In Re Term of Parental Rights as E.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 E.C.

No. 1 CA-JV 24-0022
FILED 05-30-2024

Appeal from the Superior Court in Maricopa County
No. JD531734, JS520593
The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant Mother

Arizona Attorney General’s Office, Tucson
By Ken Sanders
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.

C R U Z, Judge:
 IN RE TERM OF PARENTAL RIGHTS AS TO E.C.
Decision of the Court

¶1 Jessica L. (“Mother”) appeals from the superior court’s order
terminating her parental rights to her son, E.C.1 For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2020, Mother’s parental rights to E.C.’s sibling were
terminated based on chronic drug abuse and fifteen months’ time in care.
E.C. was born in February 2023. At birth, E.C. tested positive for codeine,
morphine, fentanyl, methamphetamine, marijuana, and other drugs. E.C.
suffered severe withdrawal symptoms and had to be treated in the NICU.
Upon release from the hospital, E.C. was placed in a special nursery for
continued care of his withdrawal symptoms. The nursery reported that
Mother did not consistently visit E.C. and, when she did so, appeared to be
under the influence of substances and had to be closely monitored by
nursery staff. Mother claimed to be receiving substance abuse treatment
but refused to sign a release form so the Department of Child Safety
(“DCS”) could confirm she was receiving treatment. Mother admitted
having used heroin throughout her entire pregnancy. When E.C.’s stay at
the nursery ended, DCS placed him in a foster home. In March 2023, the
superior court adjudicated E.C. dependent.

¶3 DCS provided Mother with reunification services, including
a referral to New Leaf Family Connections, substance-abuse assessment
and recommended treatment at TERROS, random drug testing, a case aide,
and supervised visitation. Mother attended less than half of her visits with
E.C., and when she did attend, she was frequently late and at times
appeared to be under the influence. By May 2023, Mother had stopped
communicating with DCS and did not respond to its phone calls, emails,
and letters. She was closed out of TERROS and New Leaf Family
Connections due to a lack of participation. Mother did not engage in drug
testing until late December 2023, a few weeks before the termination
adjudication hearing on January 12, 2024.

¶4 In September 2023, DCS moved to terminate Mother’s
parental rights to E.C. pursuant to Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(8)(b) (six months’ time in care). That month, DCS
suspended Mother’s visitation with E.C. because she was not submitting
drug tests or engaging in services. By November 2023, Mother was still not

1 The superior court also terminated the parental rights of E.C.’s
father; he is not a party to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO E.C.
Decision of the Court

communicating with DCS and had not asked to resume visitation with E.C.
DCS closed out a referral for the Nurturing Parenting Program based on
Mother’s lack of engagement with DCS and other service providers.

¶5 Mother provided four negative urinalysis tests between
December 27, 2023, and January 12, 2024. Mother refused DCS’s request for
a hair follicle test during this time period, however. Because Mother had
started engaging with DCS, the ongoing case manager submitted a new
referral for the Nurturing Parenting Program.

¶6 At the termination adjudication hearing, Mother testified that
she had received substance abuse counseling through an online program,
Anchors for Change, since December 2023, and had received inpatient
substance abuse treatment at Virtue Recovery Center for two days in
December but did not complete the program. Mother testified that she did
not engage with TERROS because she did not “connect” with that program
based on her previous experience there. Mother further testified that she
had completed “a few” parenting classes. Mother failed, however, to
provide DCS, her attorney, or the court with documentation of her
substance abuse treatment and parenting classes. Contrary to Mother’s
testimony that she had not been invited to attend E.C.’s doctor and therapy
visits, the DCS case manager testified that E.C.’s foster placement had done
so.

¶7 After the termination adjudication hearing, the superior court
terminated Mother’s parental rights to E.C. pursuant to A.R.S. § 8-
533(B)(8)(b). The court found that DCS had made diligent efforts to provide
reunification services and that termination of Mother’s parental rights was
in E.C.’s best interests. Mother timely appealed. We have jurisdiction
pursuant to A.R.S. § 8-235(A).

