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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GRACIELA E., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.E., Y.S., R.E., Appellees.

No. 1 CA-JV 20-0336
FILED 4-27-2021

Appeal from the Superior Court in Maricopa County
No. JD529764
The Honorable Cassie Bray Woo, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Eric Devany
Counsel for Appellee Department of Child Safety
 GRACIELA E. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Graciela E. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children, N.E., Y.S., and R.E. For the
following reasons, we affirm.1

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016). In
May 2014, Mother’s six-year-old daughter, N.E., made Y.S., her
13-month-old sister, a bottle using fabric softener rather than powdered
formula. When Mother noticed N.E.’s mistake, she dragged her into her
bedroom by the hair, forced her to lay face down on the bed, and repeatedly
hit her back. At one point, N.E. turned and asked Mother to stop, but
Mother repositioned herself on N.E.’s shoulders, struck her face with “a
good strong hit” leaving a three-inch bruise, and continued to hit the back
of her head. Mother called N.E.’s grandmother to come and care for the
children after the incident. When grandmother noticed N.E.’s facial
contusion, she called the police, who arrested Mother. Mother pled guilty
to child abuse and was placed on three years’ probation, and ordered to
have no contact with N.E.

¶3 In January 2016, staff at N.E.’s school reported that N.E. had
bruises on her forearms and a bite mark. N.E. said that she had bitten herself
because Mother had called her stupid and a moron. Despite Mother’s not
being allowed to have contact with her, N.E. said that she went “back and
forth” between her Mother’s and grandmother’s homes. She also said that
Mother’s boyfriend sexually abused her. Mother told the police that N.E.
was lying, and that N.E.’s grandmother’s boyfriend had touched her. The

1 Each child has a different father, none of which are subject to this
appeal.

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Department took N.E. and Y.S. into care, petitioned for dependency in
February 2016, and the court found the children dependent.

¶4 The Department offered Mother, N.E., and Y.S. a multitude of
psychological and therapy services. It also offered Mother parenting
classes, case-aide services, supervised-visitation, unsupervised visitation,
and three parent-aides. During her first parent-aide service, however,
Mother hit Y.S. in front of the parent-aide and was closed out of the
parent-aide service. Mother completed her initial psychological evaluation
in July 2017. The psychologist expressed concern about her past physical
and sexual trauma and unhealthy relationships and diagnosed her with
borderline intellectual functioning and dependent personality traits.
During the ensuing individual counseling, Mother re-engaged a friendship
with a person she had met while incarcerated and whom she admitted was
a danger to her children.

¶5 At the second parent-aide intake, all of Mother’s parenting
capacities remained diminished. During the second parent-aide service in
January 2018, she gave birth to R.E. The Department removed R.E. from her
care and petitioned for dependency, asserting that she had not completed
treatment related to her abuse of N.E. The trial court found R.E. dependent
and R.E. joined Y.S. and N.E. in the parent-aide service. Mother struggled
to manage all three children and insisted that the parenting techniques that
she had learned were not helpful.

¶6 The Department also provided Mother with supervision-only
and case-aide supervised visits with all three children and provided
unsupervised one-on-one visits with R.E. Mother often cancelled her
unsupervised one-on-one visits with R.E. because she did not have time for
them. A case aide had to intervene so that the children remained safely and
properly supervised, which prompted Mother to again express concern
about her own ability to supervise all the children.

¶7 Family counseling sessions with Mother, N.E., and Y.S. ended
a month after they began because N.E.’s negative behaviors had
dramatically increased, leading a psychologist to recommend against
family counseling for both N.E. and Y.S. The first bonding and
best-interests analysis occurred and the evaluator, Dr. Silberman, opined
that the Department had exhausted services that Mother could receive, that
providing any more services would be futile, and that severance and
adoption should be pursued. The second evaluator, Dr. Mastikian, agreed,
stating that Mother continued to exhibit characteristics similar to known
and active child abusers. Mother sought out her own personal therapist and

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an independent best interests and bonding evaluator, both of whom
suggested immediate reunification and no further evaluations.

¶8 The children’s psychologist diagnosed N.E. with an
intellectual disability and Y.S. with language difficulty and hyperactivity
and opined that severance and adoption was the most appropriate plan for
the children. Based on Mother’s lack of progress over the years and the
results of the bonding and best interests analysis, the Department
petitioned to terminate Mother’s parental rights to N.E. and Y.S. under
A.R.S. § 8–533(B)(2), a parent willfully abused a child, and to terminate
Mother’s parental rights to N.E., Y.S., and R.E. under § 8–533(B)(8)(c),
fifteen months in out-of-home placement.

