In Re Guardianship as to E.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 GUARDIANSHIP AS TO E.H.

No. 1 CA-JV 23-0196
FILED 05-21-2024

Appeal from the Superior Court in Maricopa County
No. JD533502
The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

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

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:
 IN RE GUARDIANSHIP AS TO E.H.
Decision of the Court

¶1 Michelle H. (“Mother”) appeals the superior court’s order
granting permanent guardianship of her child, E.H., to the child’s maternal
aunts. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
superior court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 2 (2016).
Mother has three children: E.H., born in 2018, an adult daughter, and a son,
J.H. Only E.H. is involved in this appeal. E.H.’s father is not a party to this
appeal.

¶3 In June 2020, police responded to a 911 call from J.H., who
found Mother unresponsive from a fentanyl overdose. Mother was revived
after receiving four doses of Narcan. Police found drugs and drug
paraphernalia in the house that were accessible to J.H. About a month later,
the Department of Child Safety (“DCS”) filed a dependency petition
alleging Mother and E.H.’s father neglected E.H. DCS specifically alleged
Mother was “unwilling or unable to provide proper and effective parental
care and control due to substance abuse.”

¶4 DCS tried to implement an in-home safety plan and asked
Mother to identify a responsible adult who could stay with her. Mother did
not identify anyone, so DCS removed E.H. from Mother’s home and placed
E.H. with prospective guardians.

¶5 At a subsequent hearing, the court found E.H. dependent as
to Mother and changed the case plan to family reunification. DCS offered
Mother reunification services, including substance abuse testing and
treatment, a psychological evaluation, counseling, parent-aide services, and
supervised visitation.

¶6 Mother began testing for substances in July 2020 and, starting
in September 2020, tested positive for fentanyl on numerous occasions for
a little over a year. Mother also tested positive for cocaine in December
2021; this was the last time she participated in drug testing. Mother
declined DCS’s request for hair follicle testing in February 2023, and told
DCS she would submit a urinalysis test, but she did not.

¶7 In July 2020, Mother started participating in supervised
visitation with E.H. twice a week for two hours. DCS described Mother’s
supervised visits with E.H. at Mother’s home as “positive.” These
supervised visits continued until December 2021.

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¶8 Mother underwent a psychological evaluation in June 2021.
The psychologist diagnosed Mother with major depressive disorder, child
neglect, and a history of child sexual abuse. The psychologist
recommended Mother receive mental health counseling to help her “learn
emotional regulation, coping, stress management, and relationship
skills[,]” as well as parenting classes “to learn and demonstrate adequate
and healthy parenting skills.” DCS helped Mother complete intake
paperwork for mental health counseling, and she received a psychological
evaluation but later self-referred to a different agency in order to be seen
more quickly. In November 2021, Mother started engaging in mental health
counseling, but by March 2023 she regularly cancelled or did not show up
to appointments. Mother participated in and successfully completed
parent-aide services in January 2022.

¶9 In June 2022, the superior court ordered DCS to provide
Mother with visitation after Mother had issues scheduling visits due to DCS
staff turnover. About a month later, Mother requested a show-cause
hearing, arguing visitation had “been an ongoing issue for the past year”
and DCS had not complied with the court’s previous order. DCS responded
that it had offered Mother supervised visitation by June 9, 2022, in
compliance with the court’s order, but Mother either cancelled or failed to
confirm three visits. DCS requested that visitation remain open for an
additional week but the visitation service closed when Mother failed to
respond. In September 2022, Mother withdrew her show-cause hearing
motion.

¶10 From February to July 2023, DCS could not reach Mother
regarding services and thus could not assess her progress. During that
time, the superior court changed the case plan to guardianship.

¶11 In August 2023, the superior court held a contested
guardianship hearing. At the time of the hearing, E.H. had been living with
her maternal aunts, who were also her prospective guardians, for over nine
months. Mother testified that she had been unemployed for about three
months. She also testified that she had only lived at her past two residences
for a few months each and was evicted from one of them in January 2023.

