In Re Term of Parental Rights as to B.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.B.

No. 1 CA-JV 22-0268
FILED 4-20-2023

Appeal from the Superior Court in Maricopa County
No. JD39886
The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.

G A S S, Vice Chief Judge:
 IN RE TERM OF PARENTAL RIGHTS AS TO B.B.
Decision of the Court

¶1 B.B.’s mother appeals the superior court’s order terminating
her parental rights. B.B.’s father is not a party to this appeal. Mother raises
two issues, arguing the superior court erred by failing to address:
(1) whether a permanent guardian was available; and (2) whether
appointing a permanent guardian would be in the child’s best interests. We
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In September 2020, the police found mother and four-year-old
B.B. living in a broken-down car during the summer heat with no air
conditioning and minimal food available. When the police offered to help
mother find a shelter, she refused. The Department of Child Safety (DCS)
investigated and became concerned about mother’s mental health based on
statements she made during her interview. DCS also noted B.B. witnessed
domestic violence between his mother and father. DCS took custody of B.B.,
and the superior court later adjudicated him dependent as to mother.

¶3 DCS provided mother with services, including a
psychological evaluation, parent-aide, and therapeutic and non-therapeutic
supervised visits. DCS also asked mother to self-refer for counseling with a
domestic-violence component. Mother’s evaluating psychologist noted she
showed some anti-social personality traits but gave her a fair prognosis of
being able to parent B.B. in the future and recommended she engage in
cognitive-behavioral therapy.

¶4 Eventually, mother moved into a shelter, which provided her
with counseling. But DCS could not review mother’s counseling records
because she retracted her agreement to release information. The DCS case
manager, thus, could not verify whether mother progressed on specific
goals, including understanding and taking responsibility for her role in
B.B.’s past trauma and her involvement in domestic violence. Instead,
mother’s counselor provided a few short letters confirming mother
consistently attended sessions for about a year and used dialectical-
behavioral strategies to work on her anxiety, past trauma, shame, personal
empowerment, and coping skills.

¶5 Mother’s counseling ended after she had to leave the shelter
for failing to follow its policies. Though the DCS case manager offered to
help mother enroll in state-sponsored insurance and self-refer to a new
counselor, mother never pursued that option.

¶6 Meanwhile, B.B. thrived with his foster family but displayed
extremely disruptive and aggressive behaviors in school. His foster family

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 IN RE TERM OF PARENTAL RIGHTS AS TO B.B.
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secured behavioral-health services for him, and B.B. was later diagnosed
with post-traumatic stress disorder and attention-deficit hyperactivity
disorder. DCS referred him for trauma therapy and a psychiatric
evaluation.

¶7 Mother attended visits with B.B., but the supervisor noted she
disciplined him inappropriately, engaged in power struggles with him, and
placed unreasonable expectations on him—leading to frustration between
mother and B.B. As a result, mother and B.B. began therapeutic visits in
January 2021. With the therapist’s help, mother improved her ability to
respond to B.B.’s needs and successfully completed the referral.

¶8 Even so, B.B.’s visits with mother did not go well. Within a
few months, B.B. refused to visit mother, and DCS assigned a parent-aide
with little success. B.B. attended a few visits but became very dysregulated
during and after and had nightmares. For six months, he refused to visit
mother. At that point, DCS recommended mother attend virtual visits with
B.B. and his father. Though B.B. was receptive to virtual visits, mother did
not attend them consistently. By trial, mother had not visited B.B. for eight
months.

¶9 DCS also referred mother for an updated psychological
evaluation and a bonding and best-interests assessment. She completed
none. DCS ultimately moved to terminate mother’s parental rights under
the 15-month out-of-home placement ground. See A.R.S. § 8-533.B.8.c. After
an adjudication hearing, the superior court terminated mother’s parental
rights.

¶10 This court has jurisdiction over mother’s timely appeal under
section VI, article 9, of the Arizona Constitution, and A.R.S. § 8-235.A.

ANALYSIS

I. The superior court did not fundamentally err when it found DCS
proved the 15-month out-of-home placement ground.

¶11 Mother argues the superior court violated her due process
rights because it did not require DCS prove a guardianship-case plan was
not feasible.

¶12 A parent has a fundamental right “to direct the upbringing,
education, health care and mental health of their children,” and restricts the
state from “infring[ing] on these rights without demonstrating that the
compelling governmental interests as applied to the child involved is of the

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highest order, is narrowly tailored and is not otherwise served by a less
restrictive means.” A.R.S. § 1-601. Mother argues that statutory provision
requires DCS prove no potential placement was willing to serve as a
permanent guardian and address a permanent-guardianship case plan if
one was available. Mother argues the superior court must then make
findings about whether DCS met its burden.

¶13 This court generally reviews constitutional and statutory
interpretation issues de novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437,
442 ¶ 15 (2018). But when a parent fails to raise such claims in the superior
court, this court reviews for fundamental error. Id. at 447 ¶ 37. To prevail in
a claim of fundamental error, the parent must show prejudice. Brenda D.,
243 Ariz. at 447–48 ¶ 38. Because mother did not raise this issue before the
superior court, this court reviews her claim for fundamental error. See id. at
447 ¶ 37.

