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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENISSE P., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.P., L.P., J.P., N.P., Appellees.

No. 1 CA-JV 18-0297
FILED 2-14-2019

Appeal from the Superior Court in Maricopa County
No. JD30083
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Maricopa County Office of the Legal Defender, Phoenix
By Jamie R. Heller
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.
 DENISSE P. v. DCS, et al.
Decision of the Court

W I N T H R O P, Judge:

¶1 Denisse P. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.P., L.P., J.P., and N.P. (“the children”)
on the statutory grounds of chronic substance abuse and prior removal.1
See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (11). Mother challenges the
sufficiency of the evidence supporting the grounds for severance, including
whether the Department of Child Safety (“DCS”) made diligent efforts to
reunify Mother and the children, and the court’s finding that severance was
in the children’s best interests. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 Mother is the biological mother of the children, who were
born in 2003 (A.P.), 2004 (L.P.), 2005 (J.P.), and 2014 (N.P.).3 Mother has a
history of substance abuse—including methamphetamine and opiates
(heroin, codeine, and morphine).

¶3 When N.P. was born in February 2014, her meconium tested
positive for methamphetamine and opiates, both of which Mother admitted
using during her pregnancy. DCS offered Mother various services and did
not remove the children from the home at that time.

¶4 In September 2014, police arrested N.P.’s father after he
physically abused and injured L.P. When Mother did not take the children
to court to testify against N.P.’s father on March 4, 2015, a warrant was
issued for her arrest for failure to obey a subpoena.4

¶5 Mother was arrested the next day, and DCS took custody of
the children. Although the charges against Mother were later dropped, the

1 The parental rights of the children’s fathers, who are not parties to
this appeal, have also been terminated.

2 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).

3 Mother is also the biological mother of C.R., who was not subject to
the dependency and is not a party to this appeal.

4 N.P.’s father was nonetheless convicted of child abuse and sentenced
to eight years’ imprisonment.

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children remained out of Mother’s care. DCS filed a dependency petition
and offered Mother supervised visitation, transportation, drug testing,
substance-abuse assessment and treatment, parent-aide services, parenting
classes, individual counseling with a domestic violence component, family
counseling, and a psychological evaluation.

¶6 In May 2015, Mother began intensive outpatient substance-
abuse treatment, which required her to attend classes three times a week.
In June 2015, she underwent the psychological evaluation and was
diagnosed with unspecified personality disorder with borderline and
antisocial traits, adjustment disorder with anxiety, and moderate opioid-
use disorder.

¶7 In January 2016, the court found the children dependent as to
Mother and adopted a case plan of family reunification with a concurrent
case plan of severance and adoption as to N.P. Throughout the
dependency, Mother struggled with sobriety, and relapsed on
methamphetamine in January and February 2016.

¶8 Nonetheless, by April 2017, Mother had successfully
completed the substance-abuse program, having progressed through the
intensive outpatient program, the standard outpatient program, and the
recovery maintenance program. In addition, Mother had by that time
participated in and completed urinalysis testing, parent-aide services,
individual counseling, parenting classes, and the psychological evaluation,
and she continued to participate in family counseling and in-home services
with a family preservation team. The children were transitioned back to
Mother by May 2017, and in July 2017, the court dismissed the dependency.

¶9 In September 2017, however, Mother overdosed on heroin,
and two weeks after that, she overdosed again, passing out on the floor.
During Mother’s second overdose, L.P., J.P., N.P., and C.R.—who at that
time was less than two months old—were in the home, and Mother was
their sole caregiver. J.P. flagged down an apartment security guard, who
performed CPR on Mother. After police officers arrived, they contacted
DCS, which removed the children. C.R. was placed with her father, and the
other children were initially placed with their maternal grandmother
(“Grandmother”). Shortly thereafter, DCS transferred N.P. to her previous
placement after Grandmother indicated she was unable to meet the child’s
needs.

¶10 In early October 2017, DCS filed a dependency petition for
A.P., L.P., J.P., and N.P., alleging Mother could not parent the children due

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to substance abuse and mental health issues. That same month, the juvenile
court found the children dependent as to Mother for the second time,
adopting a case plan of family reunification. DCS again offered Mother
services, referring her for substance-abuse assessment and treatment, drug
testing, individual counseling, and transportation. DCS also planned to
offer psychological and psychiatric evaluations and parent-aide services
after Mother had demonstrated thirty days of sobriety. Additionally, DCS
offered supervised parenting time with the children; however, the three
older children refused to visit with Mother. Consequently, between
October and December 2017, Mother visited only N.P. and, even then, when
N.P. returned from visits, she would engage in negative behaviors.

