In Re Term of Parental Rights as to F.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0081
FILED 12-12-2023

Appeal from the Superior Court in Maricopa County
No. JD40842
The Honorable Julie Ann Mata, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Tiffany S.

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

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO F.S.
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 In this consolidated appeal, Tiffany S. (“Mother”) and Joe S.1
(“Father”) appeal the termination of their parental rights to F.S.
(“Daughter”). For the following reasons, we affirm the order terminating
Mother’s and Father’s parental rights to Daughter, but we vacate the
finding that the Department of Child Services (“DCS”) proved the chronic
substance abuse ground against Father.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the facts in the light most favorable to upholding
the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010) (citation omitted).

¶3 Mother and Father are the biological parents of Daughter,
born in February 2021. In April 2021, Father refused to give Daughter to
Mother because Mother was intoxicated. Mother became argumentative
and was arrested. Three days later, Daughter was present when Mother hit
Father, leaving Father with “blood coming from his right ear and a 3-inch
scratch on his upper right chest.” The police arrested Mother and notified
DCS. Father retained custody of Daughter.

¶4 A few days later, Mother and Father had another argument,
during which Mother damaged Father’s phone. Mother left with Daughter,
but she returned while the police were interviewing Father. While holding
Daughter in a car seat, Mother began yelling at Father. Mother refused
police instructions to give Daughter to Father and paced around outside for
forty minutes, exposing Daughter to hot weather, which caused Daughter’s
skin to turn red. Mother used Daughter as a “shield” when the police
arrested Mother. After the arrest, the police notified DCS.

¶5 DCS took custody of Daughter and filed a dependency
petition based on Mother’s domestic violence and substance abuse, and

1 Father is also known as Jose S.

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Father’s failure to protect Daughter from Mother. In September 2021, the
parents pled no contest, and the superior court adjudicated Daughter
dependent and approved a family reunification case plan.

¶6 DCS offered Mother and Father drug testing, substance abuse
treatment, supervised visitation, and bus passes, and asked them to self-
refer to domestic violence counseling.

¶7 Mother had sporadic periods of sobriety, but she repeatedly
went months without testing, she failed to call in to the testing center over
500 times, and she tested positive for substances nineteen times between
May 2021 and March 10, 2023. Her positive tests included alcohol and THC
in May 2021 and cocaine in December 2021. Mother also disclosed that she
used cocaine and marijuana heavily and that she often drank alcohol until
she blacked out. Mother was diagnosed with moderate cannabis use
disorder, severe alcohol use disorder, and moderate cocaine use disorder.

¶8 Mother started, but did not complete, multiple substance
abuse treatment programs. More than a year after DCS removed Daughter
from Mother’s care, Mother started another program and completed some
classes, but in February 2023, she was hospitalized for intoxication. About
a week later, Mother smuggled alcohol into the treatment facility after
“meeting with her boyfriend/child’s father at the gate,”2 and she left the
program.

¶9 Father did not initially provide a urine sample, but he tested
positive via a hair follicle test for methamphetamine, amphetamine, and
cocaine in May 2021, cocaine and methamphetamine in June 2022, and
cocaine in February 2023. Father did not complete his first substance abuse
program. DCS re-referred Father in July 2022, and he engaged in substance
abuse treatment until his February 2023 positive drug test.

¶10 In June 2022, the court approved changing the case plan from
reunification to severance and adoption. About a month later, DCS
petitioned to terminate Mother’s parental rights based on her history of
chronic abuse of drugs and/or alcohol, and on six- and nine-month out-of-
home placement grounds, and Father’s parental rights on six- and nine-
month out-of-home placement grounds. In January 2023, DCS moved to
add a fifteen-month out-of-home placement ground against Mother and
Father. The superior court allowed the amendment but granted Mother’s

2 Mother and Father denied that Father provided Mother with alcohol.

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and Father’s motion to continue the hearing. The court held a two-day
contested severance hearing in February and March 2023.

¶11 At the hearing, the DCS case manager testified about the
parents’ ongoing substance abuse issues. DCS also had ongoing domestic
violence concerns because Mother and Father had only recently started
domestic violence counseling, Father still communicated with Mother, and
despite discussions with DCS about it, Father did not obtain an order of
protection against Mother.

