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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAWN B., Appellant,

v.

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

No. 1 CA-JV 19-0331
FILED 8-20-2020

Appeal from the Superior Court in Maricopa County
No. JD 504987
The Honorable David K. Udall, Judge

AFFRIMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee, Department of Child Safety
 DAWN B. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann1
joined.

C A M P B E L L, Judge:

¶1 Dawn B. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her sons, John and Jack2, ages 8 and 5,
respectively (“the boys”). Because sufficient evidence supports the juvenile
court’s order, we affirm.

BACKGROUND

¶2 Mother has had an extensive 20-year history with the
Department of Child Safety (“DCS”).3 In March 2016, DCS received a report
that Mother had neglected the boys and four of their sisters (“the children”),
ages 1 to 10, by leaving them in the care of her roommates who used
methamphetamine, and that one of the children’s fathers, Curtis, had hit
Mother in the jaw. Mother and Curtis had a history of domestic violence. In
addition, the report alleged that Mother had a history of abusing Percocet.

¶3 A DCS case manager went to Mother’s home in late March
2016 and observed that although the home was adequately clean, the
children were extremely dirty. Mother denied that she and Curtis had a
history of domestic violence, but admitted to a history of domestic violence
with another of the children’s fathers, Robert, from whom she had been
separated for two years. Mother denied taking Percocet and denied that her
roommates used methamphetamine. Mother told the investigator that she
and Curtis had ended their relationship and he was no longer living in the

1 Chief Judge Peter B. Swann replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Judge Swann has read the briefs
and reviewed the record.
2 The children’s names have been replaced by pseudonyms to protect
their identities.
3 Prior to terminating Mother’s parental rights to the boys and four of
their sisters in this matter, the juvenile court terminated her parental rights
to four older children.

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Decision of the Court

home. The case manager asked Mother to take a drug test. She did not
comply.

¶4 Later that month, the case manager spoke with Mother again.
Because the children had reported that Curtis was back in the home, the
case manager expressed her concern about continuing domestic violence.
Mother again denied there had been domestic violence between herself and
Curtis.

¶5 The DCS case manager interviewed one of the boys’ sisters.
She reported that Curtis had stabbed Mother in the face with a screwdriver,
requiring medical attention. She told the case manager that four “uncles”
lived with the children and Mother, but she did not know the names of two
of the men.

¶6 DCS interviewed the father, Robert, in early April 2016.
Robert told the case manager that Mother disclosed to him that Curtis had
hit her and smashed her television. Robert disclosed that he had recently
used methamphetamine “with the guys in [Mother’s] house.” Also in April
2016, Mother reported that Curtis had beaten her up and that she had had
to go to the hospital. Mother, who had a history of methamphetamine use,
also reported she had relapsed and used methamphetamine for about two
weeks in April 2016.

¶7 DCS took custody of the children in April 2016. All of the
children were bruised and infested with lice. DCS filed a dependency
petition and the juvenile court found the children dependent in July 2016.
The court adopted a concurrent case plan of reunification and severance
and adoption.

¶8 Mother was on probation for past criminal convictions and
was required to obtain substance abuse services at TERROS at the time of
the children’s removal. An intake assessment at TERROS recommended
that Mother undergo a psychiatric evaluation and begin standard
outpatient drug treatment (“SOP”). Mother did not complete SOP or a
psychiatric evaluation and TERROS terminated services for lack of
participation. DCS again referred Mother to TERROS in June 2016, but she
failed to complete an intake assessment and was again terminated from
services. Mother was required to call in to TASC daily from June to
September 2016 for drug testing. She missed multiple tests during that time
period.

¶9 DCS referred Mother to TERROS for a third time in August
2016 and she finally completed an intake assessment in October 2016.

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TERROS did not recommend any services for Mother at that time. A DCS
supervisor testified that TERROS will not refer a client for services if they
deny using drugs, as Mother had done, and there was no recent positive
drug test.

