Lisa R. v. Dcs, A.H., W.R.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LISA R., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.H., W.R.,
Appellees. 1

No. 1 CA-JV 22-0141
FILED 1-5-2023

Appeal from the Superior Court in Maricopa County
No. JD32491
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Bailey Leo
Counsel for Appellee Department of Child Safety

1 We amend the above caption and order it be used on all future documents
filed in this matter.
 LISA R. v. DCS, A.H., W.R.
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 appeals the superior court’s order terminating her
parental rights to two of her biological children, A.H. and W.R. Each child
has a different father. The fathers are not parties to this appeal. Because
reasonable evidence supports the superior court’s 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 sustaining the superior court’s
decision. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App.
2002).

¶3 Mother is the biological parent of six children, including A.H.
and W.R. Only A.H. and W.R. are parties to this appeal. In April 2016, the
superior court found A.H. dependent as to mother and A.H.’s father,
because mother engaged in domestic violence and had untreated mental
health issues. In October 2017, the superior court dismissed the dependency
and reunited A.H. with mother.

¶4 In October 2019, the Department of Child Safety (DCS) filed a
second dependency petition for A.H. alleging mother was “unable or
unwilling” to parent A.H. based on the child’s behavior. DCS implemented
a safety plan in which DCS designated mother’s then-boyfriend as a
responsible adult charged with monitoring all contacts between mother and
A.H. In January 2020, DCS removed A.H. from mother’s care and placed
A.H. in foster care. The superior court granted DCS’s motion to formalize
the change in physical custody because mother’s then-boyfriend violated
the safety plan, mother had been evicted from her apartment, and she could
not provide any proof of housing. In February 2020, the superior court
again found A.H. dependent and adopted a family-reunification case plan.

¶5 In September 2020, mother gave birth to W.R. Later that
month, DCS filed a dependency petition for W.R. alleging mother neglected
W.R., did not have stable housing, had untreated mental health issues, and

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 LISA R. v. DCS, A.H., W.R.
Decision of the Court

was “unable or unwilling” to provide proper parental care to W.R. In
December 2020, the superior court found W.R. dependent as to mother and
W.R.’s father when they both pleaded no-contest to DCS’s allegations. In
February 2021, the superior court affirmed a family-reunification case plan
and found out-of-home care necessary because of mother’s depressive
disorder, anger management issues, and children’s safety when in her care.

¶6 Mother subsequently moved to have the children placed in
her physical custody, and in August 2021, the superior court held an
evidentiary hearing on the motion. In denying the motion, the superior
court said, “Mother’s minimization of domestic violence along with her
lack of candor . . . poses a significant risk of harm to the children because
[m]other is unable to recognize harmful situations, unable or unwilling to
directly address them, and unwilling to work with [DCS] to mitigate the
risk.” The superior court observed the children would be at substantial risk
of harm if returned to her care.

¶7 In October 2021, a DCS-appointed psychologist opined
mother had made minimal progress since her last evaluation. Moreover,
mother cancelled multiple scheduled visits, preventing the children from
visiting each other as well. In April 2022, after the court changed the case
plan to severance and adoption, DCS moved to terminate mother’s parental
rights as to A.H. and W.R. based on 15-months out-of-home placement. See
A.R.S. § 8-533.B.8(c).

¶8 In May 2022, the superior court held an initial hearing on the
motion to terminate, which mother failed to attend. The superior court
found DCS had served mother the motion, but she failed to appear without
good cause. Consequently, the superior court deemed mother to have
admitted the facts DCS alleged in its motion to terminate parental rights.
The superior court then heard evidence. The DCS case manager testified
mother did not fully participate in services and had only submitted two out
of ten required urinalysis tests in March and April 2022. The case manager
also testified each of the children’s placements were meeting the children’s
needs. W.R. was in an adoptive placement, and though A.H. was not in an
adoptive placement, DCS considered her an “adoptable” child and was
making efforts to find an adoptive home.

¶9 The superior court terminated mother’s parental rights as to
both children on the 15-month out-of-home placement ground. Mother
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.

