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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DESIRAE M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, I.V., S.N., S.N., S.N., Appellees.

No. 1 CA-JV 20-0077
FILED 9-10-2020

Appeal from the Superior Court in Maricopa County
No. JD31063
The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Law office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellees
 DESIRAE M. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Desirae M. (mother) appeals the superior court’s order
terminating her parental rights to her biological children ISA, SAN, SER,
and SAV (the children). Because reasonable evidence supports the superior
court’s order, this court affirms the termination of mother’s parental rights.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court views the evidence, and reasonable inferences to
be drawn from it, in the light most favorable to sustaining the superior
court’s decision. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282,
¶ 13 (App. 2002).

¶3 Mother has a significant history of substance abuse, arrests for
drug-related crimes, and domestic violence. In 2011, the Department of
Child Safety (DCS) first received a report mother was abusing drugs and
neglecting ISA. DCS referred mother to Terros for mental-health and
substance-abuse treatment services. Between 2011 and 2017, DCS twice
filed dependency petitions on the grounds mother was not addressing her
mental-health, domestic-violence, and substance-abuse problems. Each
time, mother engaged in counseling and reunification services DCS offered,
and DCS dismissed the petitions.

¶4 In early December 2018, mother had a violent altercation with
maternal grandmother. During this incident, mother threw several objects
at maternal grandmother, but she missed and they instead hit the children.
Mother also attempted to hit maternal grandmother with a car. DCS then
removed the children from mother’s home and filed a third dependency
petition.

¶5 In mid-December, the superior court held a preliminary
protective hearing during which mother was informed of the reunification
services DCS would provide. They included: urinalysis and hair follicle
testing; substance-abuse assessment and treatment services; mental-health
treatment services; supervised visitation services; and transportation.

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Decision of the Court

Mother also agreed to self-refer to Potter’s House for individualized
counseling with a domestic-violence component.

¶6 In January 2019, DCS provided mother with referrals for
urinalysis and hair-follicle testing. Mother, however, did not participate in
any drug testing and was arrested twice that month for possession of
methamphetamine. The following month, she was arrested two more times
for possession of methamphetamine and heroin. Mother was arrested yet
again in March when police found methamphetamine and drug
paraphernalia in a U-Haul vehicle she failed to return. Mother entered
guilty pleas to lesser-included offenses for the five charges and was
sentenced to six-months’ incarceration, beginning in April 2019, and was
placed on probation upon her release.

¶7 During her incarceration, mother utilized some services
offered by the jail, including the Mosaic intensive substance-abuse
treatment program. She also engaged in weekly supervised phone calls
with the children but did not have any in-person visits with them. In
October 2019, mother completed her sentence. The following month mother
was again arrested, and her probation revoked, when security personnel at
the probation office discovered methamphetamine and marijuana in her
purse.

¶8 On November 22, 2019, DCS moved to terminate mother’s
parental rights based on the children’s out-of-home placement for more
than nine months. The superior court held a contested severance hearing
on January 29, 2020. Mother was still incarcerated at the time of the hearing.
The superior court issued its findings of fact, conclusions of law, and order
terminating mother’s parental rights on February 24, 2020. The superior
court found DCS “made a diligent effort to provide reunification services,”
but mother failed to participate in those services. The superior court also
found termination was in the children’s best interests. Mother timely
appealed. On appeal, Mother does not challenge the best interests’
determination. This court has jurisdiction under Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 8-235.A, 12-120.21.A.1.

ANALYSIS

¶9 A superior court may sever a parent’s rights if clear and
convincing evidence establishes at least one statutory ground. See A.R.S.
§§ 8-533.B, 8-537.B; see also Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12 (2000). Because the superior court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and

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resolve disputed facts,” this court will affirm an order terminating parental
rights if reasonable evidence supports the order. See Jordan C. v. Ariz. Dep’t
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (internal citations omitted).

¶10 Under Arizona law, the parental relationship may be
terminated if (1) DCS “has made a diligent effort to provide appropriate
reunification services,” (2) the children have “been in an out-of-home
placement for a cumulative total period of nine months or longer,” and (3)
“the parent has substantially neglected or wilfully refused to remedy the
circumstances that cause the child[ren] to be in an out-of-home placement.”
See A.R.S. § 8-533.B.8(a).

¶11 Mother does not dispute the time the children spent in an out-
of-home placement or her inability to remedy the circumstances causing the
out-of-home placement. Instead, mother challenges the sufficiency of
services offered by DCS, and argues the superior court erred in finding she
“substantially neglected or willfully refused to participate in reunification
services.” Mother essentially asks for a reweighing of the evidence, which
this court will not do. See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151,
¶ 18 (2018). Contrary to mother’s arguments on appeal, the superior court’s
decision is supported by reasonable evidence.

¶12 During the December 2018 hearing, mother was told of the
services DCS would offer to reunite her with the children and mother
agreed to self-refer “to Potter’s House for individual counseling with a
domestic violence component.” Mother scheduled the intake assessment
but did not attend the appointment and made no attempt to reschedule
either before or after her six-month incarceration. Mother also scheduled,
but did not attend, a substance-abuse intake assessment with Terros.
Mother testified she was unable to attend the appointment because of her
incarceration. The record does not support this assertion. Mother’s
appointment was scheduled for April 26, 2019. Her six-month incarceration
term began three days later on April 29, 2019. Mother also failed to
participate in any urinalysis or hair follicle testing to demonstrate her
sobriety. Further testimony and exhibits presented to the superior court
showed mother was arrested for six separate drug-related offenses in 2019
despite being incarcerated for approximately eight months of the year.

¶13 Though mother took some positive steps during her six-
month incarceration, e.g. completing the Mosaic Program, these steps do
not establish that the superior court abused its discretion in concluding
mother substantially neglected or willfully refused to remedy her
addiction. See In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571,

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 DESIRAE M. v. DCS et al.
Decision of the Court

577 (App. 1994). “Termination is not limited to those who have completely
neglected or willfully refused to remedy” the circumstances causing out-of-
home placement. Id. at 576 (emphasis original). Indeed, when a parent
“makes only sporadic, aborted attempts to remedy her addiction,” the
superior court “is well within its discretion in finding substantial neglect
and terminating parental rights on that basis.” See id.

¶14 The children’s best interests are not served by waiting
indefinitely for mother to become a capable and effective parent. See id. at
577. DCS developed and set a case plan of family reunification for mother.
Despite the support services offered her, mother did not follow the
reunification plan.

CONCLUSION

¶15 Mother failed to show the superior court’s findings were not
supported by trial evidence or otherwise were an abuse of discretion.
Accordingly, the superior 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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