¶10 In June 2016, a parent aide began supervising visits between
Mother and children in her home. The parent aide noted that Mother had
trouble managing the children, that she appeared frustrated at times, and
that she yelled at them. In addition, Mother did not demonstrate
appropriate boundaries in her interactions with the children. She missed
numerous visits in the fall of 2016, and the parent aide noted that Mother
was unwilling or unable to make needed behavioral changes in the six
months she had received parent aide services. In December 2016, Mother
was terminated from parent aide services, “due to her minimal engagement
and [for] not making behavioral changes.” After the closure, Comtrans
supervised Mother’s visitation with the children. During those visits,
Mother reportedly got frustrated with the children and yelled loudly at
them at times. Subsequently, DCS provided another referral for parent aide
services, which Mother successfully completed.

¶11 In August 2016, Mother participated in a psychological
evaluation with Dr. Sandra Graff. Mother told Dr. Graff that she had used
methamphetamine from 2001 to 2006, and that she had lost four of her
children in 2003 “to DCS because of meth.” Dr. Graff diagnosed Mother
with unspecified intellectual disability (63 IQ), severe major depressive
disorder, opioid use disorder, and stimulant use disorder (amphetamine
type substance), in remission. Dr. Graff’s prognosis for Mother’s “ability to
understand and actualize newly-learned behaviors of any kind would be
guarded to poor, according to testing.” Dr. Graff noted that Mother “may
be more focused on her relationships with men than on the nurturance and
protection of her children.” Dr. Graff concluded that a child would be at
risk in Mother’s care.

¶12 In September 2016, DCS referred Mother for family
counseling, therapeutic visitation with the children, and individual
counseling. She was required to call in to TASC daily from October to
December 2016 for random drug testing. She missed multiple tests and
frequently failed to call in, but tested negative for substances once in
November. Mother was again required to call in to TASC for random drug
testing from February to May 2017. She called in more consistently during
this period and tested negative for illegal substances.

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Decision of the Court

¶13 Mother completed a psychiatric evaluation in March 2017.
The evaluator diagnosed Mother with an unspecified depressive disorder
and prescribed her medication for depression. In August 2017, Mother
completed a ten-hour parenting class. DCS again referred Mother for
individual counseling and family therapy in November 2017.

¶14 Mother was required to call in daily to TASC from August
2017 to October 2018. Mother failed to call in on multiple occasions and
missed at least 12 tests but tested negative for substances more than 40
times during this period. Mother tested positive for opiates 11 times, but
provided DCS with a prescription for morphine. Mother was required to
call in to PSI daily for drug testing from October 2018 to August 2019. She
missed three tests but tested negative for substances 25 times.

¶15 In April 2018, DCS filed a motion to place the boys and one of
their sisters in Mother’s physical custody, over the objection of the
children’s guardian ad litem. Mother began having unsupervised visitation
with the boys and the sister in her home. However, DCS withdrew its
motion and discontinued overnight visitation after discovering that Mother
had allowed another man, Gary, to live with her.4 DCS had informed
Mother that Gary was not allowed to be around the children because of his
history with DCS, including having his parental rights to one of Mother’s
older children terminated, as well as concerns about his mental health and
substance abuse. In addition, the children had expressed a desire not to
have any contact with Gary and Mother had instructed them to lie about
his presence in the home.

¶16 In January 2019, Mother filed a motion to return the children
to her care. See Ariz. R.P. Juv. Ct. 59. After an evidentiary hearing, the
juvenile court found that although Mother had been compliant with the
case plan, her relationship with Gary posed a threat to the children’s
welfare. The court further found that Mother did not have the finances to
support herself and the children, as evidenced in part by the fact that she
had lied to a foster placement about being pregnant in order to obtain
money from them on multiple occasions.

¶17 Mother was required to call in for drug testing from January
to early March 2019. She failed to call in 48 times during that time period
but tested negative for illegal substances on 5 occasions in January.