¶11 Also in October 2017, Mother’s urinalysis sample was positive
for morphine, although a hair-follicle sample taken the same day was
negative. From October 4 to November 12, Mother missed eight drug tests,
then tested positive for heroin, codeine, and morphine on November 13.
She submitted to no other drug tests between October and December, and
her daily call-in rate to determine if she had to test was only twenty-six
percent. She admittedly continued to use drugs “[o]ff and on” during that
time.

¶12 In the latter part of 2017, Mother failed to appear for
substance-abuse assessment and treatment, and she was closed out of the
service due to lack of contact. Also, although Mother submitted to an intake
for individual counseling in October, she attended only one session in
November and one in December before she was closed out of that service
due to lack of contact.

¶13 On December 15, 2017, police officers arrested Mother after
she was charged with four counts of contributing to the dependency or
delinquency of a child, charges arising from her second September
overdose. She was released approximately fourteen hours later, but
Immigration and Customs Enforcement (“ICE”) officials immediately
detained her.

¶14 While detained by ICE, Mother sent a letter to DCS for N.P.,
but DCS did not give N.P. the letter because her therapist recommended
against it. The children continued to tell the case manager they did not
want contact with Mother, and Mother did not send letters for the other
children; however, between January and April 2018, Mother wrote three
letters to the case manager expressing concern about them. Sometime in
February or March, the DCS case manager learned the ICE facility would
not facilitate in-person visits between Mother and the children.

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¶15 In February 2018, the juvenile court changed the case plan to
severance and adoption. DCS then moved to terminate Mother’s parental
rights on the grounds of a history of chronic substance abuse and prior
removal, see A.R.S. § 8-533(B)(3), (11), and the court set the severance
hearing for July 25, 2018.

¶16 In May 2018, Mother wrote to the DCS case manager and
inquired for the first time whether the children could visit her at the ICE
facility. In June 2018, pursuant to a court order, A.P., L.P., and J.P. appeared
by video conference at Mother’s immigration hearing.

¶17 On July 5, 2018, ICE released Mother from detention. DCS
referred Mother for substance-abuse treatment and urinalysis testing, and
in the weeks before the severance hearing, Mother reengaged with TERROS
Families F.I.R.S.T., taking substance-abuse classes and scheduling a
parenting class. She also complied with four urinalysis tests, although she
had a diluted test on July 19, which DCS considered “dirty.” Mother also
requested visits with the children, but DCS did not immediately arrange
visitation because the DCS unit psychologist recommended against it. Two
days before the severance hearing, however, the three older children met
with Mother.

¶18 On July 25, 2018, the juvenile court held the contested
severance hearing. After taking the matter under advisement, the court
terminated Mother’s parental rights to the children on the grounds of
chronic substance abuse, see A.R.S. § 8-533(B)(3), and prior removal, see
A.R.S. § 8-533(B)(11), while further finding that severance was in the
children’s best interests.

¶19 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) and Rule 103(A) of the Arizona Rules of
Procedure for the Juvenile Court.

ANALYSIS

I. Standard of Review

¶20 A court may sever parental rights if it finds clear and
convincing evidence of one of the statutory grounds for severance and finds
by a preponderance of the evidence that severance is in the children’s best
interests. See A.R.S. §§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz. 279,
281-82, 288, ¶¶ 7, 41 (2005).

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¶21 As the trier of fact in a termination proceeding, the juvenile
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts.” Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep’t
of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). Thus, the
resolution of conflicts in the evidence is uniquely the province of the
juvenile court, and we will not reweigh the evidence in our review. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). Instead,
we review the juvenile court’s order to determine if reasonable evidence
supports its factual findings. Matthew L., 223 Ariz. at 549, ¶ 7.

II. Mother’s Challenges to the Court’s Statutory Findings

A. Prior Removal

¶22 Mother argues the juvenile court erred by terminating her
parental rights based on prior removal. See A.R.S. § 8-533(B)(11).
Specifically, Mother challenges the court’s findings that DCS made diligent
efforts to provide appropriate reunification services and that Mother was
currently unable to discharge her parental responsibilities.

