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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BONNIE S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.S., N.H., Appellees.

No. 1 CA-JV 21-0129
FILED 11-16-2021

Appeal from the Superior Court in Maricopa County
No. JD36834
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 BONNIE S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.

C R U Z, Judge:

¶1 Bonnie S. (“Mother”) appeals the superior court’s order
terminating her parental relationship to her children C.S. and N.H. For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of C.S., born January 2014, and
N.H., born June 2018. Christopher Hanna (“Father”)1 is the biological father
of N.H. The identity of C.S.’s biological father is unknown. In 2014 and
2018, the Nevada Division of Child and Family Services received reports of
substance abuse and neglect, but the allegations were never substantiated.
Mother and Father also had multiple interactions with the Nevada police
department because of domestic violence. The family relocated to Arizona
in October 2018 and was homeless or living out of motels.

¶3 In November 2018, the Department of Child Safety (“DCS”)
received a report that police were called to Mother’s motel room where they
located heroin and drug paraphernalia within the children’s reach. The
following month, DCS received reports that Mother and Father were
leaving the children with strangers, the family had no place to stay, and
Father was abusing Mother and C.S.

¶4 DCS filed a dependency petition in December 2018, alleging
the children were dependent as to Mother due to neglect and substance
abuse. DCS stated Nevada was the children’s home state but invoked
temporary emergency jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), Arizona Revised Statutes
(“A.R.S.”) section 25-1034. When the children came into DCS custody, they
were dirty, developmentally delayed, and diagnosed with trauma
disorders. C.S. was sick for the first month he was placed in DCS’s care and
suffered from a double ear infection and asthma. N.H. was hospitalized for

1 Father is not a party to this appeal.

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Decision of the Court

two weeks and diagnosed with norovirus, bronchitis, rhinovirus,
pneumonia, E-coli, and RSV.

¶5 DCS offered Mother substance-abuse treatment through
Terros, drug testing through PSI, transportation, case aides, counseling, a
psychological consultation, and visitation. However, Mother failed to fully
participate in DCS services. Mother did not submit to drug testing through
PSI, and she refused to participate with Terros. Mother was inconsistent
with attending her visits and often failed to call or show up. Three case-
aide referrals were closed out unsuccessfully due to Mother’s failure to
participate.

¶6 Mother sporadically received treatment from a methadone
clinic over a several-month period in 2019. Mother submitted three drug
tests to the clinic and tested positive for substances each time. The clinic
additionally recommended that Mother regularly participate in counseling
and other services, but she failed to do so.

¶7 Mother and Father returned to Nevada in October 2019. DCS
provided Mother with two out-of-state referrals for drug testing and
provided her a list of substance-abuse treatment and counseling services
that were covered by her insurance. But again, Mother failed to engage.

¶8 In November 2019, DCS filed a motion to terminate Mother’s
parental rights, the superior court granted the motion following a hearing,
and Mother timely appealed. On appeal, DCS filed a notice of confession
of error, stating the superior court lacked permanent jurisdiction under the
UCCJEA. This court agreed, and the case was remanded to the superior
court to determine its jurisdiction and for further proceedings consistent
with that jurisdiction. On remand, the superior court issued an order that
stated the “prior dependency orders will become a final determination and
Arizona will become the home state” if the parents did not file “family court
orders in another jurisdiction” within a month. Neither Mother nor Father
filed court orders in Nevada. Accordingly, a month later, the superior court
issued an order finding that it had ongoing jurisdiction and Arizona was
the children’s home state.

¶9 In September 2020, DCS filed another motion to terminate
Mother’s parent-child relationship based on substance abuse, six months’
time-in-care as to N.H., and nine months’ time-in-care as to C.S. DCS also
filed a motion to suspend visitation, arguing visits “would subject the
children to potential harm to their physical, mental, moral or emotional
health.” DCS noted the parents failed to communicate with DCS, had not

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Decision of the Court

engaged in services, and had not seen the children in over a year. The court
granted DCS’s motion to suspend visitation.

¶10 In December 2020, Mother began engaging in substance-
abuse treatment and domestic-violence counseling with Father through an
agency in Nevada. Mother also submitted two drug tests to the agency,
which were allegedly negative for substances, though no documentary
proof was submitted to the court. Three weeks later, the termination
adjudication hearing was held, and the superior court granted DCS’s
motion to terminate Mother’s parental rights to C.S. and N.H.

¶11 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶12 The right to custody of one’s children is fundamental, but it is
not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-
12 (2000). The superior court may terminate a parent-child relationship if
it finds clear and convincing evidence of at least one statutory ground for
termination under A.R.S. § 8-533(B), and that termination is in the child’s
best interests. Id. at ¶ 12. “The juvenile court, as the trier of fact in a
termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002). Accordingly, we accept the court’s factual findings if
reasonable evidence supports them and will affirm its termination ruling
unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9
(2016).

I. DCS Properly Terminated Mother’s Rights Based on Substance
Abuse and Time in Care.

¶13 Mother argues her due process rights have been violated
because the superior court relied on domestic violence as a basis for
termination even though it was not alleged in DCS’s termination motion.
Mother was receiving domestic-violence counseling throughout the
dependency and was aware this was an area of concern for DCS.
Additionally, at the termination hearing, both DCS and Mother’s counsel
introduced evidence regarding domestic violence and domestic-violence
services, and Mother did not object. See Brenda D. v. Dep’t of Child Safety,
243 Ariz. 437, 447, ¶ 37 (2018) (when a parent fails to object to alleged due
process violations in the superior court, we review only for fundamental
error). As a result, the superior court briefly discussed domestic violence

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Decision of the Court

between Mother and Father in its termination ruling as evidence in support
of the time-in-care ground. Regardless, the superior court need only find
one statutory ground to support a termination, and Mother’s parental
rights were also terminated on the ground of substance abuse, which was
raised in DCS’s motion to terminate.

