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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.B., W.S, Appellees.

No. 1 CA-JV 18-0113
FILED 11-20-18

Appeal from the Superior Court in Maricopa County
No. JD 529812
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, LLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee, Department of Child Safety
 JENNIFER S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 Jennifer S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children, J.B. and W.S. For the
following reasons, we affirm.

BACKGROUND

¶2 In 2012, Mother was four months pregnant with J.B. when the
Department of Child Safety (“DCS”) received a report that Mother tested
positive for methamphetamine. When J.B. was born, however, both she and
Mother tested negative for methamphetamine, so DCS did not remove her
from Mother’s care. In 2016, when W.S. was born, DCS received a report
from the hospital that both he and Mother tested positive for
methamphetamine. A DCS caseworker visited Mother in the hospital, and
she admitted having used methamphetamine in the beginning of her
pregnancy with W.S. and that she recently began using it again. DCS took
the children into temporary physical custody and placed them in foster
care.

¶3 DCS filed a dependency petition alleging Mother was unable
to parent due to neglect, substance abuse, and failure to provide the
children with the basic necessities of life. At the time the petition was filed,
Mother did not have stable housing or income. Due to a criminal conviction
in Michigan, Mother was required to register as a sex offender in Arizona
and was not allowed to have contact with children without consent from
her probation officer. She moved often, staying with friends, and she was
arrested twice for failing to provide her new address to her probation
officer. Following a hearing, the juvenile court found the children
dependent as to Mother and adopted a case plan of family reunification.

¶4 DCS offered services to Mother, including substance abuse
assessment and treatment. From March to June 2016, Mother tested
positive for methamphetamine in 28 out of 30 random drug tests. Mother
was incarcerated from July 2016 to January 2017 for a probation violation,

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and in the first three months after she was released, she tested positive for
methamphetamine 8 out of 11 times. Mother was referred to TERROS for
substance abuse treatment four times but was closed out early each time
due to noncompliance and incarceration.

¶5 In the early stages of the dependency, Mother’s probation
officer allowed supervised visitation with the children. However, due to
noncompliance with probation terms, Mother’s new probation officer
informed DCS in January 2017 that she would no longer allow Mother to
participate in supervised visits, so DCS suspended visitation. The last time
Mother had a visit with the children was in January 2017.

¶6 In April 2017, the juvenile court approved changing the case
plan to severance and adoption. DCS then moved to terminate Mother’s
parental rights due to neglect, chronic substance abuse, six months’ out-of-
home placement as to W.S. and nine months’ out-of-home placement as to
both children. Mother was released from jail in July 2017 and was taken
directly to Destiny Sober Living (“Destiny”), an in-patient treatment center.
She has not tested positive for methamphetamine since she entered Destiny.
In December 2017, DCS filed an amended motion to terminate, adding a
ground for fifteen months’ out-of-home placement.

¶7 Following a contested hearing, the court granted DCS’s
motion to terminate Mother’s rights on each of the grounds alleged and
found that termination was in the children’s best interests. This timely
appeal followed.

DISCUSSION

¶8 Before a court can terminate parental rights, it must find by
clear and convincing evidence at least one statutory ground articulated in
Arizona Revised Statutes (“A.R.S.”) section 8–533(B) and then find, by a
preponderance of the evidence, that termination is in the child’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 22 (2005). We will affirm
an order terminating parental rights if it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009). As the trier of fact, “[t]he juvenile court is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and make appropriate findings.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227
Ariz. 231, 234, ¶ 12 (App. 2011). We therefore view the evidence “in the
light most favorable to sustaining the court’s decision.” Jordan C., 223 Ariz.
at 93, ¶ 18 (citation omitted).

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A. Out-of-Home Placement

¶9 To terminate parental rights on the fifteen-month ground, a
court must find (1) the children have been in an out-of-home placement for
at least fifteen months, (2) DCS “made a diligent effort to provide
appropriate reunification services,” (3) the parent was “unable to remedy
the circumstances” necessitating the out-of-home placement, and (4) a
substantial likelihood existed that the parent would be incapable of
“exercising proper and effective parental care and control in the near
future.” A.R.S. § 8–533(B)(8)(c); e.g., Jordan C., 223 Ariz. at 96 n.14, ¶ 31.

