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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FELISHA S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.S., N.S., A.S., Appellees.

No. 1 CA-JV 20-0374
FILED 5-27-2021

Appeal from the Superior Court in Maricopa County
No. JD 22881
The Honorable Robert I. Brooks, Judge

AFFIRMED

COUNSEL

Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee, Department of Child Safety
 FELISHA S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

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

C A M P B E L L, Judge:

¶1 Felisha S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children. Mother argues that the court
erred by finding she had been unable to remedy the circumstances causing
her children to be removed from her care and that she would be unable to
appropriately parent in the near future. Because the record supports the
court’s findings, we affirm.

BACKGROUND

¶2 Mother and Johnny S. (“Father”) have four children, Arthur
born in 2012, Rob born in 2013, Molly born in 2015, and Amber born in
2016.1 In 2012, Mother tested positive for marijuana while she was pregnant
with Arthur. The Department of Child Safety (“DCS”) responded and, after
making contact, became concerned not only about Mother’s drug use, but
also that Father may have sexually abused Mother by initiating a sexual
relationship while Mother was still a minor, and that the pregnancy
occurred prior to Mother’s 18th birthday. Father was also married to
Mother’s biological mother. Once Arthur was born, DCS removed him from
the parents’ home and placed him with Mother’s adoptive mother
(“Grandmother”). Although Mother’s parental rights to Arthur do not
appear to have been severed, Arthur is currently in Grandmother’s care.

¶3 After Rob, Molly, and Amber were born, DCS received
reports that Mother and Father were using drugs, leaving the children
unsupervised, and abusing the children. Molly had been hospitalized on
two separate occasions, first after being bitten on the face by a dog, and
second after ingesting Father’s morphine pills that had spilled on the floor.

1We use pseudonyms for the children throughout to protect their privacy
and identity. Father and Arthur are not parties to this appeal.

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On another occasion, Rob was left outside unsupervised and climbed onto
the roof of Father’s condo.

¶4 Around 2017, Mother and Father separated. In May 2018,
after spending time with Father, Molly returned with a circular cut on her
face. Molly reportedly told Grandmother that Father had thrown a cup at
her. Father asserted that the injury occurred while vacuuming, claiming
that the vacuum hose accidentally became attached to Molly’s face while
operating and created the injury through suction.

¶5 A few days later, police responded to a report that Father was
abusing Rob, Molly, and Amber and using drugs in their presence. Upon
arrival, the complainant informed police that Father and the children were
living out of a shed and vehicle in the backyard of her residence and had
no food or running water. The officers observed that the children were
wearing “extremely dirty clothes,” discovered a bucket of feces, and
noticed what appeared to be sleeping mats and the children’s belongings in
the shed. Father told police that he and the children were staying in the
house, but the complainant stated they were not. While exiting the
complainant’s residence, the officers noted that the place was very dirty,
with trash everywhere, and had bed bugs according to the complainant.
Father was arrested on suspected child neglect and DCS took the children
into care. At the time there were also concerns about Mother, as Father had
told police Mother was homeless and using drugs. DCS confirmed this
information by contacting Mother, who told DCS she was looking for
housing for herself and the children. She claimed to be unaware that the
children were at risk of neglect and abuse while staying with Father.

¶6 The children were placed with Grandmother, and DCS filed a
dependency petition concerning all three children. In September 2018, the
children were adjudicated dependent, and the court set a case plan for
family reunification. DCS began offering the Parents reunification services.
At some point, Mother moved in with her boyfriend. However, DCS
doubted this would be a suitable placement for the children, suspecting
Mother was lying about how many people were living in the apartment.

¶7 Father received numerous referrals to substance-abuse
testing, substance-abuse counseling, a psychological evaluation, parent-
aide services, supervised visits, and transportation. However, he missed
many scheduled drug tests, and tested positive for, among other things,
methamphetamine, cocaine, and heroin when he did test. Father also
exhibited alarming behavior during supervised visitations with his
children, including referring to Molly as a “sexy little girl,” and using

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abusive language towards the parent aide. After one visit in which Father
had to be redirected, Father sent a picture of a gun to the parent aide with
message saying that he “couldn’t take it anymore,” and suggested he might
commit suicide.

¶8 Mother was also offered a variety of services, including
substance-abuse testing, substance-abuse counseling, a psychological
evaluation, individual counseling, parent-aide services, visitation, and
transportation to and from service appointments. Mother repeatedly tested
positive for marijuana, but eventually obtained a medical marijuana card in
January 2019. During the prior dependency with Arthur, Mother was
offered drug counseling. As part of this dependency, Mother was
terminated twice from the drug counseling program, but was able to
complete services after a third attempt. There is dispute over whether
Mother participated in after care or a maintenance plan. Mother failed to
complete a parent-aide program, having been terminated twice for lack of
engagement and inability to improve some parenting capacities.

