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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NELTURIAH S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.P., NAVAJO NATION, Appellees.

No. 1 CA-JV 20-0252
FILED 2-2-2021

Appeal from the Superior Court in Maricopa County
No. JD35914
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 NELTURIAH S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Nelturiah S. (“Mother”)1 appeals the juvenile court’s order
terminating her parental rights to her child, B.P. Because Mother has
shown no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Both Mother and B.P., born in 2014, are enrolled members of
the Navajo tribe. In May 2018, police arrested Mother following an
altercation with her boyfriend. Mother was intoxicated and no one was
left to care for B.P. Police contacted the Arizona Department of Child
Safety (“DCS”) who took temporary custody of B.P. Mother later admitted
to regularly drinking alcohol to excess and using methamphetamines.

¶3 DCS filed a dependency petition and B.P. was adjudicated
dependent in September 2018. DCS offered Mother a variety of services as
part of the case plan of family reunification, including supervised
visitation, parent aide services, a psychological evaluation, and substance
abuse assessment, treatment, and testing.

¶4 Mother tested positive for methamphetamines and
amphetamines on multiple occasions and was inconsistent in reporting for
drug testing. DCS referred Mother to Terros on three separate occasions
and Mother twice failed to complete the program.

¶5 In January 2019, Mother self-admitted into TLC, the first of
several in-patient treatment facilities, and maintained sobriety until the
end of March. Between March and August 2019, Mother participated in
treatment through Native American Connections but relapsed during the
program, and again immediately upon completing it. Mother next
transitioned to the Sun Valley Services Sober Living House. Despite

1Father’s parental rights were also terminated, but he is not a party to this
appeal.

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missing two drug tests and retracting a hair-follicle sample before it could
be tested, Mother completed the program.

¶6 In July 2019, the juvenile court changed the case plan from
family reunification to severance and adoption. DCS moved to terminate
Mother’s parental rights. The Navajo Nation (the “Nation”) intervened,
participated in court hearings, and located a native adoptive placement
for B.P.

¶7 In February 2020, Mother moved in with a new boyfriend.
During a drug test, and a visit with B.P., Mother had visible bruising.
Mother then moved out of her boyfriend’s home, acknowledging the
relationship was abusive, and into Desert Wellness Behavioral Home.
Since then, Mother has self-reported six months of sobriety and
consistently tested negative for drugs, except for two positive tests for
codeine.

¶8 During the dependency, Mother’s visits with B.P. were
inconsistent. When visitations occurred, the interactions were deemed
mostly appropriate. When Mother missed visits or B.P.’s daily routines
were otherwise disrupted, B.P. reacted negatively by wetting the bed or
exhibiting other behavioral problems.

¶9 In June 2020, the juvenile court held a contested termination
hearing. After taking the matter under advisement, the court severed
Mother’s parental rights on the ground of fifteen months in an
out-of-home placement pursuant to A.R.S. § 8-533(B)(8)(c), and found
severance was in B.P.’s best interests. The Nation did not oppose the
severance.

¶10 This timely appeal followed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the
Juvenile Court 103(A).

DISCUSSION

¶11 We review a severance ruling for an abuse of discretion,
accepting the juvenile court’s factual findings unless clearly erroneous,
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004),
and view the evidence in the light most favorable to sustaining the court’s
ruling, Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App.
2008). Because the juvenile 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,” we will affirm an order terminating parental
rights if reasonable evidence supports the order. 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)).

¶12 “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,” Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and find, by a preponderance
of the evidence, that termination is in the best interests of the child, Kent K.
v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Fifteen months in an out-of-
home placement is one statutory ground authorizing termination. A.R.S.
§ 8-533(B)(8)(c).

¶13 When the child is an enrolled member of an Indian tribe, as
B.P. is here, the Indian Child Welfare Act of 1978 (“ICWA”) also applies.
25 U.S.C. §§ 1901–1963. Termination of an Indian parent-child relationship
additionally requires: (1) proof beyond a reasonable doubt2 that continued
custody of the child by the parent is likely to result in serious emotional or
physical damage to the child; and (2) that active efforts have been made to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that those efforts have
proven unsuccessful. Ariz. R.P. Juv. Ct. 66(C).

I. Fifteen Months Out-of-Home Placement

¶14 The juvenile court may terminate a parent-child relationship
under A.R.S. § 8-533(B)(8)(c) if:

The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order or voluntary placement pursuant to § 8-806,
the parent has been unable to remedy the circumstances that
cause the child to be in an out-of-home placement 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.