¶10 Mother challenges the juvenile court’s finding that she has
been unable to remedy the circumstances that caused the children to be in
out-of-home placement. Mother emphasizes that at the time of the
termination hearing she had been sober for nine months. She further argues
she has made an appreciable, good-faith effort to comply with remedial
programs and thus cannot be found to have substantially neglected to
remedy the circumstances that caused the children to be in an out-of-home
placement, namely, her drug use. However, under the fifteen-month
ground, DCS had to prove Mother was unable to remedy the circumstances
that caused the children to be in an out-of-home placement, not that she
substantially neglected to remedy them.1 A.R.S. § 8–533(B)(8)(c) (emphasis
added). The fifteen-month ground focuses on the parent’s actual success in
remedying the circumstances, rather than the level of the parent’s effort in
doing so. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 20
(App. 2007) (discussing the standard in the context of the nine-month
ground). Mother admitted she has been using methamphetamine since
2009, including when she was pregnant with W.S. For the first year of the
dependency, though Mother participated in random drug testing, she
consistently tested positive for methamphetamine and was unable to
complete TERROS drug treatment.

1 Mother also argues the juvenile court erred in finding that DCS made
diligent efforts to provide her with “rehabilitation” services, which we
construe as an assertion that the reunification services DCS provided were
inadequate. But Mother does not suggest what additional services should
have been provided. Regardless, because she failed to object in the juvenile
court regarding the adequacy of reunification services provided to her, the
issue is waived. Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179,
¶ 16 (App. 2014) (holding that a parent who fails to object to the adequacy
of reunification services is precluded from raising the issue on appeal).

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¶11 Mother also challenges the juvenile court’s finding that there
was a substantial likelihood she would be incapable of exercising proper
and effective parental care in the near future. The court acknowledged
Mother had been sober since placement at Destiny but explained that she
“lives in a structured and supportive environment—untested as an
independent and responsible parent” and, at the time of the hearing, had
not proven that she could stay sober outside of such a controlled
environment. Notwithstanding Mother’s efforts, the court found a
“substantial likelihood that she will not be capable of exercising proper and
effective parental care and control in the near future due to substance abuse,
lack of housing, and financial instability.”

¶12 The record supports these findings. Mother testified she was
starting a new job the week after the termination hearing, but she still had
not established a stable residence or source of income. In fact, Mother
repeatedly asked her probation officer if she could return to live with her
boyfriend even though it would violate the terms of her probation.
Mother’s probation officer testified she was concerned Mother would go
back to living with her boyfriend upon leaving Destiny, because she
previously lived with him, and it was not “a healthy environment for her
to maintain sobriety.”

¶13 The probation officer also testified that Mother needed to
demonstrate that she could remain sober in society before she would
consider allowing Mother to have contact with the children. Similarly, the
DCS case manager testified that Mother would need to demonstrate six to
nine months of sustained sobriety in an uncontrolled environment before
their concerns would be alleviated about her chronic substance abuse. The
case manager opined that it was unlikely Mother would be capable of
exercising parental care in the future because of her instability. Thus,
reasonable evidence supports the court’s finding that termination was
warranted based on fifteen months’ out-of-home placement. Because we
affirm on this basis, we do not address the alternative grounds for
termination. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27
(2000).

B. Best Interests

¶14 Mother argues the court erred by finding termination of her
parental rights to be in the children’s best interests. “At the best-interests
stage of the analysis, we can presume that the interests of the parent and
child diverge because the court has already found the existence of one of
the statutory grounds by clear and convincing evidence.” Alma S. v. Dep’t

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of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018). Therefore, once the court finds
a parent to be unfit, the court’s focus shifts to the child’s interests as distinct
from those of the parent. Id.

¶15 Mother argues termination of her parental rights is not in the
children’s best interests because she needs her children as much as they
need her, she deserves another chance with her children, and she has been
working on her sobriety. She relies on this court’s opinion in Alma S. v.
Dep’t of Child Safety, 244 Ariz. 152 (App. 2017); however, that opinion has
been vacated by our supreme court, which explained that “courts must not
. . . subordinate the interests of the child to those of the parent once a
determination of unfitness has been made.” Alma S., 245 Ariz. at 151, ¶ 15.

¶16 Termination is in the child’s best interests if the child will
either benefit from severance or be harmed if severance is denied.
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016) (citation omitted).
“When a current placement meets the child’s needs and the child’s
prospective adoption is otherwise legally possible and likely, a juvenile
court may find that termination of parental rights, so as to permit adoption,
is in the child’s best interests.” Id. at ¶ 12. Here, the juvenile court found
the children’s respective placements to be stable, substance free, and
nurturing homes; the children are bonded to their placements; and they
have improved emotionally, developmentally, and medically.

¶17 The record supports these findings. Because J.B. seems to do
better in a placement where she is the only child, the children are in separate
homes. Their placements provide for regular contact between the children
and they plan to continue doing so. The DCS case manager testified the
children’s respective placements are willing to adopt them, and the children
will benefit from termination because it would “further the plan of
adoption and provide the children with permanency and stability in a
substance free and a stable home.” Therefore, the court did not err in
finding that termination of Mother’s rights is in the children’s best interests.

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Decision of the Court

CONCLUSION

¶18 The juvenile court’s order terminating Mother’s parental
rights to the children is affirmed.

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

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