¶9 Mother was referred for a psychological evaluation but did
not show up for the first three appointments. On the fourth attempt, Mother
completed the psychological evaluation with Dr. Kelly Rodriguez.
Dr. Rodriguez found that Mother lacked insight into “the impact of her
behaviors,” and struggled with identifying or acknowledging safety threats
to the children. Dr. Rodriguez recommended individual counseling to
address these issues. However, Mother did not complete this treatment.

¶10 In July 2020, DCS petitioned to sever Mother and Father’s
parental rights to Rob, Molly and Amber. During trial, the State presented
evidence of Father’s drug use and the problematic behaviors exhibited
during visitation. Nonetheless, Mother testified that she did not think
Father posed a risk to the children and would not see a problem with letting
him have access to the children. Mother testified that she was currently
using marijuana one or two times a day. She also testified that she was
working at Subway and was still living with her boyfriend. She claimed
that she and her boyfriend lived there alone, and disputed DCS’s suspicion
that there were random people staying in her apartment. The DCS case
manager testified to Mother’s lack of engagement and communication,
although Mother blamed the poor communication on DCS.

¶11 Following trial, the superior court severed Mother’s parental
rights on the ground of fifteen months’ out-of-home placement pursuant to
A.R.S. § 8-533(B)(8)(c). Mother timely appealed.

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DISCUSSION

¶12 We view the evidence and reasonable inferences therefrom in
the light most favorable to sustaining the superior court’s termination
order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
As the trier of fact, the superior 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). This court will not, therefore, reweigh the evidence. Jordan C.,
223 Ariz. at 93, ¶ 18. We will affirm a termination order supported by
reasonable evidence. Id.

¶13 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). But even fundamental rights are not absolute. Id. To
terminate a parent’s parental rights the superior court must find at least one
statutory ground under A.R.S. § 8-533 by clear and convincing evidence,
A.R.S. § 8-537(B), and by a preponderance of evidence that termination is
in the child’s best interests. Kent K., 210 Ariz. at 288, ¶ 41.

¶14 When proceeding under A.R.S. § 8-533(B)(8)(c), the superior
court may terminate a parent’s rights if it finds that: (1) “[t]he 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 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.” Additionally, DCS is
required to prove that it made diligent efforts to provide the parent
appropriate reunification services. A.R.S. § 8-533(B)(8). In making that
determination, the court must consider the availability of the reunification
services offered and the parent’s participation in services. A.R.S. § 8-533(D).

¶15 On appeal, Mother challenges the superior court’s findings
that she has been unable to remedy the circumstances leading to out-of-
home placement, and that she would be unable to parent in the near future,
arguing the record does not support the court’s conclusions.2

2Mother does not challenge the findings that the children have been in care
for fifteen months, that DCS diligently provided reunification efforts, or
that severance was in the children’s best interest.

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I. Marijuana Use

¶16 The court found that Mother’s “ongoing dependence on
marijuana every day continues to prevent the children from returning to
her care.” The court noted Mother’s troubled history with the illegal use of
marijuana, and inferred that her misuse was a contributing factor to the past
incidences of abuse and neglect.

¶17 Mother argues that the superior court erred in taking her
daily marijuana use into consideration. First, Mother asserts that her use of
medical marijuana is protected by the Arizona Medial Marijuana Act
(AMMA), which states:

No person may be denied custody of or visitation or
parenting time with a minor, and there is no presumption of
neglect or child endangerment for conduct allowed under this
chapter, unless the person’s behavior creates an unreasonable
danger to the safety of the minor as established by clear and
convincing evidence.

A.R.S. § 36-2813(D) (emphasis added). Mother eventually obtained a valid
medical marijuana card, and asserts she was using marijuana to help with
pain in compliance with the AMMA. Mother further contends that the
record does not show her use created an “unreasonable danger,” as
mentioned in § 36-2813(D).

¶18 However, the court did not sever Mother’s parental rights
based solely on her marijuana use. In fact, the court went so far as to
recognize that Mother was not required to eliminate use of marijuana to be
a fit parent. Instead the court merely considered Mother’s current, daily
marijuana use as one factor, in combination with her inability to protect the
children and recognize safety concerns, engage in appropriate services, and
provide a safe environment for her children to live. All of which culminated
in preventing the children from being returned to her care.