¶12 In the superior court’s permanent guardianship order, it
found Mother did not have stable housing or employment throughout the
case and “failed to make the necessary behavioral changes” to reunify with
E.H. The court also found termination would not be in the child’s best
interests because E.H. expressed a desire to have contact with Mother, but
found guardianship was in E.H.’s best interests. The court awarded

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custody of E.H. to the guardians and permitted Mother to have supervised
visitation with E.H. twice per month.

¶13 Mother timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) Sections 8-235(A) and 12-120.21(A)(1).

DISCUSSION

¶14 Mother asserts the superior court abused its discretion in
granting the permanent guardianship, arguing no reasonable evidence
supported its findings that DCS made reasonable reunification efforts and
that further efforts would be unproductive and reunification was not in the
child’s best interests.

¶15 We will not reverse a permanent guardianship order unless it
is clearly erroneous. See Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553,
555 (App. 1997). The superior court “is in the best position to weigh the
evidence, observe the parties, [and] judge the credibility of witnesses.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We
will accept the superior court’s factual findings “unless no reasonable
evidence supports those findings.” Id.

¶16 The superior court may establish a permanent guardianship
if it is in the child’s best interests and the following requirements, as
relevant here, are met: (1) the child was found dependent; (2) the child has
been in the prospective permanent guardians’ custody for at least nine
months; (3) the child is in DCS or agency custody, and DCS or the agency
has made reasonable reunification efforts and further efforts would be
unproductive; and (4) the likelihood of adoption is remote or termination
would not be in the child’s best interests. A.R.S. § 8-871(A)(1)–(4). Mother
only challenges the court’s findings for the third requirement. See A.R.S.
§ 8-871(A)(3).

¶17 As an initial matter, DCS argues that because the court
determined DCS made reasonable reunification efforts and further efforts
would be unproductive, we need not address Mother’s argument
challenging the court’s finding that reunification was not in E.H.’s best
interests. See A.R.S. § 8-871(A)(3). The superior court has discretion to
decide whether to waive this requirement, and it did not appear to waive it
here. See A.R.S. § 8-871(A)(3) (“The court may waive this requirement if it
finds one or more of the following . . .”) (emphasis added). Accordingly,
we will review whether reasonable evidence supported the superior court’s
findings on (1) whether reunification was in E.H.’s best interests and (2)

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whether DCS made reasonable reunification efforts and further efforts
would be unproductive.

¶18 As to best interests, the superior court found that Mother was
“unwilling or unable to properly care for” E.H., pursuant to Section 8-
871(A)(3)(b), due to her lack of stable housing and employment throughout
the case, and her failure to fully address her substance abuse issues. At the
guardianship hearing, Mother admitted that she was evicted from her most
recent residence and had been unemployed for about three months.
Mother’s inconsistent drug testing, positive drug tests, and failure to
participate in substance abuse treatment reflect that she was unwilling or
unable to properly care for E.H. Based on this evidence, the court found
that “Mother . . . failed to make the necessary behavioral changes in order
to reunify with [E.H.] despite having over three years to do so.” The court
further found that termination was not in E.H.’s best interests because “the
child still wants contact with Mother” but found “guardianship [was] in the
best interest of [E.H.].” The record shows that reasonable evidence
supported the court’s best interests findings.

¶19 Reasonable evidence also supported the court’s findings that
DCS made reasonable reunification efforts over a three-year period and that
further efforts would be unproductive. See A.R.S. § 8-871(A)(3). DCS does
not need “to provide every conceivable service or to ensure that a parent
participates in each service it offers.” Tanya K. v. Dep’t of Child Safety, 240
Ariz. 154, 157, ¶ 11 (App. 2016) (citation omitted). Rather, DCS is obligated
to provide parents the “time and opportunity to participate” in services that
have a “reasonable prospect of success.” Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192, ¶¶ 34, 37 (App. 1999). DCS offered Mother
supervised visitation, substance abuse testing and treatment, a
psychological evaluation, mental health counseling, and parent-aide
services. Initially, Mother participated consistently in supervised visitation
with E.H. twice a week. But she either cancelled or failed to confirm three
visits in August 2022 and did not show up for appointments. Due to
Mother’s unresponsiveness, the visitation service requested that the service
close early. DCS requested that it remain open for an additional week to
give Mother time to respond, which it did, but Mother did not respond and
the service closed in late August 2022.