¶15 Mother concedes B.P. was in an out-of-home placement for
more than fifteen months and does not dispute that DCS made diligent

2This includes presenting testimony from a qualified expert witness. Ariz.
R.P. Juv. Ct. 66(C).

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efforts to provide appropriate reunification services. Mother instead
argues no reasonable evidence supports the court’s finding that she was
unable to remedy the circumstances which brought B.P. into DCS custody.

¶16 At the time DCS took custody of B.P., DCS alleged Mother
was unable to provide proper and effective parental care due to domestic
violence, incarceration, and substance abuse. In seeking to terminate
Mother’s parental rights, DCS alleged, in part, Mother had failed to
“demonstrate sobriety.” Mother either failed to drug test, or tested
positive for drugs, on numerous occasions over a two-year period. When
Mother was able to achieve periods of sobriety, it was while living in the
structured environment of an in-patient treatment facility. However, there
is little evidence she was able to maintain sobriety while receiving
out-patient treatment. The court also noted a continued pattern of
domestic violence, and inconsistent stable housing. And while the record
does show Mother made some progress in her substance abuse treatment,
including periods of sobriety, both of which the juvenile court
acknowledged and commended, there is reasonable evidence to support
the court’s conclusion that Mother had not remedied her substance abuse
and that there existed a substantial likelihood she would be unable to do
so in the near future. On this record, Mother has failed to show the
juvenile court abused its discretion.

II. Child’s Best Interests

¶17 In conducting the best interests inquiry, the juvenile court
must find that the “child would [either] benefit from a severance or be
harmed by the continuation of the relationship.” Maricopa Cnty. Juv. Action
No. JS-500274, 167 Ariz. 1, 5 (1990).

¶18 Mother contends that termination was not in B.P.’s best
interests because they share a bond and she has made efforts to improve
her ability to parent. While the existence of a bond between a parent and
child is relevant, it is not dispositive. Dominique M. v. Dep’t of Child Safety,
240 Ariz. 96, 98–99, ¶ 12 (App. 2016).

¶19 Further, in making a best interest finding, the juvenile court
must “evaluate the totality of the circumstances.” Id. at 99, ¶ 12. Here, the
court noted that B.P. is adoptable, doing well with the current placement,
and the current placement was “willing to maintain [] cultural connections
and connections with [B.P.’s] biological family,” which had occurred
“throughout the length of the [dependency].” See Audra T. v. Ariz. Dep’t of
Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1988) (indicating two factors the

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court “may properly consider in favor of severance” are “the immediate
availability of an adoptive placement” and “whether an existing
placement is meeting the needs of the child”). The Nation additionally
identified an ICWA compliant placement as a possible adoptive option for
B.P. The court further properly considered potential detriments to B.P. if
the parent-child relationship with Mother continued, including that
“returning [B.P.] to Mother’s care and maintaining her parent-child
relationship would pose the detriment of subjecting [B.P.] to an unstable
situation.” Reasonable evidence supports the juvenile court’s finding that
termination was in B.P.’s best interests.

III. Continued Parental Custody Likely to Result in Serious Emotional or
Physical Damage to the Child

¶20 Where ICWA applies, parental-termination also requires
proof beyond a reasonable doubt that continued custody of the child by
the parent is likely to result in serious emotional or physical damage to the
child. Ariz. R.P. Juv. Ct. 66(C).

¶21 Although the record contains evidence that Mother had
“pretty good interactions” with B.P., it also showed that B.P. struggles
with night terrors and behavioral challenges when Mother is inconsistent
with visitation. Reasonable evidence supports the court’s finding that
“Mother is not stable enough to meet [B.P.’s] basic needs” and that
maintaining Mother’s parent-child relationship “would pose the
detriment of subjecting [B.P.] to an unstable situation.” This evidence
supports the notion that to return B.P. to Mother would likely result in
serious physical or emotional damage to the child. Mother has shown no
abuse of discretion.

IV. Efforts Made to Provide Remedial Services and Rehabilitative Programs
Designed to Prevent the Breakup of the Indian Family Proved
Unsuccessful

¶22 Finally, ICWA requires active efforts in providing remedial
services and rehabilitative programs to prevent the breakup of an Indian
family before terminating a parent-child relationship. Ariz. R.P. Juv. Ct.
66(C). Because Mother does not raise the issue of whether such active
efforts were made, including whether they failed, she has waived that
challenge on appeal. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186
Ariz. 161, 167 (App. 1996) (“Issues not clearly raised and argued in a
party’s appellate brief are waived.”).

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CONCLUSION

¶23 Because Mother has shown no error, the order terminating
Mother’s parental rights is affirmed.

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

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