1. Diligent Efforts

¶23 Under A.R.S. § 8-533(B)(11), the juvenile court may terminate
a parent’s parental rights to a child if it finds that a child, previously
removed from the parent pursuant to court order and then returned to that
parent, is again removed within eighteen months of that return if DCS
“made diligent efforts to provide appropriate reunification services” and
the parent “is currently unable to discharge parental responsibilities.” DCS
may satisfy the requirement of diligent efforts if it provides the parent
“with the time and opportunity to participate in programs designed to help
her become an effective parent.” Maricopa Cty. Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994). DCS is not required, however, to provide
the parent with unlimited time to engage in services. See Maricopa Cty. Juv.
Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). Further, DCS “is not
required to provide every conceivable service or to ensure that a parent
participates in each service it offers.” JS-5019040, 180 Ariz. at 353. Instead,
DCS is obligated to undertake rehabilitative measures with a reasonable
prospect of success, rather than measures that are futile. Mary Ellen C. v.
Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).

¶24 Mother argues DCS did not make diligent efforts to provide
reunification services after the children’s second removal in September
2017. She concedes DCS provided her with services before her detention

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by ICE, and does not challenge the sufficiency of these services, but argues
DCS did not offer her services—most specifically, visitation for her and the
children—while she was detained.5 At trial, however, Mother’s DCS case
manager testified DCS “really has no reach in terms of getting services in
place in ICE custody,” and that when she contacted the ICE facility, she was
informed she could not arrange in-person visits. Further, Mother was
released less than one week after counsel for DCS eventually received an e-
mail providing the name of a contact who could allegedly arrange visits
between Mother and the children with advance notice, giving DCS little
time to arrange a visit between Mother and the children. Moreover, after
Mother’s September 2017 overdoses and the children’s removal, Mother’s
case manager asked the children monthly if they wanted to visit Mother,
but the children declined, and DCS would not force the children to do so.

¶25 Mother further argues DCS did not provide appropriate
services upon her release from ICE detention because DCS did not refer her
for supervised visits or individual counseling before the July 25 severance
hearing. Mother’s DCS case manager explained, however, that DCS had
staffed the question of visits between Mother and the children, and the unit
psychologist had recommended against providing visits at that time. The
case manager also explained that individual counseling would not have
been approved because Mother had already been referred for that service
and had been closed out.

¶26 Mother also argues she was afforded only twenty days to
participate in services, and thus DCS did not provide her with the time and
opportunity to meaningfully do so. However, Mother’s argument ignores
the services offered in the months between her overdoses in September 2017
and her arrest in December 2017, as well as the years of services provided
in the prior dependency, which she conceded to the juvenile court were part
of “the big picture.” Between the beginning of the first dependency in
March 2015 and the successful dismissal of that dependency in July 2017,
DCS offered Mother a plethora of services, including supervised visitation,
transportation, drug testing, substance-abuse assessment and treatment,
parent-aide services, parenting classes, individual counseling, family
counseling, and a psychological evaluation, as well as transition services
such as a family reunification team, funding for housing, and continued
services for the children. At trial, Mother testified those services were
helpful and conceded she could think of no additional services DCS should
have offered her. Moreover, after Mother overdosed on heroin in

5 At the start of the severance hearing, however, Mother conceded she
was “not asking DCS to put in services . . . while she’s in ICE custody.”

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September 2017, DCS again offered Mother drug testing, substance-abuse
assessment and treatment, individual counseling, supervised visitation,
and transportation, with additional services—including psychological and
psychiatric evaluations and parent-aide services—contingent on Mother
maintaining thirty days of sobriety. As previously noted, however, Mother
called in for urinalysis testing only twenty-six percent of the time, tested
positive the two times she submitted urine samples, and closed out of her
substance-abuse assessment and treatment classes and individual
counseling for lack of contact. Her participation during the time before she
was detained by ICE was, at best, sporadic, indicating further services
would likely have been futile. Moreover, by the time of the severance
hearing, the children had been in out-of-home care for a total of
approximately thirty-six of the previous forty-one months. As the juvenile
court recognized, “[t]he one thing Mother needs to reunify with the
Children is to establish consistent sobriety and [DCS] has provided ample
services to help Mother do that.” In this case, DCS provided Mother with
appropriate reunification services and more than ample time and
opportunity for her to participate in those services, and reasonable evidence
supports the juvenile court’s conclusion that DCS made diligent
reunification efforts.

