Anna S., Michael T. v. Dcs, E.S.T.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANNA S., MICHAEL T., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, E.S.T., Appellees.

No. 1 CA-JV 19-0361
FILED 4-30-2020

Appeal from the Superior Court in Maricopa County
No. JD530848
The Honorable Jennifer E. Green, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Anna S.

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Michael T.

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellees Department of Child Safety
 ANNA S., MICHAEL T. v. DCS, E.S.T.
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

W I L L I A M S, Judge:

¶1 Anna S. (“Mother”) and Michael T. (“Father”) each appeal the
juvenile court’s order terminating their parental rights to their child
(“Child”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In April 2017, then nineteen-month-old Child was found
alone, unsupervised and crying outside of the hotel where Mother and
Child were staying. When police arrived, they observed that Mother
smelled of alcohol and showed signs of intoxication. Father, who lived in
Oregon, had not had a relationship with Child for approximately a year.
Police contacted the Department of Child Safety (“DCS”) and Child was
placed in the care of a relative in Arizona.

¶3 Following DCS’ filing of a dependency petition, the court
found Child dependent due to Mother’s neglect, substance abuse, and
mental health issues and because of Father’s abandonment, neglect, failure
to protect, and past domestic violence towards Mother.

¶4 Over the next several months DCS offered a range of services
to the parents that included, in part, substance abuse testing and treatment,
domestic violence counseling, psychological consultation and evaluation,
transportation, supervised visits and parent aide services. By January 2018,
approximately nine months later, Mother’s contact with DCS and
participation in reunification services had been inconsistent. That same
month, Mother was involved in a physical altercation with the adult
girlfriend of the relative whom Child was placed with, after Mother and the
relative had been consuming alcohol. Father’s participation in services had
been more regular than Mother’s and DCS considered placement of the
Child with Father. However, individual(s) living with Father were
unwilling to submit to a background check, therefore placement with
Father did not occur at that time.

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 ANNA S., MICHAEL T. v. DCS, E.S.T.
Decision of the Court

¶5 In July 2018, Child was moved to Oregon and placed with a
different relative. The case plan was changed from family reunification to
severance and adoption. In August 2018, DCS filed a motion to terminate
each parents’ rights to the Child, alleging Mother’s neglect and history of
substance abuse, and that both parents were unable to timely remedy the
circumstances giving rise to Child’s out-of-home placement.

¶6 In February 2019, Father’s second request to have Child
placed with him was approved. After a transition period, in May 2019 Child
moved in with Father. A safety plan allowed Mother visits with the Child
if supervised by the relative Child was previously placed with.

¶7 In June 2019, Oregon DHS (the equivalent to Arizona DCS)
made two unannounced visits to Father’s residence to check on Child’s
welfare. At the first visit they found luggage, the contents of which
belonged to a woman. Father claimed the luggage belonged to a female
friend. At the second visit, Oregon DHS found Mother at the home. Father
admitted to lying to Oregon DHS previously, and that it was Mother’s
luggage at the house. Mother appeared to be intoxicated, and both parents
refused a drug test. Because Father allowed Mother access to the Child
outside of the DCS approved safety plan, Child was placed with a third
relative in Arizona.

¶8 Between January 2019 and June 2019, Mother participated in
substance abuse treatment in Oregon, but was unable to produce evidence
that she successfully completed the program.

¶9 A severance trial was held in August 2019. The juvenile court
later issued a comprehensive ruling terminating both parents’ rights to
Child. Mother and Father each timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of
Procedure for the Juvenile Court 103(A).

DISCUSSION

¶10 “To justify termination of the parent-child relationship, the
[juvenile] court must find, by clear and convincing evidence, at least one of
the statutory grounds set out in [A.R.S. §] 8-533, and also that termination
is in the best interest of the child.” Michael J. v. Ariz. Dep’t. of Econ. Sec., 196
Ariz. 246, 249, ¶ 12 (2000); see also A.R.S. § 8-533(B).1 As the trier of fact in a

1 The court must also find that DCS made diligent efforts to provide
appropriate reunification services. See A.R.S. § 8-533(B)(8). On appeal,

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Decision of the Court

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.” Ariz. Dep’t. of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004). We “accept the juvenile court’s findings of fact ‘unless
no reasonable evidence supports those findings’ and will affirm its
severance order unless the order is clearly erroneous.” Id. at 334, ¶ 4
(quoting Jennifer B. v. Ariz. Dep’t. of Econ. Sec., 189 Ariz. 553, 555 (App. 1997).

¶11 Both parents challenge the sufficiency of evidence justifying
termination of the parent-child relationship under A.R.S. § 8-533(B)(8)(c),
which requires that: (1) the child has been in an out-of-home placement for
a cumulative total period of fifteen months or longer; (2) the parent has been
unable to remedy the circumstances that caused the child to be in an out-
of-home placement; and (3) 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.

