Felisha L. v. Dcs, D.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FELISHA L., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, D.C., Appellees.

No. 1 CA-JV 19-0050
FILED 10-10-2019

Appeal from the Superior Court in Maricopa County
No. JD22897
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
 FELISHA L. v. DCS, D.C.
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Diane M. Johnsen joined.

W E I N Z W E I G, Judge:

¶1 Felisha L. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to D.C. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Kelly C. (“Father”)1 are the biological parents of
D.C., born in November 2013. The Department of Child Safety learned
about D.C. shortly after his birth, when he and Mother tested positive for
methamphetamines. Mother told DCS investigators about her long,
untreated struggle with substance abuse and mental health issues. DCS
took temporary custody of D.C. and petitioned the juvenile court to find
him dependent as to Mother on grounds related to substance abuse. The
court later dismissed the dependency petition on DCS’s motion based on
Mother’s “progress with sobriety,” and D.C. was returned to Mother in
April 2014.

¶3 Around two years later, DCS learned that Mother had
relapsed into methamphetamine abuse. Mother and D.C. were living in the
guesthouse of Mother’s grandmother (“Grandmother”). DCS found
“filthy” and dangerous living conditions with trash strewn on the floor, and
drugs and “unsafe products” within D.C.’s reach. Grandmother alerted
DCS to concerns of abuse and neglect. She reported that Mother had taken
D.C. shoplifting. She also explained that D.C. was “fearful” of Mother
because Mother would “roughly” grab his hair and scream at him.

¶4 DCS removed D.C. from Mother and placed him with
Grandmother in May 2016, but moved him to another relative in June 2016
after receiving an allegation that D.C. had sexually assaulted another child
while in Grandmother’s care. DCS then moved him to a licensed foster
home in October 2016 after he displayed more sexualized behavior. D.C.,

1The court also terminated Father’s parental rights. He later died and is
not party to this appeal.

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 FELISHA L. v. DCS, D.C.
Decision of the Court

then three years old, was found to have special needs, including “little
intelligible speech,” displays of aggression to children and adults, and
“severe hearing loss in both ears due to chronic, untreated middle ear
infections.”

¶5 Meanwhile, DCS again petitioned the juvenile court in June
2016 to find D.C. dependent as to Mother on grounds of substance abuse
and neglect. DCS alleged that Mother had an “extensive history” of
substance abuse, “refused to complete a urinalysis test and a hair follicle
test since May 12, 2016,” and “neglect[ed] to properly treat her mental
health.” DCS further alleged that Mother could not provide D.C. with
“stable housing,” “a safe and stable home environment” or meet his “basic
needs, such as food, clothing, shelter and medical care.” DCS referred
Mother for parent aide services, supervised visitation and parenting
classes, but she declined to participate. Additionally, Mother missed a DCS
team decision-making meeting and the court’s preliminary protective
conference.

¶6 Mother was homeless at this point and sought “residential
treatment and interim services” during an intake appointment at Lifewell
Behavioral Wellness, where she admitted using roughly $20 of
methamphetamines daily. Despite Lifewell’s efforts, she never participated
in the offered services and was then incarcerated for 50 days between July
and September 2016 after being indicted on multiple felony counts of
Taking the Identity of Another. After released from jail pending her
criminal trial, Mother remained disengaged and abruptly left a child-family
team meeting because it was “too hectic.”

¶7 The court held a hearing on the dependency petition in
November 2016. Mother did not appear. DCS offered 13 exhibits into
evidence. The court found that Mother had no good cause for missing the
hearing and waived her right to contest the dependency allegations. It
ultimately found D.C. dependent as to Mother on the grounds alleged and
adopted a case plan of “family reunification concurrent with severance and
adoption.” Though Mother had not engaged in services, the court ordered
that DCS offer her visitation, along with random drug testing and parent
aide services.

¶8 Mother pleaded guilty to the earlier felony counts and was
reincarcerated in January 2017. According to DCS reports, she had still not
engaged in “any services,” had “not maintained any contact with [DCS] to
inquire about” the child and had not verified stable housing or
employment.

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 FELISHA L. v. DCS, D.C.
Decision of the Court

¶9 The court then changed the case plan to severance and
adoption, and DCS moved in June 2017 to terminate Mother’s parental
rights on several grounds, including abandonment, substance abuse and
nine-months in out-of-home placement. In April 2018, DCS amended its
motion to include fifteen-months in out-of-home placement.

¶10 The hearing was delayed and did not commence until
October 2018. In the interim, and over DCS’s objection, the juvenile court
ordered that Mother and D.C. have two supervised visits. D.C. twice
visited Mother in prison (April and June 2018), and they once spoke on the
telephone (March 2018). D.C. did not immediately recognize Mother, but
they interacted. D.C.’s behavior significantly regressed after both in-person
visits. His foster parents and teacher reported “extreme tantrums.” And
he suffered frequent nightmares, had trouble focusing and “panic[ked]” if
left alone. D.C. also described the second visit as “scary.” The court
suspended further visitation until Mother finished her prison sentence.

