In Re Term of Parental Rights as to F.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 TERMINATION OF PARENTAL RIGHTS AS TO F.H., S.H., M.A.,
and A.R.

No. 1 CA-JV 23-0218
FILED 06-06-2024

Appeal from the Superior Court in Maricopa County
No. JD509657
The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Guadalupe M., Mesa
Appellant

Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Advisory Counsel for Appellant Guadalupe M.

Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Christopher H.

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO F.H., et al.
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 In this consolidated appeal, Guadalupe M. (“Mother”)1
appeals the termination of her parental rights to F.H., S.H., M.A., and A.R.
(collectively, “the children”), and Christopher H. (“Father”) appeals the
termination of his parental rights to M.A. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

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

¶3 Mother is the biological parent of twins F.H. and S.H., born in
2019, M.A., born in 2020, and A.R., born in 2022. Father is the biological
parent of M.A.

¶4 In March 2022, A.R. was born substance-exposed. A month
later, the Department of Child Safety (“DCS”) filed a dependency petition
against Mother and Father. The petition alleged the children were
dependent because of Mother’s substance abuse, untreated mental health
issues, and domestic violence incidents involving her former partners. The
petition also alleged that Mother did not provide for the children’s basic
needs because she weaned A.R. off seizure medication without physician
approval and did not have supplies to care for the children. The petition
alleged Father abandoned M.A. and failed to provide for M.A.’s basic
needs. Neither parent contested the dependency petition, and the court
found the children dependent as to Mother and M.A. dependent also as to
Father. When DCS filed the petition, Father had not established paternity
of M.A. Later, Father’s paternity test confirmed he is M.A.’s father.

1 Mother’s assigned counsel filed a brief avowing he reviewed the record

and found no non-frivolous issue to raise. We ordered assigned counsel
remain appointed as advisory counsel, and Mother filed a pro se brief.
Mother is also known as Guadalupe R.

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Decision of the Court

¶5 DCS offered Mother reunification services, including drug
testing, substance abuse treatment, housing and employment resources
through Family Connections, visitation, transportation, bus passes, and
parenting skills classes. The DCS case manager also scheduled a two-hour
meeting with Mother to discuss housing resources but had to reschedule
because Mother fell asleep during the meeting.

¶6 In April 2022, Mother tested positive for methamphetamine
and amphetamine.2 Mother did not submit to another test during the
dependency. She did not participate in Family Connections or the
parenting skills classes. Although Mother participated in a few substance
abuse treatment sessions through the program offered by DCS, she did not
complete the program. Mother also independently started two substance
abuse treatment programs but left both programs after a few days.

¶7 Mother participated in visitation with the children. She
brought food for the children but did not consistently bring diapers and
wipes. M.A.’s doctor said he could not have sweetened drinks because of
stomach issues. Mother knew about the doctor’s note, but she continued to
give M.A. sweetened drinks and argued with the case aides when they tried
to prevent her from giving him the drinks. The case aides also reported that
Mother yelled and cursed at them in front of the children.

¶8 Father began a five-year prison sentence for a Class 2 felony
in October 2021 and is scheduled to be released in July 2025. He began
virtual visitation with M.A. in February 2023. Father sent no gifts, cards, or
letters to M.A., and he did not routinely contact DCS about M.A.

¶9 In June 2023, DCS moved to change the case plan to severance
and adoption. The superior court granted DCS’s motion. A month later,
DCS moved to terminate Mother’s parental rights under the prolonged
substance abuse and six- and nine-month out-of-home placement grounds
and Father’s parental rights under the length-of-incarceration-for-a-felony-
conviction ground. The superior court held a one-day contested severance
hearing in September 2023, receiving testimony from the DCS case
manager, Mother, and a proposed relative placement. Father gave a
statement but did not testify.

2 After Mother gave birth to A.R., the hospital gave Mother medication that

would have made her test positive for amphetamine, but the medication
would not have made her test positive for methamphetamine.

