “an
unsafe environment” for the child in the first place. The court found, in

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other words, that Mother’s demonstrated commitment to spending time
with L.C. did not outweigh her demonstrated lack of commitment to
participating in the services necessary to appropriately parent her. Mother’s
argument that the court gave insufficient weight to her positive relationship
with L.C. amounts to a request that we reweigh the evidence, which we will
not do. See Jennifer S., 240 Ariz. at 286-87, ¶ 16 (noting that because the
juvenile court is “in the best position to weigh the evidence,” “we will not
reweigh the evidence in our review”) (citation omitted).

¶26 Finally, Mother argues that the court failed to “acknowledge
the harmful environment [she] experienced as a child in Grandmother’s
home, including physical and emotional abuse by Grandmother.” Citing
non-specific “concern[s]” about “Grandmother’s mental health,” Mother
suggests that termination risks exposing L.C. to mistreatment at
Grandmother’s hands.

¶27 But Mother never testified at the hearing that Grandmother
was abusive. Although she stated that she and Grandmother “always had
a really rocky relationship” and “have a hard time communicating,” she
admitted that she and Grandmother “play equal parts in that,” explaining
that they “both are kind of hotheaded.” At no point in her testimony did
she express fear for L.C.’s safety in Grandmother’s care. On the contrary,
she expressly agreed that L.C. “is safe with her” and even testified that she
had asked Grandmother to serve as L.C.’s guardian. By failing to present
her arguments about Grandmother’s purportedly abusive nature at trial,
Mother has waived them on appeal. See In re MH2009-002120, 225 Ariz. 284,
287, ¶ 7 (App. 2010) (holding that a party that does not “bring [a] concern
to the attention of opposing counsel or the superior court” has “waived the
right to present it” on appeal).

¶28 Noting that she requested a guardianship for L.C. “to provide
her additional time to engage in services,” Mother complains that “DCS
ended its guardianship inquiry based on [Grandmother’s] unwillingness to
be L.C.’s guardian and wanting to adopt L.C.” To the extent this statement
is intended to suggest that the court should have ordered a guardianship in
lieu of termination, Mother is not entitled to relief. She never requested a
guardianship under A.R.S. § 8-872, and so the juvenile court lacked
authority to order one. See Ariz. Dep’t of Econ. Sec. v. Stanford, 234 Ariz. 477,
480, ¶ 14 (App. 2014) (holding that juvenile court cannot initiate a
guardianship “in the absence of a statutorily compliant motion by a party
to the proceedings”).

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¶29 The DCS case manager testified that termination would be in
L.C.’s best interests because it would free her for adoption by Grandmother.
See Maricopa Cnty. Juv. Action No. JS-8441, 175 Ariz. 463, 469 (App. 1993)
(“The benefit of severance to the child is that which the legislature intended:
freedom to be adopted into a stable and nurturing home.”). Because record
evidence supports the juvenile court’s determination that termination
would be in L.C.’s best interests, the court did not abuse its discretion in
terminating Mother’s parental rights. See Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

CONCLUSION

¶30 We affirm.

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

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