¶12 Mother testified that she was unemployed but living with
friends, and Daughter could live with her. Mother also testified that she
completed an intake appointment for domestic violence counseling, and
she admitted that her alcohol use contributed to the domestic violence.3

¶13 Father testified that he did not believe Mother’s substance
abuse was a current safety concern, and he considered Mother a safe parent.
Father also testified that he had completed four domestic violence
counseling sessions, was employed, had identified childcare for Daughter,
and planned to move to a new apartment because Daughter could not live
with him at his current residence.

¶14 The superior court terminated Mother’s and Father’s parental
rights, finding termination was in Daughter’s best interests and that DCS
had offered clear and convincing evidence to terminate Mother’s and
Father’s rights on the substance abuse ground, six- and nine-month out-of-
home placement grounds, and fifteen-month out-of-home placement
ground.

¶15 We have jurisdiction over Mother’s and Father’s timely
appeals under Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and 12-
2101(A)(1), and Rule 601 of the Arizona Rules of Procedure for the Juvenile
Court.

3 The superior court questioned whether Mother was sober during the
contested severance hearing and noted in its ruling that, “[w]hile testifying
Mother giggled inappropriately, and at times her speech was slurred. . . .
The Court inquired why her behavior was so markedly different than the
first day of trial, and all the hearings leading up to it. Mother stared blankly
and then asked the Court if the question posed was directed at her.”

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Decision of the Court

DISCUSSION

I. Standard of Review

¶16 To terminate parental rights, a court must find clear and
convincing evidence of at least one statutory ground in A.R.S. § 8-533(B)
and must find by a preponderance of the evidence that termination is in the
child’s best interests.4 See Michael J., 196 Ariz. at 249, ¶ 12; Kent K. v. Bobby
M., 210 Ariz. 279, 288, ¶ 41 (2005). 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,” Jordan C. v. Ariz. Dep’t of Econ. Sec.,
223 Ariz. 86, 93, ¶ 18 (App. 2009) (citation omitted), we will accept its factual
findings if supported by reasonable evidence and inferences, and we will
affirm the order terminating parental rights unless it is clearly erroneous,
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016); accord Brionna J. v. Dep’t
of Child Safety, 255 Ariz. 471, 478–79, ¶¶ 30–31 (2023) (clarifying the standard
of review).

II. Mother’s Appeal

¶17 Mother argues that substantial evidence did not support each
of the statutory grounds.

¶18 A court may terminate a parent’s rights under A.R.S. § 8-
533(B)(3) when: (1) the “parent has a history of chronic abuse of controlled
substances or alcohol;” (2) the “parent is unable to discharge parental
responsibilities because of [her] chronic abuse of controlled substances or
alcohol;” and (3) “there are reasonable grounds to believe that the condition
will continue for a prolonged and indeterminate period.” Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010).5

¶19 Mother concedes that she “has a history of substance use” and
“[l]ike many Americans, [she] uses legal substances, such as marijuana and
alcohol,” but argues that the superior court erred in finding substance abuse
prevented her from discharging her parental responsibilities because “[h]er

4 Mother and Father do not challenge the superior court’s finding that
termination was in Daughter’s best interests, so we do not address it. See
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 13 (2000).

5 Mother does not challenge DCS’s reunification efforts, so we do not
address the issue further. See Raymond F., 224 Ariz. at 377, ¶ 15 n.2.

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mere use of those substances does not prove, by clear and convincing
evidence, that she is an incapable parent.”

¶20 The superior court did not terminate Mother’s rights based on
Mother’s “mere use of those substances.” The court found that “Mother is
violent when she drinks and is not safe,” “Mother is only able to put the
child’s needs above her own when she is sober,” and Mother had not shown
“an awareness that substance abuse and domestic violence prevent [her]
from fulfilling [her] individual parental responsibilities.”