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Decision of the Court

¶10 The superior court found termination was in the children’s
best interests and terminated Mother’s and Father’s parental rights on each
ground alleged.

¶11 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.

DISCUSSION

I. Mother’s Appeal

¶12 Mother’s opening brief does not comply with rules requiring
citations to legal authority and the record. See Ariz. R.P. Juv. Ct. 607(b);
ARCAP 13(a)(7)(A)–(B). We could conclude Mother waived her
arguments, see State v. Moody, 208 Ariz. 424, 452, ¶ 101 n.9 (2004), but we
choose to address the merits.

A. Nine-Month Out-Of-Home Placement Ground

¶13 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 find by a preponderance of the evidence that termination is in the
children’s best interests. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 249, ¶ 12 (2000); 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, Brionna J. v. Dep’t
of Child Safety, 255 Ariz. 471, 478–79, ¶¶ 30–31 (2023) (citations omitted).

¶14 A court may terminate a parent’s rights when: (1) “[t]he
child[ren] ha[ve] been in [] out-of-home placement[s] for a cumulative total
period of nine months or longer pursuant to court order”; (2) “the parent
has substantially neglected or wilfully refused to remedy the circumstances
that cause the child[ren] to be in [] out-of-home placement[s]”; and (3) DCS
“made a diligent effort to provide appropriate reunification services.”
A.R.S. § 8-533(B)(8)(a).

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¶15 Mother does not dispute that the children were in out-of-
home placements for at least nine months. The children were in out-of-
home placements from April 2022 to September 2023, which exceeds nine
months.

¶16 Mother argues she “never stopped testing.” We interpret this
as challenging the superior court’s finding that Mother substantially
neglected or wilfully refused to remedy the circumstances causing the
children’s out-of-home placements. The superior court found “Mother is
not and has not taken any of the steps necessary to address the issues that
brought the children into care” because Mother refused to address her
substance abuse issues, failed to engage in treatment services, failed to
complete drug testing, and failed to obtain stable housing and employment.

¶17 Reasonable evidence supports the superior court’s findings.
Mother submitted to only one drug test during the dependency, which was
positive for methamphetamine. Mother participated in only a few
substance abuse treatment sessions through the program offered by DCS,
and she left two other substance abuse treatment programs after a few days.
Mother also did not participate in the parenting skills classes or obtain
stable housing or employment. Finally, although Mother participated in
visitation with the children, she acted inappropriately by yelling and
cursing at the case aides in front of the children and giving M.A. sweetened
drinks against medical advice.

¶18 On appeal, Mother states she is now participating in
substance abuse treatment and drug testing. She testified at the contested
severance hearing that she planned to start a substance abuse treatment
program. The superior court noted that even if Mother started the program
after the hearing, “the children would remain in care for a very long period
before Mother could complete the program.” “Leaving the window of
opportunity for remediation open indefinitely is not necessary, nor . . . is
[it] in the child’s or the parent’s best interests.” Maricopa Cnty. Juv. Action
No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (citation omitted). Mother’s
current efforts, though commendable, are “‘too little, too late,’ for purposes
of this severance action.” See id.

¶19 Mother argues she “asked a number of times for help from
DCS” but DCS did not help her because “DCS had already placed all [four]
children with famil[ies] that wanted to keep them.” DCS must provide a
parent with the “time and opportunity to participate in programs designed
to help her become an effective parent,” but DCS need not provide “every
conceivable service or [] ensure that a parent participates in each service it

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offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App.
1994) (citation omitted). The superior court listed the services offered by
DCS in its ruling and found that DCS had made a diligent effort to provide
Mother with reunification services.

¶20 Reasonable evidence supports the superior court’s findings.
DCS offered Mother drug testing, substance abuse treatment, housing and
employment resources, visitation, parenting skills classes, transportation,
and bus passes. DCS also resubmitted referrals when Mother did not
engage in services.