¶19 Mother also contends that the record contains no evidence
showing Mother’s use of medical marijuana affected her ability to parent.
She notes that DCS was concerned about “where [Mother] kept her medical
marijuana, if she would use it around the children, or if she used too much.”
However, she argues that there is no evidence that supports any of these
concerns. In fact she contends there is evidence to the contrary, pointing out
that she was educated on substance abuse through Terros, and citing her
own testimony that she did not believe a person under the influence of
drugs should be watching children.

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¶20 However, Mother’s marijuana use was a concern from the
beginning of DCS’s involvement. Mother tested positive for marijuana
during her first pregnancy, and her marijuana use was the reason her oldest
child was removed from her care in 2012. She admitted to using marijuana
prior to obtaining a medical marijuana card and her illegal use of the
substance occurred from 2012 until she obtained her medical marijuana
card in 2019. Based on lack of drug testing and some positive tests, it can be
inferred that Mother continued to use marijuana illegally for six months
after the second dependency was filed. She was inconsistent in drug testing
throughout the dependency. Although mother was able to complete drug
counseling, this was only after three attempts during which her use of
marijuana continued. Given Mother’s history of marijuana abuse, her
difficulty adhering to drug counseling and testing, and her current daily
use, it was reasonable for the superior court to infer Mother was exceeding
her therapeutic dosage.

¶21 Additionally, the incident where her daughter ingested
morphine pills that had been spilled on the floor, suggested Mother lacked
the ability to properly supervise and store drugs in a manner that did not
present a safety concern for the children.

¶22 Given Mother’s history of illegal marijuana use and the
inappropriate storage of drugs in her residence, it was permissible for the
court to consider Mother’s continuing daily use a factor preventing
reunification.

II. Mother’s Ability to Protect Children from Father

¶23 As mentioned, the court also found that Mother’s inability to
recognize the danger Father posed to the children to be a factor keeping the
children out of her care. The court explained that while it was apparent
Father was actively using drugs, Mother still believed Father was a safe and
capable parent. The court also found that “Mother’s inability to recognize
Father’s inappropriateness, and her minimization of his violent tendencies,
places the children at risk of harm in her care.”

¶24 Mother argues these concerns are too speculative to support
the court’s finding that she had been unable to remedy the circumstances
leading to out-of-home placement. To support her argument, Mother points
to her own trial testimony asserting she did not know Father had abused or
neglected the children when the case began, or that he used illegal drugs.
She argues that she fully acknowledged that the condition the children were
in when removed from Father was concerning, and that she promised to

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protect the children if Father were to abuse drugs, or otherwise prove
himself a danger.

¶25 However, Mother also testified at trial that Father was a good
parent, and that she did not believe Father had a drug problem. Further,
after hearing testimony from the DCS case manager regarding Father’s
drug use and inappropriate behaviors during visitation, Mother testified
that she did not believe Father posed a safety risk to the children and would
not see a problem with letting him see the children. Despite her testimony
that she would protect her children if she discovered Father proved
dangerous, her inability to recognize the current danger Father presents to
the children continues to hinder her ability to protect them. The court went
on to find that, due to her inability to recognize the harm Father poses to
the children, Mother would be unable to successfully parent in the near
future.

¶26 The court also cited Mother’s failure to complete parent aide
classes and Dr. Rodriguez’s guarded prognosis as additional reasons
supporting its conclusion, and noted that Mother refused the counseling
services Dr. Rodriguez had recommended. Mother admits that she did not
complete parent aide classes and that the psychologist gave a guarded
prognosis. She argues, however, this evidence does not specifically
demonstrate she was unable to protect the children from Father. Mother
also explains that she did not want to participate in further counseling
because she had already completed drug counseling. On appeal, she argues
that she was validly confused about what counseling services she was
required to complete.

¶27 We are not persuaded. Dr. Rodriguez specifically
recommended counseling to help Mother safely parent her children. Even
if Mother was confused about what services were required, such confusion
was likely the result of Mother’s lack of cooperation and communication.

¶28 On this record, reasonable evidence supports the superior
court’s conclusion that Mother lacked the ability to protect her children
from Father, that this was a barrier to reunification, and would be a
persistent problem rendering Mother unable to appropriately parent in the
foreseeable future.

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Decision of the Court

CONCLUSION

¶29 Reasonable evidence supports the juvenile court’s findings
that Mother has not remedied the circumstances causing her children to be
taken from her care and would be unable to appropriately parent in the
near future. We affirm the termination of the parental relationship.

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

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