I. Fifteen Months Out-of-Home Placement

¶12 Neither parent challenges whether Child was placed out-of-
home for more than fifteen months. For more than two uninterrupted years,
from April 2017 to May 2019, Child was in an out-of-home placement. At
the time of the severance trial, Child had been in an out-of-home placement
for twenty-seven of the twenty-eight months the dependency action had
spanned.

II. Inability to Remedy Circumstances Causing Out-of-Home Placement

¶13 Mother argues that by the time the severance trial took place
she had remedied the circumstances that led to Child’s removal from her
care in 2017. Although there is evidence Mother made efforts to participate
in a substance abuse treatment program from January 2019 to June 2019 in
Oregon, and sporadically throughout the dependency, Mother was unable
to provide proof that she successfully completed the program. While in the
program and within a few months of the severance trial, following a dispute
with her then boyfriend, Mother admitted to “drinking all weekend.” And
when Oregon DHS made an unannounced visit to Father’s home, Mother
was present and appeared to be intoxicated. Mother declined a referral to
continue substance abuse treatment upon her return to Arizona.

neither parent challenges this issue, nor whether termination of the parent-
child relationship was in Child’s best interest.

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 ANNA S., MICHAEL T. v. DCS, E.S.T.
Decision of the Court

¶14 In addition to Mother’s failure to meaningfully address her
alcohol use and demonstrate long-term sobriety, the juvenile court also
determined Mother failed to establish stable housing or employment. The
court’s conclusion that each of these circumstances remained unremedied
is supported by the record.

¶15 Although it was not Father’s substance abuse, housing or
employment that initially gave rise to the dependency action and Child’s
out-of-home placement, Father failed to protect Child from those
circumstances relating to Mother. Two years after Child’s removal from
Mother, Child was placed with Father for a month. During that month
Father “violated the rules of the safety plan at least twice,” and lied about
one of them, by allowing Mother access to the Child without supervision of
an approved adult and “allowed Mother to be intoxicated around [Child].”
The juvenile court’s findings are supported by the record, as is the court’s
conclusion that the circumstance of Father’s failure to protect Child and
ensure her safety from Mother’s alcohol use remained unremedied by the
time the severance trial took place.

III. Substantial Likelihood that the Parents Will Not Be Capable of
Exercising Proper and Effective Parental Care and Control in the Near
Future

¶16 The dependency spanned more than two years and Mother
never demonstrated she could be consistently sober. Her efforts and
willingness to engage in services were inconsistent throughout. Although
Mother did enroll in a substance abuse treatment program in 2019, her
failure to show proof of completing the program, coupled with her
significant history of alcohol abuse, led the juvenile court to conclude that
there was a substantial likelihood Mother’s alcohol dependence would not
change in the near future. In addition, her intoxication in June 2019, when
Oregon DHS visited Father’s home was within only a few months of the
severance trial. Thus, reasonable evidence supports the court’s conclusion
that there remained a substantial likelihood Mother would be incapable of
exercising proper and effective parental care and control into the near
future.

¶17 Although Father generally engaged in and completed
services, the juvenile court gave great weight to Father’s decision to allow
Mother access to the Child within weeks of Child being placed with Father.
As discussed supra, the court noted Mother was intoxicated at the time.
And, although Father denies the same, as well as knowing that he could not

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Decision of the Court

supervise Mother’s visitation with Child, the court made a credibility
determination and concluded otherwise.2

¶18 The court noted that “[Father] has shown that he will not act
to protect [Child] from unsupervised contact with Mother or to protect
[Child] from Mother’s substance abuse.” Father’s ability and willingness to
protect Child from Mother’s alcohol use was at the center of the out-of-
home placement and dependency from the outset. Thus, given the closeness
in time between Father’s willingness to allow an intoxicated Mother near
Child in violation of the safety plan, and the severance trial that occurred
more than two years after Child was first placed in an out-of-home
placement, the record supports the court’s conclusion that “[Father’s]
actions demonstrate he is unable to care for [Child] safely in the near
future.” Although we recognize that a different judicial officer could come
to a different conclusion, we cannot say this conclusion was clearly
erroneous.

¶19 Because we affirm the juvenile court’s order on the basis of
fifteen months in an out-of-home placement, we need not address whether
termination as to Mother was appropriate under A.R.S. § 8-533(B)(2)
(neglect of a child) or A.R.S. § 8-533(B)(3) (history of chronic substance
abuse). See Jesus M. v. Ariz. Dep’t. of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002) (“If 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.”).

CONCLUSION

¶20 We affirm the juvenile court’s order terminating both
Mother’s and Father’s parental rights.

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

2 The juvenile court is in the best position to weigh the evidence and
determine the credibility of testimony in making its findings. See Oscar O.,
209 Ariz. at 334, ¶ 4.

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