DISCUSSION

¶8 The superior court may terminate a parent-child relationship
if DCS proves by clear and convincing evidence at least one of the statutory
grounds set forth in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). The court must also find by a preponderance
of the evidence that termination is in the child’s best interests. Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Because the superior 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 will accept its factual
findings if supported by reasonable evidence and inferences and will affirm

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Decision of the Court

the order terminating parental rights unless it is clearly erroneous, Brionna
J. v. Dep’t of Child Safety, 255 Ariz. 471, 478-79, ¶¶ 30-31 (2023).

¶9 The superior court may terminate the parental rights of a
child under the age of three if DCS “has made a diligent effort to provide
appropriate reunification services,” and the child “has been in an out-of-
home placement for a cumulative total period of six months or longer
pursuant to court order and the parent has substantially neglected or
wilfully refused to remedy the circumstances that cause the child to be in
an out-of-home placement, including refusal to participate in reunification
services offered by [DCS].” A.R.S. § 8-533(B)(8)(b).

¶10 Mother raises one issue on appeal: whether DCS failed to
make diligent efforts to provide her with appropriate reunification services.
Mother does not dispute that termination was in E.C.’s best interests, that
he had been in an out-of-home placement for six months or longer, or that
she substantially neglected or wilfully refused to remedy the circumstances
causing E.C. to be in an out-of-home placement, so we do not address those
issues. See Michael J., 196 Ariz. at 249, ¶ 13; Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377, ¶ 15 n.2 (App. 2010).

¶11 DCS argues Mother waived her challenge to the adequacy of
its reunification efforts by not raising the issue before the termination
adjudication hearing. It cites Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz.
174 (App. 2014) as authority for its waiver argument. The Mother in
Shawanee S. did not raise the issue of insufficient services until her appeal.
Id. at 175, ¶ 1. Shawanee S. states that when a party fails to raise an issue
about DCS’s diligence in providing reunification services in the superior
court, they waive it. Id. at 179, ¶ 17. Here, as the State acknowledges,
Mother raised the issue during the termination adjudication hearing.
Because Mother raised an issue about services in the superior court, we
address her appeal on the merits.

¶12 DCS is obligated “to make all reasonable efforts to preserve
the family relationship.“ Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 186, ¶ 1 (App. 1999). Although DCS must provide a parent “with the
time and opportunity to participate in programs designed to help her
become an effective parent,” it “is not required to provide every conceivable
service or to ensure that a parent participates in each service it offers.”
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
”[W]hat constitutes a diligent effort [under A.R.S. § 8-533(B)(8)] will vary
by case based on the family’s unique circumstances . . . .” Donald W. v. Ariz.
Dep’t of Child Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019). “[A] diligent effort

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Decision of the Court

requires—at the least—DCS to identify the conditions causing the child’s
out-of-home placement, provide services that have a reasonable prospect of
success to remedy the circumstances as they arise throughout the time-in-care
period, maintain consistent contact with the parent, and make reasonable
efforts to assist the parent in areas where compliance proves difficult.” Id.
(emphasis in the original).

¶13 Mother argues that DCS should not have suspended her visits
with E.C. without a court order, should have provided her with the
Nurturing Parenting Program (a service that would have improved
Mother’s parenting skills), and should have invited Mother to E.C.’s doctor
and therapy appointments. As noted above, contrary to Mother’s
testimony, there was evidence that E.C.’s foster placement emailed Mother
inviting her to attend E.C.’s appointments. Mother did not ask DCS to
resume visits with E.C. after the visits stopped the same month the case
plan was changed to termination and adoption, nor did she raise any issue
about visitation until the termination adjudication hearing. The superior
court admonished DCS for stopping visits without a court order but still
found that DCS had made reasonable and diligent efforts to provide her
with appropriate reunification services.

¶14 Reasonable evidence supported the superior court’s finding.
DCS provided Mother with substance abuse assessment and counseling
through TERROS, a referral to New Leaf Family Connections, random drug
testing, and case aide services. These services were designed to address
Mother’s chronic abuse of substances, the circumstance which caused E.C.
to be in an out-of-home placement. For nearly a year, Mother substantially
failed to engage with DCS and refused to participate in substance abuse
treatment and testing. And when she finally engaged with DCS and
provided several negative urinalysis tests in the weeks before the trial, DCS
resubmitted the Nurturing Parenting Program referral. We find no error.

CONCLUSION

¶15 For the foregoing reasons, we affirm.

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