¶14 Under A.R.S. § 8-533(B)(3), the superior court must find that
Mother’s drug abuse is chronic, it hinders her ability to discharge her
parental responsibilities, and it will continue for a prolonged indeterminate
period. Mother enrolled in a methadone clinic in February 2019, where she
admitted to using opiates every day for the past fifteen years and heroin for
about two years. Mother submitted three drug tests to the clinic in March,
July, and September 2019, and tested positive for substances each time,
including fentanyl, methamphetamines, opiates, amphetamines, codeine
and morphine. As a result of Mother’s substance-abuse problems, she was
unemployed and homeless or living out of motels with the children.
Mother allegedly left the children in the care of strangers, sometimes for
days at a time, so she could use drugs. Father claimed Mother gave the
children heroin and marijuana to make them fall asleep. When DCS took
custody of the children, they were dirty, developmentally delayed, and
suffering from multiple illnesses and trauma.

¶15 In determining whether a parent would be able to overcome
her substance abuse and “be in a position to parent the child in the
foreseeable future,” the court considers “the treatment history of the
parent.” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 378, ¶ 25 (App.
2010) (citation omitted). When the parent has been unable to “experience
sustained sobriety in a noncustodial setting, and establish the essential
support system to maintain sobriety, there is little hope of success in
parenting.” Id. (citation omitted). Mother’s demonstrated sobriety began
three weeks before the termination hearing, and she “has been unable to
rise above [her] addiction in a non-custodial and unstructured setting.” Id.
at 379, ¶ 29. Additionally, during trial, Mother denied having a substance-
abuse problem, and she was not forthcoming about her drug abuse,
testifying she had only used fentanyl and heroin once or twice as a teenager.
Mother’s long history of substance abuse and her failure to be forthcoming
throughout the dependency and termination proceedings raises concerns
about her ability to overcome her drug addiction and appropriately parent
her children.

¶16 Mother does not challenge the superior court’s findings of
substance abuse, and the record supports the termination finding on this

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ground. The court did not err in terminating Mother’s parental relationship
to C.S. and N.H.

II. DCS Provided Appropriate Reunification Services.

¶17 Before terminating parental rights, DCS must prove by clear
and convincing evidence that it made a reasonable effort to preserve the
family and provide reunification services. Mary Ellen C. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 185, 192-93, ¶¶ 33, 42 (App. 1999). Mother argues DCS
did not provide her meaningful reunification services, but she failed to raise
any concerns to the superior court prior to the termination hearing. A
parent who fails to “voice their concerns about services to the juvenile court
in a timely matter,” is precluded from challenging the court’s finding that
DCS made reasonable efforts to provide reunification services. Shawanee S.
v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶ 16 (App. 2014).

¶18 Nevertheless, DCS made a reasonable effort to provide
Mother with appropriate reunification services. Mother alleges she did not
have valid identification to participate in drug testing through PSI, and DCS
refused to assist her in obtaining identification. However, DCS denied that
Mother ever requested assistance in obtaining identification, and Mother
did not need identification to participate in random drug testing. A DCS
case manager created an account for Mother through PSI’s database and
uploaded a picture of her, which allowed Mother to participate in random
drug testing without necessitating any other form of photo identification.

¶19 Mother argues she was not a permanent resident of Arizona,
and so it was difficult for her to obtain insurance and housing. At trial,
there was testimony that Mother did have insurance, and there was no
evidence presented that Mother was unable to participate in any of the
offered services due to a lack of insurance. As for housing, Mother was
placed in a domestic-violence shelter through Terros in December 2018, but
two days later she voluntarily left the shelter and reunited with Father.
DCS informed Mother that it could not provide her with a housing subsidy
until she addressed her substance-abuse issues, which she never did.

¶20 Mother also argues that because she was not a resident of
Arizona, it was difficult to participate in services after returning to Nevada.
We first note that Mother chose to return to Nevada about a year after the
dependency was initiated. She was given the opportunity to have this case
and the children moved to Nevada, but Mother did not make the requisite
filings to do so. Additionally, for nearly a year of the dependency, Mother
lived in Arizona, and DCS provided her with drug testing, substance-abuse

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treatment, domestic-violence counseling, visitation, and transportation.
After Mother moved to Nevada, DCS was not able to make out-of-state
referrals for counselors and substance-abuse treatment. However, DCS did
provide a list of substance-abuse treatment centers covered under Mother’s
insurance and directed Mother to self-refer. DCS also referred Mother to
out-of-state drug testing on two separate occasions.

¶21 DCS “is not required to provide every conceivable service or
to ensure that a parent participates in each service it offers.” Maricopa Cnty.
Juv. Action No. JS–501904, 180 Ariz. 348, 353 (App. 1994). Here, DCS
provided “[M]other with the time and opportunity to participate in
programs designed to help her become an effective parent.” Id. However,
Mother did not fully engage with DCS or participate in the offered services
for two years, and she did not participate in substance-abuse treatment and
counseling until three weeks before the termination hearing. A parent’s
“failure or refusal to participate in the programs and services [DCS] offered
or recommended does not foreclose termination of her parental rights.” Id.
We find no error.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

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

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