¶14 Even if § 1-601 applies to parental termination proceedings,
mother failed to allege, let alone show, prejudice. See id. at 447–48 ¶ 38. At
most, mother says, “a guardianship would be less restrictive as it would not
terminate a parent’s parental rights.” This statement falls short because
mother “cannot merely ‘rely upon speculation’” and “must show that a
reasonable [factfinder] could have reached a different result.” Id. at 430
¶ 38 (citation omitted). Mother, thus, has not shown fundamental error.

II. The superior court did not err when it found DCS proved
termination was in the child’s best interests.

¶15 Mother argues the superior court cannot find termination is
in the child’s best interests under a totality of the circumstances for a 15-
month out-of-home placement ground unless it considers a permanent-
guardianship case plan.

¶16 The superior court “must consider the totality of the
circumstances existing at the time of the severance determination, including
the child’s adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 148 ¶ 1 (2018). Once the superior court finds a
parent unfit under at least one statutory ground for termination, “the
interests of the parent and child diverge,” and the court goes on to balance
the unfit parent’s “interest in the care and custody of his or her child . . .
against the independent and often adverse interests of the child in a safe
and stable home life.” Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 35 (2005).
“[A] determination of the child’s best interest[s] must include a finding as
to how the child would benefit from a severance or be harmed by the

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continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). The totality of the circumstances may include a parent’s
rehabilitation efforts and the negative effect a statutory ground may have
on a child. See Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 478 ¶ 31
(2022).

¶17 Termination is in a child’s best interests if the superior court
finds a child would benefit from termination based on an existing adoption
plan or if the child is adoptable. Alma S., 245 Ariz. at 150–51 ¶¶ 13–14. The
same is true if the child “would benefit psychologically from the stability
an adoption would provide.” Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994). Conversely, the superior court may find
continuation of the parent-child relationship would harm a child if “there
is clear and convincing evidence of parental unfitness which has not been
remedied notwithstanding the provision of services by [DCS] and which
detrimentally affects the child’s well-being.” Pima Cnty. Juv. Action No.
S-2460, 162 Ariz. 156, 158 (App. 1989).

¶18 This court accepts the superior court’s “findings of fact unless
no reasonable evidence supports those findings, and . . . will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). This court does not reweigh the
evidence but “look[s] only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8
(App. 2004).

¶19 On this record, we find no error. True, the superior court did
not consider or make findings about a permanent-guardian case plan as
part of its best-interests inquiry. But neither DCS nor mother filed a
guardianship petition, and no evidence suggested any potential placement
was willing to be B.B.’s permanent guardian. Cf. Timothy B., 252 Ariz. at 477
¶ 28 (under the length-of-sentence ground, the superior court
acknowledged maternal aunt was “willing to serve as a legal permanent
guardian” so it should have considered whether a guardianship could
provide the child with a normal home while father was imprisoned). The
superior court must “make specific findings of fact in support of the
termination of parental rights” supported by the record. See Ariz. R.P. Juv.
Ct. 353(h)(2)(A). Without a guardianship petition or some indicia in the
record raising the issue, the superior court need not make findings about a
permanent-guardian case plan. See generally Ariz. R.P. Juv. Ct. 353(h).

¶20 Additionally, to approve a permanent guardian, the superior
court would have had to find the likelihood “the child would be adopted is

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remote or termination of parental rights would not be in the child’s best
interests,” which the record does not support. A.R.S. § 8-871.A.4; cf. A.R.S.
§ 8-533.B (expressing no inverse requirement for the superior court to
consider a guardianship before terminating parental rights).

¶21 Here, the superior court made the required findings. It found
B.B. was adoptable because he had two potential adoptive placements,
including his foster family and an out-of-state relative. The superior court
found he would benefit from adoption because both families could meet his
basic and special needs. The superior court went further and found
maintaining mother’s parental relationship with B.B. would be detrimental
to him because he “would continue to linger in the foster care system with
no foreseeable prospect for reunification” as mother was unable to care for
him currently and for the foreseeable future. Reasonable evidence supports
these findings. See Jesus M., 203 Ariz. at 280 ¶ 4.

¶22 Mother argues the superior court failed to give sufficient
weight to her reunification efforts. We decline mother’s invitation to
reweigh the evidence and consider only whether evidence supports the
superior court’s ruling. See Mary Lou C. 207 Ariz. at 47 ¶ 8. True, the superior
court expressly recognized mother “initially show[ed] some
improvement,” but it also noted her overall participation in services was
“mixed.” The record supports the superior court’s findings. Though mother
initially participated, she refused or failed to complete an updated
psychological evaluation, a parent-child assessment, or attend virtual visits
with B.B. Mother did not ensure DCS had access to her counseling records
and prevented the DCS case manager from fully assessing her progress and
ability to parent a young, special-needs child. And mother refused to testify
about her current living situation or income, from which the superior court
appropriately drew a negative inference. See Montoya v. Superior Court In
and For Cnty. of Maricopa, 173 Ariz. 129, 131 (App. 1992) (“[T]he trial judge
may draw a negative inference from the [parent’s] invocation of the Fifth
Amendment.”). On this record, we find no error.

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CONCLUSION

¶23 We affirm.

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

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