4 Mother posted on Facebook that she was engaged to Gary.

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Decision of the Court

¶18 In February 2019, DCS referred Mother for supervised visit-
only parent aide services. These services were terminated after the parent
aide transported two of the children to Mother’s home and discovered that
she was in jail and that Gary was in the home. In March 2019, Mother was
released from jail. DCS was concerned that Mother was using
methamphetamine again and asked her to submit to hair follicle testing.
Mother submitted two hair follicle tests that month. Both tests were positive
for amphetamine and methamphetamine, indicating chronic drug use as
opposed to a one or two-time use. Despite the positive tests, Mother denied
using methamphetamine.

¶19 In April 2019, police contacted DCS and informed the agency
that an unnamed individual who had been staying with Mother had been
arrested for having drugs. DCS filed a motion to terminate Mother’s
parental rights to all six of the children on the grounds of fifteen months’
time in care and her history of chronic abuse of dangerous drugs, controlled
substances, or alcohol. See A.R.S. §§ 8-533(B)(8)(c), (B)(3).

¶20 After missing two appointments, Mother completed a
psychological evaluation with Dr. James Thal in May 2019. Dr. Thal
diagnosed Mother with an intellectual disability (65 IQ), adjustment
disorder, unspecified personality disorder with dependent traits, stimulant
use disorder, and opioid use disorder. Dr. Thal noted that when he asked
Mother whether methamphetamine had any negative effects, she denied
that it did, despite having lost her front teeth due to methamphetamine-
induced decay. Mother told Dr. Thal that one of her daughters had
disclosed that Robert had molested her and that he failed a polygraph
examination, but Mother did not believe the abuse occurred. She believed
that DCS had “tricked” the children into making false allegations. Mother
was still married to Robert at the time of the evaluation.

¶21 Dr. Thal opined that Mother’s “mental deficiency, along with
a troubling propensity to become involved in dysfunctional relationships,”
precluded her from being a safe and effective parent. Dr. Thal concluded
that Mother’s prognosis for becoming a minimally adequate parent was
poor, that a child would be at risk for neglect in her care, and that the
children could not be safely returned to Mother. Dr. Thal concluded that
further reunification services would not likely be productive.

¶22 In August 2019, Mother asked DCS to allow Gary to visit with
the children. DCS denied the request. Mother made a second motion to
place the boys with her in September 2019, and the juvenile court denied

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Decision of the Court

the motion. At some point in 2019, Mother was terminated from individual
counseling services because of her lack of contact with the therapist.

¶23 The court held a two-day termination trial in September 2019.
Mother contested termination only regarding the boys and pled no contest
to the termination of her rights to their sisters. Mother testified that she was
still married to Robert and indicated that she did not know whether she
would remain married to him. When asked what she would tell Gary if he
wanted to move back in with her, she stated it “probably” would not
happen and that she would tell Gary “I got to get with my kids first for a
while.” DCS program supervisor Kyla Gordon testified that Mother’s
inability to pick safe partners had been a chronic issue in this dependency
case as well as in Mother’s previous dependency cases, and that “[t]he
children have been exposed to people [who] are not safe and put them in
great danger.” The juvenile court terminated Mother’s parental rights to the
children on both of the alleged grounds and found that severance was in
their best interests.5 Mother timely appealed.

DISCUSSION

¶24 Mother argues that insufficient evidence supported the
juvenile court’s finding that termination was warranted for out-of-home
placement pursuant to A.R.S. § 8-533(B)(8)(c). The juvenile court may
terminate parental rights under A.R.S. § 8-533(B)(8)(c) if DCS has made
diligent reunification efforts, the parent has been unable to remedy the
circumstances causing the parent’s child to be in an out-of-home placement
for fifteen months or longer, and “there is a substantial likelihood that the
parent will not be capable of exercising proper and effective parental care
and control in the near future.” We view the evidence and the reasonable
inferences to be drawn from it in the light most favorable to affirming the
juvenile court’s order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18 (App. 2009). We will not reverse the juvenile court’s order unless
reasonable evidence does not support the juvenile court’s factual findings.
Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).