2. Current Inability to Discharge Parental Responsibilities

¶27 Mother next argues the juvenile court erred in finding she was
currently unable to discharge her parental responsibilities. The juvenile
court found that, although Mother had apparently “achieved some sobriety
while in the restricted environment of federal custody,” Mother had proven
she was unable to control her substance abuse and she could not discharge
her parental responsibilities “because of the very real risk of another relapse
or overdose.”

¶28 The term “parental responsibilities” refers to those duties or
obligations a parent has regarding her child, Maricopa Cty. Juv. Action No.
JS-5894, 145 Ariz. 405, 408-09 (App. 1985) (citation omitted), and includes
providing food, shelter, medical attention, good physical care, and
emotional security, Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143
Ariz. 178, 185 (App. 1984). The term does not refer to an exclusive set of
factors; instead, it “establish[es] a standard which permits a trial judge
flexibility in considering the unique circumstances of each termination case
before determining the parent’s ability to discharge his or her parental
responsibilities.” JS–5894, 145 Ariz. at 409. DCS need not show the parent
is unable to discharge any parental responsibilities. Id. at 408.

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¶29 In this case, Mother engaged in services for more than two
years before DCS concluded she had made the necessary behavioral
changes, the children were returned to her care, and the court dismissed the
first dependency, in part because she was presumably sober. Although
Mother told the court there were no additional services DCS should have
offered her, only two months after the court dismissed the first dependency,
Mother overdosed on heroin with her children in the home while she was
their sole caregiver. Rather than seeking help, Mother overdosed a second
time on heroin two weeks later, again with the children in the home and
again while she was their sole caregiver. The second time, J.P. had to save
her by getting help after she had passed out on the floor. Mother
acknowledged she should have seen the first overdose as a call to “wake
[her] up” to not continue using heroin, but blamed postpartum depression.

¶30 Mother argues she participated in classes while detained by
ICE, but she had participated in numerous classes offered through DCS for
more than two years and appeared to successfully achieve sobriety before
relapsing. Moreover, her case manager testified that participating in
approximately four classes through ICE was inconsistent with the services
and treatment DCS required, which included a months-long process
beginning with an individual assessment and tailored recommendations.
Further, although Mother contends that, while detained, she learned to be
stronger and ask for help, she admitted at trial she had already learned to
ask for help and to access resources during the first dependency, but then
did not seek help when she needed it. When asked what was different at
the time of trial from when she had relapsed on heroin, she blamed her
depression at the time she relapsed. When asked how she could assure the
court she would not relapse again if something else happened to depress
her, she told the court she had been clean for three years and “[i]t’s not like
I decided to have postpartum depression.” Her purported sobriety at the
time of trial does not establish that she has her substance-abuse issues
under control, particularly given that, to the extent she achieved sobriety,
she did so in the restricted and controlled environment of ICE detention.6

¶31 The record reveals Mother’s pattern of abusing drugs,
participating in services, and relapsing, which would present an ongoing
risk to children in her care. The juvenile court found Mother’s explanations
inadequate to show she had achieved long-lasting sobriety, and reasonable
evidence supports the court’s conclusion that the risk of another relapse or

6 Moreover, as previously noted, Mother admittedly had a diluted
urinalysis test—which DCS considered “dirty”—only six days before the
severance hearing.

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overdose was “very real” and rendered Mother currently unable to
discharge her parental responsibilities.

B. Chronic Substance Abuse

¶32 Mother also argues the juvenile court erred in terminating her
parental rights pursuant to A.R.S. § 8-533(B)(3), the statutory ground of
chronic substance abuse.

¶33 However, “[i]f clear and convincing evidence supports any
one of the statutory grounds on which the juvenile court ordered severance,
we need not address claims pertaining to the other grounds.” Jesus M., 203
Ariz. at 280, ¶ 3 (citations omitted); see also A.R.S. § 8-533(B) (requiring that
evidence sufficient to justify the termination of the parent-child relationship
include “any one” of the enumerated termination grounds). Because we
conclude that reasonable evidence supports the court’s decision to
terminate Mother’s parental rights under A.R.S. § 8-533(B)(11), we do not
address this argument.

III. Best Interests

¶34 Finally, Mother argues the juvenile court erred in finding that
severance was in the children’s best interests.

