Felicia S., Robert S. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FELICIA S., ROBERT S., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, A.S., P.S., Appellees.

No. 1 CA-JV 22-0069
FILED 10-27-2022

Appeal from the Superior Court in Maricopa County
No. JD531766
The Honorable Jeffrey A. Rueter, Judge

AFFIRMED

COUNSEL

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

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Felicia S.

The Huff Law Firm, Tucson
Special Counsel for Arizona Office of the Attorney General
By Daniel R. Huff, Laura H. Huff, Michelle Nimmo
Counsel for Appellee Department of Child Safety
 FELICIA S., ROBERT S. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

G A S S, Vice Chief Judge:

¶1 Mother, Felicia S., and father, Robert S., appeal the superior
court’s order terminating their parental rights to their two biological
children, A.S. and P.S. By the time the superior court terminated parents’
rights, the children were 4 and 5 and had been out of parent’s home for 44
months. Because reasonable evidence supports the order, we affirm.

FACTUAL AND PROCEDURAL HISTORY

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

¶3 In June 2018, law enforcement and the Department of Child
Safety (DCS) investigated a domestic violence incident involving mother
and father, resulting in mother’s arrest. The incident occurred in the
children’s presence. During DCS’s investigation, father tested positive for
cocaine, marijuana, and benzodiazepine.

¶4 DCS took temporary custody of the children and filed a
dependency petition. As to both parents, DCS alleged domestic violence
and failure to provide safe and stable housing. As to mother alone, DCS
alleged failure to protect the children from father’s erratic behavior. As to
father alone, DCS alleged substance abuse. Both parents pled no contest to
the dependency, and the superior court found the children dependent. The
superior court adopted a case plan of family reunification.

¶5 DCS provided both parents parent-aide services, individual
counseling with a domestic violence component, substance-abuse
assessment and treatment, and drug testing. Both parents also needed to
maintain employment and safe and stable housing. Throughout the
dependency, neither mother nor father complied nor demonstrated an
ability to correct the circumstances leading to the dependency.

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¶6 During the dependency, both parents engaged in significant
domestic violence resulting in criminal convictions. For mother, in
September 2018, police arrested mother and she pled guilty to aggravated
assault. The superior court put her on probation for the June 2018 domestic
violence incident. In October 2021, a warrant was issued for mother’s arrest
when she failed to attend a probation hearing relating to the September
2018 incident. For father, in October 2018, police arrested father for criminal
damage and for violating the order of protection mother had against him.
Father pled guilty to aggravated assault and the superior court put him on
probation for the same. Though parents divorced in November 2018, they
maintained contact resulting in incidents of domestic violence.

¶7 The parents also continued abusing substances. Early on, the
parents did not actively engage in substance-abuse testing or counseling. In
July, September, and November 2018, father tested positive for alcohol, at
which point he stopped testing. In July and August 2018, mother tested
positive for alcohol, at which point she stopped testing. In December 2019,
mother tested positive for methamphetamine. DCS referred mother to
TERROS for substance-abuse treatment, but mother did not participate. In
September 2020, mother again tested positive for methamphetamine.

¶8 Father also engaged in criminal activity evidencing ongoing
substance-abuse. In March 2019, police arrested father for shoplifting and
possession of drugs and drug paraphernalia. In August 2019, father
possessed drug paraphernalia containing methamphetamine residue when
police arrested him on multiple warrants. In January 2020, police arrested
father yet again and charged him with possession and use of
methamphetamine. In April 2021, father started substance-abuse treatment
but participated inconsistently. DCS also referred father to TERROS for
substance-abuse treatment, but father did not participate.

¶9 Given parents’ lack of progress, in August 2019, the superior
court changed the case plan to termination and adoption, and DCS moved
to terminate their rights. In March 2022, after a two-day trial, the superior
court terminated both parents’ rights. Both parents timely appealed. This
court has jurisdiction under article VI, section 9, of the Arizona
Constitution, and A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1.

ANALYSIS

¶10 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). The superior
court may sever a parent’s rights if clear and convincing evidence

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establishes at least one statutory ground. Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12 (2000); A.R.S. §§ 8-533.B. The superior court
must also find by a preponderance of the evidence termination serves the
children’s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).
This court reviews the superior court’s decision on a petition to terminate
parental rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Because the superior court “is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and 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) (citation omitted).

I. Reasonable evidence supports the statutory grounds for
terminating both parents’ rights.

¶11 The superior court terminated mother’s parental rights under
15-months’ time in care (A.R.S. § 8-533.B.8(c)) and father’s parental rights
under 9-months’ and 15-months’ time in care (A.R.S. §§ 8-533.B.8(a), (c)).
Because we conclude reasonable evidence supports the 15-months’ time in
care ground for both parents, we need not address the 9-months’ time in
care ground as to father.

¶12 Under A.R.S. § 8-533.B.8(c), the superior court may terminate
parental rights when the child has been in an out-of-home placement for a
cumulative period of 15 months or longer, DCS has made a diligent effort
to provide appropriate reunification services, the parent has been unable to
remedy the circumstances causing the child to be in an out-of-home
placement, and it is substantially likely the parent will not be able to
exercise proper and effective parental care in the near future. The superior
court considers “those circumstances existing at the time of the
[termination] that prevent a parent from being able to appropriately
provide for his or her children.” Marina P. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 326, 330, ¶ 22 (App. 2007) (quotation omitted).