¶21 Mother’s opening brief does not identify what services she
claims DCS refused to give her. At the contested severance hearing, Mother
said DCS would not help her with housing. The DCS case manager testified
that she met with Mother to discuss housing resources and provided
Mother with housing resources through Family Connections. Mother’s
testimony conflicted with the case manager’s testimony, but the superior
court did not find Mother’s testimony credible. We do not reweigh
evidence. See Jordan C., 223 Ariz. at 93, ¶ 18.

¶22 Reasonable evidence supports the superior court’s
termination of Mother’s rights under the nine-month out-of-home
placement ground. “If clear and convincing evidence supports any one of
the statutory grounds on which the [superior] court ordered severance, we
need not address claims 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 the six-month or chronic substance abuse grounds.

B. Best Interests Determination

¶23 Mother also argues “the best interest of the children is [to be]
with [their] mother.” “[A] determination of the child[ren]’s best interest[s]
must include a finding as to how the child[ren] would benefit from a
severance or be harmed by the continuation of the relationship.” Maricopa
Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990) (citations omitted). The
court may consider the “child[ren]’s adoptability and the parent’s
rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
Here, the superior court found the children would benefit from termination
because they were thriving in their current placements, and their
placements intended to proceed with adoption.

¶24 Reasonable evidence supports the superior court’s findings.
The DCS case manager testified the children were doing well with their
placements, had bonded with them, and the current foster families were

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Decision of the Court

prospective adoptive placements. The case manager also testified that the
children were otherwise adoptable if the current placements could not
proceed with adoption.

¶25 Mother states in her opening brief that A.R. was abused in a
foster home. DCS records show that A.R. was removed from a foster home
after three months because of an investigation involving a different child in
the placement’s care. DCS placed A.R. with a new family, and the case
manager testified A.R. was doing well in her new placement. The superior
court’s best interests finding was based on A.R.’s new placement, and
reasonable evidence supports that finding.

II. Father’s Appeal

¶26 Citing the Parents’ Bill of Rights, Father argues the superior
court erred by terminating his parental rights instead of appointing a
guardian because a guardianship would have been less restrictive. See
A.R.S. §§ 1-601 to -602. We review statutory interpretation issues de novo.
Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). Father did
not argue to the superior court that the Parents’ Bill of Rights mandated a
guardianship. So, Father must show fundamental error to prevail. See id.
at 447–48, ¶¶ 37–38.

¶27 Section 1-601 states that parents have a fundamental right to
“direct the upbringing, education, health care and mental health of their
children,” and the state shall not infringe on that right “without
demonstrating that the compelling governmental interest as applied to the
child involved is of the highest order, is narrowly tailored and is not
otherwise served by a less restrictive means.”

¶28 A party may file a motion for a permanent guardianship, see
A.R.S. § 8-872(A), but the superior court lacks the authority to establish a
guardianship sua sponte, see Ariz. Dep’t of Econ. Sec. v. Stanford, 234 Ariz.
477, 480, ¶¶ 12–14 (App. 2014). The motion must include “[t]he name and
address of the prospective guardian and a statement that the prospective
guardian agrees to accept the duties and responsibilities of guardianship.”
A.R.S. § 8-872(A)(3). Father elicited testimony about a guardianship, and a
relative testified that she was willing to be a guardian, but Father did not
file a motion that complied with A.R.S. § 8-872. Further, 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 M.A.’s placement intended to adopt him, and termination

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was in M.A.’s best interests. Thus, the superior court did not err because it
could not have established a guardianship.

¶29 Father also argues the Parents’ Bill of Rights required DCS to
move to establish a permanent guardianship. The party filing the motion
has the burden of proving, by clear and convincing evidence, that a
guardianship is in the child’s best interests. A.R.S. §§ 8-871(A), -872(H).
The DCS case manager testified at the contested severance hearing that a
guardianship would not be beneficial in this case. DCS filing a motion for
a guardianship would be inconsistent with that testimony. Further, “[a]ny
party to a dependency proceeding” may move to establish a permanent
guardianship, A.R.S. § 8-872(A), and Father fails to explain why he did not
do so.

CONCLUSION

¶30 We affirm.

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

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