¶21 A court may find a parent is incapable of discharging her
parental responsibilities when the parent, because of chronic substance or
alcohol abuse, fails to make appropriate decisions and ensure a safe home
for her child. See Raymond F., 224 Ariz. at 377–78, ¶¶ 19–23. DCS removed
Daughter from Mother’s custody because she engaged in multiple acts of
domestic violence in Daughter’s presence. According to a DCS report,
Mother admitted she was under the influence of alcohol during those
incidents. Finally, Mother testified that her alcohol use contributed to the
domestic violence.

¶22 Mother also argues that the record lacked substantial
evidence that her substance abuse would prevent her from discharging her
parental responsibilities “at the present or the future.”

¶23 DCS conditioned Daughter’s return on Mother providing a
“home environment that is consistent and free of any substances.” Mother
had almost two years to address her substance abuse issues. But Mother
continued to abuse substances including when, just after the first hearing
day, she became intoxicated and had to be hospitalized, and days later,
signed herself out of her treatment program after she was caught smuggling
alcohol into the facility. See id. at 379, ¶ 29 (A parent’s failure to remedy
substance abuse, “despite knowing the loss of [her] children was imminent,
is evidence [she] has not overcome [her] dependence on drugs and
alcohol.”). Mother argues that she “tested negative for substances at
various times throughout the dependency proceedings.” But “temporary
abstinence from drugs and alcohol does not outweigh [her] significant
history of abuse or [her] consistent inability to abstain during this case.” Id.

¶24 Thus, reasonable evidence supports the finding that Mother’s
substance abuse rendered her unable to discharge her parental
responsibilities and that her condition was likely to continue. “If clear and
convincing evidence supports any one of the statutory grounds on which
the juvenile court ordered severance, we need not address claims

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Decision of the Court

pertaining to the other grounds.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 3 (App. 2002) (citations omitted). Thus, we do not address
Mother’s arguments against the out-of-home placement grounds.

III. Father’s Appeal

A. Chronic Abuse of Dangerous Drugs or Controlled Substances

¶25 Father argues the superior court erred because it found DCS
proved the substance abuse ground when DCS did not allege that ground
against Father. DCS concedes that the court erred. We accept DCS’s
concession.6

B. Fifteen-Month Out-Of-Home Placement Ground

¶26 Father also argues the superior court erred because
substantial evidence did not support terminating his parental rights on the
fifteen-month out-of-home placement ground.

¶27 Under A.R.S. § 8-533(B)(8)(c), a court may terminate a parent’s
rights when: (1) “[t]he child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant to court order
or voluntary placement,” (2) “the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement,” and
(3) “there is a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near future.”
The court must also find that DCS made a “diligent effort to provide
appropriate reunification services.” A.R.S. § 8-533(B)(8).

¶28 Father does not challenge the superior court’s finding that
Daughter was in an out-of-home placement for fifteen months. Instead, he
argues insufficient evidence supported the superior court’s finding that he
could not remedy the circumstances causing Daughter’s out-of-home
placement.

6 Citing Carolina H. v. Arizona Department of Economic Security, 232 Ariz. 569

(App. 2013), Father argues we should reverse because the superior court
violated his right to due process and fundamental liberty interest in
parenting Daughter by independently adding the substance abuse ground.
In Carolina H., the superior court found that a child was dependent even
though it concluded none of the statutory grounds had been proven. Id. at
571, ¶¶ 8–9. That is not the case here because the superior court also
terminated Father’s parental rights on grounds pled by DCS.

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Decision of the Court

¶29 “Circumstances” means “’those circumstances existing at the
time of the severance’ that prevent a parent from being able to
appropriately provide for his or her children.” Jordan C., 223 Ariz. at 96,
¶ 31 n.14 (citations omitted). Father did not consistently participate in
substance abuse treatment or drug testing, and he tested positive for
substances in May 2021, June 2022, and February 2023. Further, after
hearing evidence that Mother had unresolved substance abuse issues,
Father testified that Mother was a safe parent and her substance abuse was
not a current safety concern. Finally, Father did not start domestic violence
counseling until just before the contested severance hearing. Thus,
reasonable evidence supports the finding that Father was unable to remedy
the substance abuse and domestic violence concerns causing Daughter’s
out-of-home placement.

