Malay'ja D. v. Dcs, Z.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MALAY'JA D.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, Z.B.,
Appellees.

No. 1 CA-JV 22-0134
FILED 11-17-2022

Appeal from the Superior Court in Maricopa County
No. JD40045
The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General′s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee
 MALAY'JA D. v. DCS, Z.B.
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

M O R S E, Judge:

¶1 Malay'ja D. ("Mother") appeals from the juvenile court's order
terminating her parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Zerion B. ("Father") are the biological parents of
Z.B., who was born in May 2020. DCS became involved with the family
because both Z.B. and Mother tested positive for THC at the time of Z.B.'s
birth.

¶3 Mother admitted to smoking marijuana throughout the
pregnancy. Father acknowledged that he knew about the marijuana use
but did not intervene. Mother also disclosed that she suffers from severe
anxiety, and Z.B.'s paternal grandmother ("Grandmother") indicated that
Mother may also suffer from bipolar disorder.

¶4 In October 2020, DCS filed a dependency petition based on
Mother's substance abuse and mental-health issues. But DCS did not
remove Z.B. from the home at that time.

¶5 Two months later, Mother and Father got into a physical fight.
Grandmother called the police and took Z.B. to stay with his aunt. Mother
and Father were both arrested. Following the incident, DCS removed Z.B.
from his parents' custody and placed him in Grandmother's care for the
remainder of the dependency.

¶6 Mother did not contest the dependency petition, and Z.B. was
adjudicated dependent in January 2021. At that time, DCS indicated that
reunification would require the parents to: (1) establish a safe and stable
home; (2) abstain from abusing illegal substances or prescription drugs; and
(3) maintain a home environment that is free from domestic violence.

¶7 Over the course of the dependency, DCS provided Mother
with substance-abuse assessments and referrals for supervised visitation,

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Decision of the Court

parent-aide services, and substance-abuse testing and treatment. During
Mother's initial substance-abuse assessment, providers referred her for
additional domestic-violence counseling.

¶8 Mother did not participate in the required substance-abuse
treatment, she consistently avoided substance-abuse testing, and tested
positive for THC when she did participate. Mother repeatedly cancelled
parent-aide sessions and supervised visits to the point she had no
supervised visits with Z.B. in 2021. Mother also failed to act on the referral
for domestic-violence counseling.

¶9 In June 2021, Mother unsuccessfully petitioned the court to
eliminate the requirement for substance-abuse testing and treatment, and
parent-aide services.

¶10 Later that month, without permission, Mother took Z.B. from
Grandmother and did not return him until police intervened. Two months
later, she again took Z.B. without permission while he was on vacation with
Grandmother in Pennsylvania. This time, Mother did not return the child,
but police in Pennsylvania eventually located her, retrieved Z.B., and
arrested her and Father for kidnapping. Pennsylvania authorities
incarcerated Mother for three months. She was released, but the record is
not clear on the ultimate resolution of the charges against Mother.

¶11 After her release, Mother still failed to participate in the
available services. In December 2021, DCS moved for termination under
the nine-month time-in-care ground.

¶12 In April 2022, the juvenile court conducted a termination trial
and, in May 2022, issued an order terminating Mother's parental rights. The
court found that DCS failed to provide adequate services to address the
domestic-violence concerns and declined to consider domestic violence as
a circumstance causing the out-of-home placement. However, the court
found DCS had provided diligent efforts to address Mother's substance-
abuse and mental-health issues.

¶13 The juvenile court also found that termination would be in
Z.B.'s best interests because: (1) Grandmother was willing and able to adopt
him; (2) adoption would provide him with the added benefit of
permanency and stability; and (3) placement with Grandmother would
allow him to maintain his relationships with other family members.

¶14 Mother timely appealed the termination order. We have
jurisdiction under A.R.S. §§ 8-235 and 12-120.21(A).

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DISCUSSION

¶15 Mother argues that the juvenile court erred in finding that
DCS met its diligent efforts burden under the time-in-care ground. She also
claims the record below was insufficient to support a finding that
termination of parental rights was in Z.B.'s best interests. We disagree.

¶16 Parents possess a fundamental right in the custody and
control of their children, but that right is not absolute. Michael J. v. Ariz.
Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000). Termination of
parental rights is not favored and "generally should be considered only as
a last resort." In re Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 4
(1990).

¶17 This court views the evidence and reasonable inferences to be
drawn from it in the light most favorable to affirming the juvenile court's
order. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App.
2010). We review the juvenile court's termination decision for an abuse of
discretion and will affirm if reasonable evidence supports the court's
findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). But we review de novo "legal issues requiring the interpretation and
application of § 8-533." Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 580, ¶
10 (2021) (quoting Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 12
(App. 2014)).

I. Diligent Efforts.

¶18 Mother claims that DCS failed to prove diligent efforts
because it did not provide her with domestic-violence services.