¶35 The juvenile court must consider a child’s best interests when
considering a motion to terminate a parent’s parental rights. A.R.S. § 8-
533(B). Until a court finds a ground to terminate parental rights, the parent
and child “share a vital interest in preventing erroneous termination of their
natural relationship.” Kent K., 210 Ariz. at 285, ¶ 30 (quoting Santosky v.
Kramer, 455 U.S. 745, 760 (1982)). In a best-interests inquiry, however, the
court may “presume that the interests of the parent and child diverge
because the court has already found the existence of one of the statutory
grounds for termination by clear and convincing evidence.” Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018) (quoting Kent K., 210 Ariz. at
286, ¶ 35). Consequently, the focus turns to the child’s interests. Demetrius
L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016) (holding that, at the best-interests
stage of the analysis, the child’s interest in stability and security must be the
court’s primary concern (citations omitted)).

¶36 With that in mind, the best-interests inquiry must include
either “a finding as to how the child would benefit from a severance or be
harmed by the continuation of the [parent-child] relationship.” Maricopa
Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). A court must consider
the totality of the circumstances existing at the time of the severance

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determination, Alma S., 245 Ariz. at 150-51, ¶ 13 (citation omitted), while
recognizing that a child may benefit if a current adoptive plan exists for the
child, see JS-500274, 167 Ariz. at 6, if DCS can show the child is adoptable,
Alma S., 245 Ariz. at 150-51, ¶¶ 13-14, or if the child “would benefit
psychologically from the stability an adoption would provide,” JS–501904,
180 Ariz. at 352. The court may also consider evidence that an existing
placement is meeting the needs of the child in determining that severance
is in a child’s best interest. Demetrius L., 239 Ariz. at 4, ¶ 12; Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998). Additionally, the
court may consider that, in most cases, the continued presence of a statutory
ground for severance will have a negative effect on the child. Bennigno R.
v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013) (quoting
Maricopa Cty. Juv. Action No. JS–6831, 155 Ariz. 556, 559 (App. 1988)). Thus,
“[t]he existence and effect of a bonded relationship between a biological
parent and a child, although a factor to consider, is not dispositive in
addressing best interests.” Dominique M. v. Dep’t of Child Safety, 240 Ariz.
96, 98-99, ¶ 12 (App. 2016) (citing Bennigno R., 233 Ariz. at 351, ¶ 30).

¶37 Mother suggests the adoption of the children is unlikely
because three of them are more than twelve years old, and therefore, they
would need to consent to any adoption. See A.R.S. § 8-106(A)(3). But the
record contains no evidence the older children would not consent. A.P. and
J.P. were in an adoptive placement that was meeting their needs and where
they had lived for three years. Further, these same children refused to visit
Mother after her September 2017 overdoses.7 And although Mother
correctly points out that J.P. told the case manager he missed Mother and
wanted to return to her, the other children made no similar comments, and
there is no evidence that any of the children—including J.P.—ever indicated
they would withhold consent to an adoption.

¶38 Mother also argues that N.P.’s and L.P.’s behavioral issues
might prevent them from being adopted. Mother’s case manager agreed
that both children were “struggling a lot with physical symptoms of
trauma,” but noted they are “great kids” and “sweet kids” whose needs
were being met by their placement, and she further testified that they were
receiving trauma counseling, behavior coaching, and crisis stabilization
services, and L.P. was also receiving individual counseling and medication

7 Citing evidence to the contrary, Mother argues the record does not
support her case manager’s testimony that the children did not want to see
her. Weighing the evidence and resolving conflicts in the evidence,
however, is uniquely within the province of the juvenile court. Jesus M., 203
Ariz. at 282, ¶ 12.

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management for his ADHD. She testified that DCS planned to start the
process of finding both children a permanent home after they had received
further stabilization therapy. She also testified that N.P.’s struggles with
attachment and behavioral issues started during her visits with Mother in
October and November 2017, and opined that continued contact with
Mother would increase the severity of the problem. Finally, the case
manager testified that all four children were adoptable.

¶39 Moreover, in determining the best interests of the children,
the juvenile court found the children were “not safe—physically or
emotionally—in Mother’s care” due to her inability to overcome her
substance abuse, and therefore concluded that continuing the children’s
relationship with Mother would harm them. Although Mother
characterizes this conclusion as mere “speculation,” we disagree. In the
first dependency, Mother successfully completed services and reunited
with her children, but then twice overdosed on heroin while she was the
children’s sole caregiver, putting the children at risk of harm and ultimately
requiring J.P. to summon help to save her life. Further, she has had multiple
opportunities to address her substance-abuse issues and multiple relapses.
The court’s finding that terminating Mother’s parental rights was in the
children’s best interests is supported by reasonable evidence in the record.

CONCLUSION

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

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

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