¶20 Mother argues it was unreasonable for DCS to rely on an
outdated psychological evaluation from June 2021, relying on Maricopa
County Juvenile Action No. JS-378, 21 Ariz. App. 202 (1974). In that case, we
reversed the superior court’s termination order in part because evidence of
the mother’s mental condition from a year prior to the termination trial was

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insufficient to support her diagnosis. Id. at 205–06. But here, Mother missed
psychiatric evaluations and testified that the last counseling session she
attended was in December 2022. And although the psychological
evaluation may have been outdated, DCS could not get in touch with
Mother from February to July 2023 to offer her an updated evaluation.

¶21 Mother also argues DCS did not provide her “the time and
opportunity to participate in reunification services with a reasonable
prospect of success” because of DCS’s staff turnover and alleged disregard
for her medical issues. In its ruling, the superior court found that “despite
the length of time that . . . passed and the significant efforts made, and
services provided by [DCS],” Mother had not fully addressed the reasons
E.H. came into DCS’s care and found that DCS made reasonable
reunification efforts.

¶22 In her opening brief, Mother does not cite to specific services
or accommodations she asked for and did not receive. While DCS’s staff
turnover may have impacted Mother’s visitation services, DCS complied
with the court’s order and offered visitation in June 2022. And despite
Mother’s medical issues, she had opportunities to participate in services.
For example, after Mother was hospitalized in April 2023 for having
suicidal thoughts, she was given an opportunity to participate in further
mental health counseling but did not. The superior court did not err by
finding DCS made reasonable efforts to reunify Mother and E.H.

¶23 The record also supports the superior court’s finding that
further reunification efforts would have been unproductive. Although
Mother had positive supervised visitation, successfully completed parent-
aide services, and enhanced her protective capacities, she inconsistently
attended supervised visitation and did not demonstrate a commitment to
mental health counseling or continued sobriety. In August 2022, Mother
stopped confirming visitation times, and starting in June 2022, she either
regularly cancelled or did not show up to her counseling appointments.
While Mother claimed that the counseling service did not respond to her
outreach attempts and that she did not receive calls about scheduling
psychiatric evaluations, “[t]he Court [did] not find Mother’s explanation for
her inconsistency . . . [or] for missing [the] evaluations to be credible.” And
despite efforts from another counseling agency to reach out to her for an
intake appointment, she did not respond.

¶24 Further, when Mother participated in drug testing, she
consistently tested positive for fentanyl, demonstrating her unwillingness
to remedy the cause for DCS becoming involved in her case—substance

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abuse. DCS could not rule out substance abuse as a concern because Mother
stopped taking drug tests after testing positive for cocaine in December
2021.

¶25 The record shows that Mother’s contact with DCS throughout
this case—spanning three years—was inconsistent. She failed to engage in
services for at least a six-month period in 2023. The superior court did not
find Mother’s reasons for inconsistent participation to be credible, and we
do not reweigh credibility determinations on appeal. See Jesus M., 203 Ariz.
at 282, ¶ 12. Reasonable evidence supported the court’s conclusion that
Mother “failed to make the necessary behavioral changes in order to reunify
with the child despite having over three years to do so.” Reasonable
evidence also supported the superior court’s finding that further
reunification efforts would have been unproductive. For these reasons, the
court did not abuse its discretion in granting DCS’s permanent
guardianship motion.

CONCLUSION

¶26 We affirm.

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

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