¶11 Mother was released from prison in September 2018. She
returned to live with Grandmother in the same house that contributed to
D.C.’s removal. DCS then arranged for Mother to visit D.C. on Monday
and Wednesday of each week. The court granted Mother additional
visitation time because DCS had waited two weeks after her release to
arrange visitation. Given this two-week lapse, the court certified DCS
reunification efforts in October 2018, but “crossed-out” case management
services and visitation services.

¶12 Thereafter, Mother consistently attended group therapy,
focusing on communication and managing emotions. She also passed 19
drug tests from October to December 2018. D.C. displayed more behavioral
problems after her release, including aggression towards classmates and
extreme sexualized behaviors.

¶13 The court held a contested four-day severance hearing in
October and December 2018, and heard testimony from eight witnesses,
including Mother, the case manager, D.C.’s teacher and a psychologist. The
court terminated Mother’s parental rights to D.C. on the ground of nine-
months in out-of-home placement, but declined termination based on
substance abuse, abandonment, or fifteen-months in out-of-home
placement. The court recounted Grandmother’s earlier reports of Mother’s
abuse and neglect, including that D.C. witnessed “terrible and
inappropriate sexual things” under Mother’s care. The court also found
that DCS made reasonable and diligent efforts to effectuate reunification of
the family.

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 FELISHA L. v. DCS, D.C.
Decision of the Court

¶14 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. § 8-235(A).

DISCUSSION

¶15 To terminate parental rights, the juvenile court must find clear
and convincing evidence of a statutory ground in A.R.S. § 8-533(B) and that
termination is in the child’s best interests by a preponderance of the
evidence. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). We will affirm
a severance order unless it is clearly erroneous, and we accept the court’s
factual findings unless no reasonable evidence supports them. Jesus M. v.
Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶16 Mother raises three arguments on appeal. She first argues the
termination order is internally irreconcilable because the juvenile court
rejected the fifteen-months in out-of-home placement ground for severance,
which she asserts carries a “diminished” burden, but accepted the nine-
months in out-of-home placement ground, which she asserts carries a “high
finding of parental misconduct.”

¶17 We find no inconsistency in the court’s decision. Although
both grounds hinge on a child’s time in DCS custody, the nine-month and
fifteen-month grounds are independent bases for termination with distinct
requirements. Termination is permitted on nine-months if “the parent has
substantially neglected or willfully refused to remedy the circumstances
that cause . . . an out-of-home placement,” A.R.S. § 8-533(B)(8)(a), while
termination is permitted on fifteen-months if the parent has not
“remed[ied] the circumstances” and is substantially likely to remain
“[in]capable of exercising proper parental care in the near future,” A.R.S. §
8-533(B)(8)(c). As applied here, the court found that Mother had not
remedied the circumstances that caused D.C.’s removal, but could not find
clear and convincing evidence that Mother would be unable to parent in the
near future based on her testimony and post-release engagement in
services. Simply put, the court’s lack of certainty about Mother’s parenting
prospects in the near future under the fifteen-month ground does not defeat
its finding under the nine-month ground that Mother “substantially
neglected to remedy the circumstances” in the past.

¶18 Mother next contests the factual basis for the court’s finding
that she “substantially neglected to remedy the circumstances” causing
D.C.’s out-of-home placement. We are not persuaded. The record includes
reasonable evidence to support the court’s decision. Mother made virtually
no effort to “remedy the circumstances” after D.C. was first removed. She

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 FELISHA L. v. DCS, D.C.
Decision of the Court

had 201 days from D.C.’s removal until her ultimate incarceration to pursue
substance abuse treatment, visitation, undergo drug testing and attend
parenting classes. Aside from her attendance at one intake appointment,
she declined. As for her time in prison, the court found “no evidence” that
Mother completed relevant programs. And most recently, after she was
released from prison, Mother returned to live at Grandmother’s house, “the
same environment in which [D.C.] appears—from all credible evidence—
to have acquired significant trauma.” The DCS case manager thus testified
it was “really difficult to articulate that Mother has made any behavioral
changes towards stability or sobriety.” At any rate, Mother simply points
to more favorable evidence for her position, but we do not reweigh the
evidence on appeal. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶¶
18-19 (2018). We find no abuse of discretion.

¶19 Lastly, Mother argues the court erred in finding that DCS
made “diligent effort[s] to provide appropriate reunification services,”
A.R.S. § 8-533(B)(8). But the record contains reasonable evidence to find
that DCS made diligent efforts in providing Mother the “opportunity to
participate in programs designed to improve [her] ability to care for the
child.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 37 (App.
1999). Although Mother argues DCS balked at allowing D.C. to visit her in
prison, it arranged such visits and asked to terminate them only after they
proved upsetting to the child. Otherwise, Mother was offered or provided
an assortment of services, including substance abuse assessment and
treatment, drug testing, visitation, transportation services, parenting
classes, allowance and subsidies, case management services, medical and
dental services and parent aide services. That is why the court consistently
found, without Mother’s objection and with only one exception, that DCS
satisfied the “diligent efforts” requirement after D.C.’s removal.

CONCLUSION

¶20 We affirm.

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

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