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 LISA R. v. DCS, A.H., W.R.
Decision of the Court

ANALYSIS

¶10 Because mother does not challenge the statutory grounds for
termination, she has abandoned that argument. See Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017). Instead, mother focuses her
appeal on the best interests findings.

¶11 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). After finding the
state has proven by clear and convincing evidence a termination ground,
the superior court must then find by a preponderance of the evidence
termination serves the children’s best interests. Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 149–150, ¶ 8 (2018). This court reviews the superior
court’s decision 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. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citation omitted).

¶12 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 must prioritize the children’s “interest in stability and
security.” Alma S., 245 Ariz. at 150, ¶ 12.

¶13 Mother broadly asserts “no reasonable evidence supports the
[superior] court’s findings.” But the DCS-appointed psychologist expressed
concerns mother had not made sufficient progress and lacked awareness of
what she needed to be a “capable, consistent, and stable parent.” The
psychologist further opined mother’s personality disorder resulted in
“repeated, self-defeating activities and chronic difficulty in grasping
reality.”

¶14 In evaluating the children’s best interests, the superior court
concluded mother was “no nearer to reunification [that day] than she was
at the outset of this matter.” The superior court found mother was
minimally participating in services and continued to minimize her history
and nature of domestic violence. The superior court recognized mother’s
relationship with the children but noted mother’s ongoing “severely
diminished insight” as to parenting. Waiting indefinitely for mother to
become a capable and effective parent does not serve the children’s best

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 LISA R. v. DCS, A.H., W.R.
Decision of the Court

interests. See Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994).

¶15 Even so, mother argues the entire best-interests
determination is based on adoption plans because the superior court
weighed the availability of an adoptive placement in both its benefit and
detriment analysis. The superior court also recognized the children’s
existing placement was meeting their needs. See Audra T. v. Ariz. Dep’t of
Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998). The superior court found W.R.
was in an adoptive placement and though A.H. was not, DCS was making
efforts to locate one and A.H. was adoptable. The superior court did not
abuse its discretion by considering the availability of adoptive placement in
its best-interests calculus. See id. (noting factors showing a benefit include
“the immediate availability of an adoptive placement”).

¶16 The superior court also found the children would “linger in
foster care for an indeterminate period of time” if it did not terminate
mother’s parental rights. That finding is consistent with the superior court’s
15-month out-of-home placement ground for termination, which required
the superior court to find by clear and convincing evidence “there is a
substantial likelihood [mother] will not be capable of exercising proper and
effective parental care and control in the near future.” A.R.S. § 8-533.B.8(c);
see Alma S., 245 Ariz. at 149–150, ¶ 8.

¶17 Mother argues termination of her parental rights would not
stop A.H. from “lingering in foster care” because the parent-child
relationship between A.H. and her father remains intact. But DCS has
moved to terminate A.H.’s father’s rights, and the superior court found
DCS was making efforts to locate an adoptive placement for A.H. Because
DCS need only show adoption is “legally possible and likely,” DCS met its
burden. Demetrius L., 239 Ariz. at 4, ¶ 12.

¶18 Next, mother contends the superior court did not consider
“the totality of circumstances.” But mother then concedes the superior court
did indeed “consider[] the totality of circumstances, including the loving
bond between [m]other and [A.H.]” but argues “reasonable evidence does
not support proper consideration of other circumstances.” (Emphasis
added.) Mother identifies no other circumstances the superior court should
have considered. This argument, thus, fails.

¶19 Mother further asserts the adoption plan—for separate foster
parents to adopt each child—is not in the children’s best interests because
it would separate the siblings. Though placing siblings together is an

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 LISA R. v. DCS, A.H., W.R.
Decision of the Court

important consideration, other factors such as stability, security, health, and
safety are paramount. Id. at 4, ¶ 15; Ariz. R.P. Juv. Ct. 301(b). 2 In short,
though placing the siblings together can be a benefit, the converse—
separately placing siblings—is not necessarily a detriment. Both types of
placements can be in the children’s best interests.

¶20 Based on the above, reasonable evidence supports the
superior court’s best-interests findings.

CONCLUSION

¶21 We affirm.

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

2 Rule 301(b) abrogated former Rule 36 on July 1, 2022. Rule 301(b) is
substantively identical to the former rule.

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