A. Reasonable evidence supports terminating mother’s rights
under the 15-months’ time in care ground.

¶13 Mother argues DCS did not prove the 15-months’ time in care
ground because: (1) she “successfully completed the majority of the
services” DCS offered; (2) DCS did not evaluate her ability to parent after
she moved to Show Low during a break in the termination trial; (3) DCS
did not prove she would be incapable of parenting the children in the near

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Decision of the Court

future; and (4) the superior court “erred factually in concluding” she had to
work with Chrysalis for domestic violence counseling under her probation.

¶14 As to mother’s first point, despite mother’s efforts, reasonable
evidence shows the services mother completed did not change her
behaviors or her likelihood of being able to effectively parent the children.
DCS provided mother an array of reunification services, including
parent-aide services, individual counseling with a domestic violence
component, substance-abuse treatment, drug testing, and psychological
evaluations. Though mother engaged in and successfully completed many
services, she did not complete them all. For 15-months’ time in care, the
superior court does not evaluate a parent’s attempts at remedying
circumstances causing the children to be in an out-of-home placement but
instead evaluates the parent’s ability to remedy those circumstances. See
A.R.S. § 8-533.B.8(c).

¶15 The evidence of mother’s non-compliance with drug testing
supports the superior court’s conclusion she would not be able to remedy
those issues in the near future. In 2018, mother tested positive until she
stopped testing. When mother tested again in late 2019, she tested positive
for methamphetamine. In September 2020, mother again tested positive for
methamphetamine. DCS referred mother to substance-abuse treatment
through TERROS multiple times, but mother failed to complete the
program. At trial, mother testified she had been sober for five months, but
she missed multiple drug tests during those five months. Even accepting
mother’s alleged five months of sobriety leading up to the termination trial,
the evidence still reasonably supports the conclusion it is “too little, too
late,” especially after a long history of substance abuse. See Maricopa Cnty.
Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994).

¶16 Though mother completed counseling with a domestic
violence component, her behavior evidenced ongoing issues affecting her
ability to parent in the near future. Mother and father remained in contact
even after they divorced and after she moved to Show Low. And their
ongoing contact resulted in incidents of domestic violence.

¶17 As to mother’s second point, her belated move to Show Low
during a break in the termination trial did not compel DCS to make a last-
minute reassessment. It did not, somehow, mean DCS had to start over. She
moved more than four years into the dependency. Her move did not
remedy any circumstances at issue. And as discussed above, the evidence—
such as her continuing contact with father even after the move—suggests it
would not. Further, at the time of trial, mother had an active warrant out

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for her arrest because of probation violations, calling into question her
ability to provide stable housing in the future.

¶18 As to mother’s third point, she admittedly made positive
steps during the 44 months leading up to the trial. Those improvements,
however, do not establish the superior court erred in concluding mother
would be incapable of providing effective parental care in the near future.
See id. Indeed, as discussed above, the evidence is to the contrary.

¶19 As to mother’s fourth point, any misstatement about
Chrysalis is immaterial to whether DCS met its burden by providing
mother “the time and opportunity to participate in programs designed to
help her become an effective parent.” See Maricopa Cnty. Juv. Action No.
JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS met its burden.

B. Reasonable evidence supports terminating father’s rights
under the 15-months’ time in care ground.

¶20 Father argues he remedied DCS’s concerns about substance-
abuse and domestic violence by the time of the termination trial. But at trial,
father admitted he did not think 3.5 years was a sufficient period for him to
show he was capable of safely parenting his children. Circumstances at the
time of the trial support father’s admission.

¶21 By trial, 44 months into the case, father still consistently failed
to drug test and had not completed substance-abuse treatment or domestic
violence counseling. Though father claims he was routinely testing as part
of his probation, he failed to produce substantiating reports. And though
father completed substance-abuse treatment as part of his probation, DCS
referred him to substance-abuse treatment three times. He failed to finish
one.

¶22 Father next argues DCS failed to provide adequate
reunification services. Specifically, father argues DCS failed to provide him
additional counseling and more visitation. DCS, however, offered father
many services to address safety concerns including parent aide, case aide,
drug testing, substance-abuse treatment, psychological evaluations, and
transportation. Father failed to meaningfully engage or successfully
complete most services. Besides attending some supervised visits with the
children, father essentially participated in no other services. Because DCS
“is not required to provide every conceivable service[,]” reasonable
evidence establishes DCS made diligent efforts to provide father with
appropriate reunification services. Id.

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Decision of the Court

II. The superior court did not err in finding termination is in the
children’s best interests.

¶23 Mother argues the superior court erred in finding termination
served the children’s best interests because the superior court did not give
“sufficient weight” to her “successful engagement in services” and her
“recent progress and stability.” Father did not join this argument.

¶24 Termination is in the children’s best interests if either the
termination will benefit the children or failing to terminate will harm the
children. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (App. 2016). The
superior court found termination was in the children’s best interests
because their placement was meeting all their needs and was willing to
adopt them. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5
(App. 1998) (noting a court “may properly consider in favor of severance”
factors that include “the immediate availability of an adoptive placement”
and “whether an existing placement is meeting the needs of the child”).

¶25 Further, the superior court found any bond between the
children and mother did not outweigh mother’s untimely efforts to make
needed behavioral changes so she could safely parent the children. And
mother in fact had not made the needed behavioral changes based on
concerns about mother’s substance abuse and domestic violence. Waiting
indefinitely for mother to become a capable and effective parent does not
serve the children’s best interests. See JS-510568, 177 Ariz. at 577. As such,
reasonable evidence supports the superior court’s best-interests findings.

CONCLUSION

¶26 We affirm.

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

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