¶19 To pursue termination under the time-in-care ground, DCS
must make diligent efforts to provide parents with appropriate
reunification services. A.R.S. § 8-533(B)(8). What constitutes a diligent
effort will vary by case, but DCS must – at the least – provide services that
have a reasonable prospect of success in remedying the circumstances
causing the child's out-of-home placement. Donald W. v. Dep't of Child
Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019). DCS is not required to "provide
every conceivable service" or to "undertake rehabilitative measures that are
futile," but it must "'undertake measures with a reasonable prospect of
success' in reuniting the family." Jordan C. v. Ariz. Dep't of Econ. Sec., 223
Ariz. 86, 94, ¶ 20 (App. 2009) (quoting Mary Ellen C. v. Ariz. Dep't of Econ.
Sec., 193 Ariz. 185, 192, ¶¶ 34, 37 (App. 1999)).

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¶20 In this case, the juvenile court found that DCS failed to
provide adequate services to remedy Mother's issues with domestic
violence. Accordingly, it discounted domestic violence as a circumstance
causing the out-of-home placement and found that termination was
appropriate given the other issues that Mother had refused to remedy. If
termination was appropriate without consideration of the domestic
violence, then the court did not abuse its discretion when it implicitly found
that providing domestic-violence services was futile because they would
not have reunited the family. Cf. id. (noting that measures are not futile if
they have "'a reasonable prospect of success' in reuniting the family").
Mother does not challenge the court's findings related to the other
circumstances causing the out-of-home placement.

¶21 Instead, Mother argues that the juvenile court can only
determine futility through the process contained in A.R.S. § 8-846 and Rule
57. We have previously rejected this argument. See Christina G. v. Ariz.
Dep't of Econ. Sec., 227 Ariz. 231, 236, ¶ 21 (App. 2011) (finding that failure
to follow § 8-846 and Rule 57 did not entitle a mother to reversal of the
juvenile court's termination order); see also Vanessa H. v. Ariz. Dep't of Econ.
Sec., 215 Ariz. 252, 256, ¶ 20 (App. 2007) (finding that reunification services
on behalf of the mother would have been futile without considering either
provision). While the purpose behind these two provisions "is to encourage
[DCS] to seek a determination on futility when it appears that reunification
services will no longer assist the parent," their language does not suggest
"that the juvenile court is prohibited from making a determination after the
severance hearing that additional services would have been futile."
Christina G., 227 Ariz. at 237, ¶ 25.

¶22 If DCS does not follow the § 8-846 procedure, it must prove
by clear and convincing evidence at trial that additional rehabilitative
services would have been futile. Mary Ellen C., 193 Ariz. at 193, ¶ 42 (App.
1999). Reasonable evidence supports the juvenile court's finding that DCS
met its burden. The juvenile court did not abuse its discretion.

II. Best Interests of the Child.

¶23 After finding clear and convincing evidence establishing one
of the statutory grounds for termination, the court must determine by
preponderance of the evidence that termination is in the child's best
interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018).
At this stage, "the juvenile court's primary concern . . . is the 'child's interest
in stability and security.'" Timothy B. v. Dep't of Child Safety, 252 Ariz. 470,
478, ¶ 31 (2022) (quoting Alma S., 245 Ariz. at 150, ¶ 12). "[T]ermination is

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in the child's best interests if either: (1) the child will benefit from severance;
or (2) the child will be harmed if severance is denied." Alma S., 245 Ariz. at
150, ¶ 13.

¶24 Citing Timothy B., Mother argues that the court's best-interests
finding was insufficient because the court provided no case-specific
evidence that adoption benefitted the child more than permanent
guardianship. 252 Ariz. at 478-79, ¶ 34. Her argument misinterprets that
case.

¶25 In Timothy B., the supreme court recognized that a child's
interest in termination may be "a relevant factor under the guardianship
statute" and remanded to the juvenile court to consider whether permanent
guardianship would be appropriate under the length-of-sentence ground
for termination. Id. But a child's interest in termination is relevant to the
guardianship determination because the court may not establish a
permanent guardianship unless "[t]he likelihood that the child would be
adopted is remote or termination of parental rights would not be in the
child's best interests." A.R.S. § 8-871(A)(4). There is no inverse requirement
in the termination statute. See A.R.S. § 8-533.

¶26 In conducting its best-interests inquiry, the court must still
"consider the totality of the circumstances existing at the time of the
severance determination." Alma S., 245 Ariz. at 150-51, ¶ 13. In some cases,
the totality of the circumstances will include a child's interest in
maintaining the parental relationship through permanent guardianship.
See Timothy B., 252 Ariz. at 478, ¶ 31 (noting that courts should consider
whether a child's interests "are served by termination or maintenance of the
parent-child relationship"); see also Santosky v. Kramer, 455 U.S. 745, 760
(1982) (recognizing a child's interest in preserving the natural relationship
with their parents). But that interest is diminished "once a determination
of unfitness has been made," Alma S., 245 Ariz. at 151, ¶ 15, and can be
overcome by other factors favoring termination, Dominique M. v. Dep't of
Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016). The juvenile court
properly considered guardianship before finding that Z.B.'s best interests
favored termination. Accordingly, we affirm.

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 MALAY'JA D. v. DCS, Z.B.
Decision of the Court

CONCLUSION

¶27 For the above stated reasons, we affirm the decision of the
juvenile court.

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

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