¶9 The juvenile court began the termination hearing in
November 2019. The Department’s case manager testified that termination
and adoption was in the children’s best interests. R.E. was in adoptive
placement, and while N.E. and Y.S. were not in adoptive placements, two
homes were being assessed for N.E., making adoption likely, and an
adoptive placement had been found for Y.S. She further testified that she
believed N.E. would consent to adoption if termination occurred.

¶10 Dr. Silberman testified that Mother minimized the extent of
N.E.’s abuse, which kept Mother from changing her abusive behavior. He
recommended that the children not be returned to Mother because she was
likely to again abuse the children. After the first day of the hearing, the State
requested and received a continuance because its psychologists had
reviewed current counseling records and requested that Mother receive an
updated psychological evaluation to “assess the progress of therapy and
the extent to which she has been able to put to use the skills that she has
learned in therapy.”

¶11 The Department referred Mother to Dr. Thal for the updated
evaluation. Dr. Thal diagnosed Mother with, among other things,
unspecified intellectual disorder and generalized anxiety disorder. He
concluded that Mother’s combination of borderline cognitive ability, stress
disorder, and inability to adapt to her children’s evolving needs made her
ability to adequately care for and control the children, or any one
individually, “poor” and that her limitations were too major to justify
placing any of her children in her care. He further opined that additional
services would be futile.

¶12 The Department also referred Mother to a third parent-aide
service. The case manager reported that Mother’s parenting capacities

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remained diminished at the intake. The parent-aide reported that at the
midpoint of the service, Mother failed to respond to her children’s needs
and did not recognize that she must make those needs a priority. The report
further stated that Mother had minimal skills to provide for the children’s
basic needs and did not acknowledge her lack of flexibility or adaptability
in caregiving. By June 2020, Mother had not improved and was
unsuccessfully closed out of the parent-aide service.

¶13 The termination hearing resumed in July 2020. The children’s
psychologist testified that Mother’s borderline intellectual functioning
made understanding and implementing parental techniques difficult for
her and that Y.S. and N.E. would be subject to abuse if returned to Mother.
Dr. Thal disagreed with Mother’s psychologist’s opinion that she was not a
threat to commit future abuse, stating that her limited financial and
cognitive resources kept her from adapting to her children’s new needs and
behaviors. He concluded that while Mother greatly loved her children, her
borderline stress tolerance and intellectual disability made caring for the
children likely overwhelming and opined that the children would likely be
subject to abuse or neglect. The Department’s case manager testified that
despite the additional services during the hearing, Mother still struggled to
provide adequate supervision, had not addressed her frustration tolerance,
and had been unable to make realistic plans for childcare.

¶14 Mother testified that she could provide her children stability
and address their needs and that returning them to her care was in their
best interests. She had attended the required meetings for her children,
would not allow grandmother to have contact with the children, and would
implement a safety plan. To address N.E.’s and Y.S.’s sexualized behaviors,
she would not allow the children to sleep in the same room. She further
testified that she would change her work schedule to accommodate the
children’s needs, had looked into childcare options, and had identified
familial support to assist her with childcare.

¶15 The juvenile court terminated Mother’s rights to N.E., Y.S.,
and R.E. under both the fifteen months in out-of-home placement and
willful abuse grounds. The court also found that severance was in the
children’s best interests because continuing the parent-child relationship
would be harmful to them and terminating the relationship would benefit
them. Mother timely appealed.

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DISCUSSION

¶16 Mother argues that the court erred in terminating her rights
and finding that termination was in the children’s best interests. A juvenile
court’s termination determination is reviewed for an abuse of discretion.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004). To
terminate parental rights, the juvenile court must find by clear and
convincing evidence the existence of at least one statutory ground under
A.R.S. § 8–533 and by a preponderance of the evidence that termination
would be in the child’s best interests. A.R.S. § 8–533(B); Ariz. R.P. Juv. Ct.
66(C); Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016).
Because 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 will affirm a termination decision unless no reasonable evidence
supports it, Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012).

I. Termination of Mother’s Parental Rights

¶17 To terminate parental rights for fifteen months in an out-of-
home placement, the juvenile court must find clear and convincing
evidence that (1) the Department made diligent efforts to provide
appropriate reunification services, (2) the child has been in an out-of-home
placement for a cumulative total period of 15 months or longer pursuant to
court order, (3) the parent has been unable to remedy the circumstances that
caused the child to be in an out-of-home placement, and (4) a substantial
likelihood exists that the parent will be incapable of exercising proper and
effective parental care and control in the near future. A.R.S. § 8–533(B)(8)(c).