¶25 The boys had been in an out-of-home placement for more
than three years at the start of the severance trial. Mother argues that she
remedied the circumstances causing the boys to be in an out-of-home
placement because she participated in all of the services offered and
demonstrated behavioral changes during the dependency. In making a

5 The juvenile court also terminated the parental rights of the boys’
father, Robert. He is not a party to this appeal.

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determination that a parent has been unable to remedy the circumstances
causing the child to be in an out-of-home placement, we construe those
circumstances to mean the circumstances existing at the time of the
severance that prevented a parent from appropriately providing for the
parent’s child. Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22
(App. 2007); see also Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 17, ¶ 26
(App. 2019) (court must consider “both the origin [of the dependency] and any
cause arising during the dependency”) (emphasis in original).

¶26 Here, the juvenile court found that although DCS made
diligent efforts to provide reunification services to Mother, she was unable
to remedy the circumstances causing the boys to be in an out-of-home
placement. Citing Dr. Thal’s opinion, the court found that there was a
substantial likelihood that Mother would not be capable of exercising
proper and effective parental care and control in the near future due to her
intellectual disability.

¶27 Reasonable evidence supports the juvenile court’s findings.
Dr. Thal evaluated Mother in May 2019, and even though she had engaged
in some services, his prognosis that Mother would be able to demonstrate
minimally adequate parenting skills was poor in light of her intellectual
disability. Dr. Thal also noted that Mother had “not been able to overcome
. . . her involvement in dysfunctional and troubled relationships.” Dr. Thal
opined that Mother lacked the capacity to acquire parenting skills, “maybe
most especially in the area of protecting her children.”

¶28 Because sufficient evidence supported the juvenile court’s
finding that severance was warranted pursuant to A.R.S. § 8-533(B)(8)(c),
we need not consider Mother’s challenge to the alternate ground of chronic
substance abuse. See Jesus M. v. Ariz. Dep’t of Econ. Sec, 203 Ariz. 278, 280,
¶ 3 (App. 2002).

¶29 Next, Mother argues that the juvenile court erred by finding
that termination of her parental rights was in the boys’ best interests. We
do not reweigh the evidence and will affirm the juvenile court’s factual
findings if supported by reasonable evidence. Dominique M. v. Ariz. Dep’t of
Child Safety, 240 Ariz. 96, 97, ¶ 6 (App. 2016). “Although fundamental,
parental rights are not inviolate; a court may still sever those rights if it finds
clear and convincing evidence of one of the statutory grounds for
severance, and also finds by a preponderance of the evidence that severance
is in the best interests of the child[].” Id. at 98, ¶ 7 (citations omitted).
Severance is in a child’s best interests if the child would “derive an
affirmative benefit from termination or incur a detriment by continuing in

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the relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6
(App. 2004). A current adoptive plan is a well-established affirmative
benefit to a child. Id.

¶30 Reasonable evidence supported the juvenile court’s best
interests finding. Jack was in an adoptive placement at the time of trial, and
even though John was not, both boys were adoptable, and a previous foster
family of John was willing to adopt him.

¶31 Mother argues that she loves the boys, is bonded to them, and
she believes the evidence showed she was able to meet their daily needs. In
addition, she argues that the boys would not be in danger in her care
because she has broken up with Gary. Although the existence of a bond
between a parent and child is a factor in assessing best interests, it is not
dispositive. Dominique M., 240 Ariz. at 98, ¶ 12. “Even in the face of such a
bond, the juvenile court is required to evaluate the totality of circumstances
and determine whether severance is in the best interests of the children.”
Id. at 99, ¶ 12. And as discussed above, reasonable evidence supported the
severance ground of out-of-home placement and the court’s conclusion that
Mother would not be a fit parent in the near future, if ever. The juvenile
court considered the totality of the circumstances and found that severance
was in the boys’ best interests. Reasonable evidence supports that finding.

CONCLUSION

¶32 For the foregoing reasons, we affirm the juvenile court’s
termination of Mother’s parental rights.

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

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