¶30 Father also argues that the superior court erred because
“there was insufficient evidence to show what parenting Father was unable
to provide to the child or what parenting functions Father was unable to
perform.” The superior court found that Father made insufficient
improvement in prioritizing “the child’s safety above Mother’s desires and
requests” and concluded that Father would be unable to exercise parental
care and control in the future.

¶31 DCS removed Daughter from Father’s care because he failed
to protect her from Mother’s domestic violence, but Father continued to
communicate with Mother, did not obtain an order of protection against
her, and did not start domestic violence counseling until February 2023.
The superior court also pointed to evidence that Father provided alcohol to
Mother while Mother was in a treatment facility. Mother and Father denied
that Father did so, but “[t]he resolution of such conflicts in the evidence is
uniquely the province of the juvenile court as the trier of fact,” so we defer
to the superior court’s judgment. Jesus M., 203 Ariz. at 282, ¶ 12 (citations
omitted). Finally, Father testified that he did not find Mother’s substance
abuse a current safety concern and that he believed Mother was a safe
parent.

¶32 Father points to evidence showing that he made progress and
argues that the court did not give this evidence “proper weight.” The
superior court considered Father’s progress, but found it was insufficient,
and we do not reweigh evidence. See Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 151, ¶ 18 (2018).

¶33 Thus, reasonable evidence supports the superior court’s order
terminating Father’s parental rights on the fifteen-month out-of-home

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placement ground. We therefore do not address the six- and nine-month
termination grounds. See Jesus M., 203 Ariz. at 280, ¶ 3.

C. Reunification Services

¶34 Father argues that DCS did not make diligent efforts to
provide him with reunification services because Father was “unable to
receive [domestic violence counseling] from any agency he contacted” and
“DCS did not intervene and help Father get the domestic violence
counseling services until the end of the case.”

¶35 DCS must provide a parent with the “time and opportunity
to participate in programs designed to help [him] become an effective
parent,” but DCS need not provide “every conceivable service or [] ensure
that a parent participates in each service it offers.” Maricopa Cnty. Juv.
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (citation omitted).

¶36 DCS offered Father substance abuse treatment, random
urinalysis testing, bus passes, and supervised visitation. DCS also asked
Father to self-refer to domestic violence counseling. Citing Mary Ellen C. v.
Arizona Department of Economic Security, 193 Ariz. 185 (App. 1999), Father
argues DCS needed to provide domestic violence counseling because DCS
recommended it. Mary Ellen C. held that Child Protective Services—DCS’s
predecessor—did not make reasonable efforts to offer reunification services
because it failed to offer a parent significant services for almost a year after
removing a child, and encouraged the parent to self-refer to, but did not
provide, psychiatric services that its consulting expert recommended. Id. at
192, ¶¶ 35, 37. Here, the DCS case manager testified that she offered to help
Father find domestic violence counseling, but Father responded that he
could find it on his own. Further, Father’s obtaining domestic violence
counseling was discussed at a Team Decision Meeting in May 2021. Yet
Father waited until January 2023 to inform the court and DCS that he could
not find a program. Then, DCS immediately referred Father to a program,
and Father finally began attending counseling. Because the delay in
beginning domestic violence counseling is attributable to Father’s inaction,
the superior court did not err in finding DCS made a diligent effort to
provide him with reunification services.

D. Less-Restrictive Placement

¶37 Father also states that he has a Fourteenth Amendment and
statutory right to parent his child and argues that the superior court erred
because A.R.S. § 1-601 required “DCS to consider a less restrictive
placement such as [a] guardianship as an alternative to severance.” Father

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Decision of the Court

did not present this argument to the superior court, so to prevail he must
show fundamental error. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437,
447–48, ¶¶ 37–38 (2018). A court may establish a permanent guardianship
only when “[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). Here, the superior court found that Daughter’s foster
family intended to proceed with adoption and that termination of parental
rights was in her best interests. Thus, the court did not fundamentally err
because it could not have established a guardianship.

CONCLUSION

¶38 The superior court’s order terminating Mother’s and Father’s
parental rights to Daughter is affirmed, but we vacate the superior court’s
finding that DCS proved the chronic substance abuse ground against
Father.

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

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