¶18 Reasonable evidence supports the court’s order terminating
Mother’s parental rights. The children have been in an out-of-home
placement for more than fifteen months and the Department diligently
offered Mother services for more than four years. Despite the services,
Mother had failed to make the necessary progress to care for the children
and her ability to do so in the near future is poor. Reasonable evidence
demonstrates any further services would be futile.

¶19 Mother argues, however, that insufficient evidence supports
the juvenile court’s findings that she was provided adequate services,
especially for R.E. Contrary to Mother’s argument, however, the
Department diligently offered Mother additional services to help her learn
to parent R.E., but she did not fully participate in them. Furthermore,
Dr. Silberman and Dr. Thal testified that any further services would have

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been futile. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235
¶¶ 14–15 (App. 2011) (stating that the Department is not required “to
provide every conceivable service or to ensure that a parent participates in
each service it offers” and that it is “not required to provide services that
are futile”).

¶20 Mother also argues that the Department did not meet its
burden that she had failed to remedy the circumstances that caused the
children to be in an out-of-home placement and that a substantial likelihood
existed that she would be incapable of exercising proper and effective
parental care and control in the near future, especially with R.E. She argues
that her best interests and bonding evaluator opined that she had
ameliorated any real or perceived parental shortcomings and that her
personal therapist testified that she had addressed her history of abuse and
its effect on her parenting. This argument, however, requires us to reweigh
the evidence before the trial court, which we will not do. See Williams v.
King, 248 Ariz. 311, 317 ¶ 26 (App. 2020). Reasonable evidence supports the
juvenile court’s determination. Because we find that the court did not abuse
its discretion by terminating Mother’s parental rights under the 15 months’
out-of-home placement ground, we need not address the other grounds for
termination and correlating arguments. See Jennifer S., 240 Ariz. at 286 ¶ 15.

II. Best Interests Findings

¶21 If the juvenile court finds grounds for termination, it then
must determine if termination of the parent-child relationship is in the
children’s best interests by a preponderance of the evidence. A.R.S.
§ 8–533(A). The Department can establish best interests either by showing
that the child will benefit from termination of the relationship or that the
child would be harmed by continuing the parental relationship. Oscar O.,
209 Ariz. at 334 ¶ 6. Relevant factors include whether the current placement
is meeting the child’s needs, an adoption plan is in place, and the child is
adoptable. Demetrius L., 239 Ariz. at 3–4 ¶ 12. The court presumes that the
interest of the parent and child have diverged once one of the statutory
grounds for termination has been proved. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 150 ¶ 12 (2018).

¶22 The juvenile court considered the totality of the circumstances
and determined that the children would benefit from the termination and
that the children would have incurred a detriment if reunited with Mother.
Both Y.S. and N.E. acted out negatively after family counseling with
Mother. Dr. Thal and the children’s psychologist opined that the children
would suffer harm if returned to Mother’s care because she would subject

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the children to further physical abuse and unhealthy relationships. The case
manager testified that R.E. was in an adoptive placement and that the
Department had an adoptive home ready for Y.S. She also testified that the
Department was conducting two home studies and that the Department
would likely find an adoptive placement for N.E. from one of those two
homes. Evidence supports the juvenile court’s determination.

¶23 Mother argues, however, that the Department failed to prove
that N.E. would be adopted since consent is a prerequisite for adoption
when a child is older than 12, citing A.R.S. § 8–106(A)(3), and that the
Department failed to show how N.E. would be at risk for harm if her rights
were not terminated. The Department’s case manager testified, however,
that based on her conversations with N.E., N.E. would likely consent to
adoption after termination, and we will not re-weigh this testimony. See
Oscar O., 209 Ariz. at 334 ¶ 4. Moreover, the record supports the finding
that N.E. would suffer a detriment if she returned to Mother’s care, which
independently supports the juvenile court’s finding that termination was in
N.E.’s best interest. Id. at 334 ¶ 6.

¶24 Mother also argued that while R.E. was in an adoptive
placement and the Department had an adoptive placement ready for Y.S.,
the record did not support a finding that either would suffer a detriment in
Mother’s care. Both arguments ask the Court to re-weigh the evidence,
which we will not do. See id. at 334 ¶ 4. Moreover, the juvenile court found
that both R.E. and Y.S. would benefit from the severance, which Mother
does not refute in her brief, and the Department was not required to also
show that they would suffer a detriment if returned to Mother. See id. at 334
¶ 6.

CONCLUSION

¶25 For the foregoing reasons, we affirm.

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

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