Philip P., Katherine J. v. Dcs, V.P.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PHILIP P., KATHERINE J., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, V.P., Appellees.

No. 1 CA-JV 16-0350
FILED 3-7-2017

Appeal from the Superior Court in Maricopa County
No. JD528532
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Law Office of H. Clark Jones, LLC, Mesa
By Clark Jones
Counsel for Appellant Philip P.

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Katherine J.

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

J O N E S, Judge:

¶1 Philip P. (Father) and Katherine J. (Mother) appeal the
juvenile court’s order terminating their parental rights to V.P. (Child). On
appeal, Mother argues the juvenile court erred in ordering her parental
rights severed because Department of Child Safety (DCS) did not make a
diligent effort to provide reunification services. She also argues the court
erred in concluding DCS had proved severance was in Child’s best interests
because notes from the therapeutic visitation were not admitted at trial.
Father does not contest the statutory grounds for severance, arguing only
that DCS failed to prove Child would benefit from severance of his parental
rights, or be harmed by continuing the relationship. For the following
reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 In February 2015, DCS received a report that Child, then two
years old, had been discovered at a neighbor’s apartment unsupervised.
Although Child was awake, both Mother and the neighbor were asleep in
the bedroom and difficult to wake and a disheveled man Mother “hardly
knew” was asleep on the couch. A bottle of alcohol was within Child’s
reach, and she appeared dirty and unkempt. Child was removed from her
parents’ care in March 2015 after Father, Mother, and paternal
grandmother, the family’s safety monitor, all tested positive for
methamphetamine.

¶3 In March 2015, DCS filed a petition alleging Child was
dependent as to both parents on the grounds of substance abuse and
neglect. Father and Mother waived their rights to a trial on the issue, and

1
We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

the juvenile court adjudicated Child dependent as to both parents and
adopted a case plan of family reunification and a concurrent case plan of
severance and adoption.

¶4 Mother later admitted to smoking “an 8-ball’s worth of
methamphetamine” every day for approximately nine years and also used
marijuana and alcohol to excess, albeit less frequently, and relapsing in
January 2015. She elected to continue substance abuse treatment through
Center of Hope, where she had been receiving supportive housing and
drug rehabilitation services since September 2012, and was offered random
urinalysis testing, drug court, and community resources to address
concerns regarding domestic violence. Mother participated in urinalysis
testing regularly, but tested positive for alcohol in March and amphetamine
in June; despite testing positive for alcohol and amphetamine, when
confronted with the test results she denied using any illegal substances at
the time. Between June and December 2015, Mother missed eleven of
twenty-three required urinalysis tests and tested positive for
methamphetamine again in August and September.

¶5 Father also admitted a history of using methamphetamine
and marijuana. He was referred to substance abuse treatment, random
urinalysis testing, and community resources to address concerns with
domestic violence, housing, and employment. He tested positive for
methamphetamine in March 2015 but did not participate in any further
urinalysis testing until mid-December. Father completed an initial intake
evaluation for substance abuse treatment in April 2015. He denied having
used any illegal drugs in the previous month, but an oral swab taken at the
appointment tested positive for methamphetamine. Father was diagnosed
with amphetamine abuse and recommended to complete standard
outpatient treatment with individual counseling sessions. The service was
closed for non-compliance in May 2015.

¶6 Father was re-referred for substance abuse treatment in June
2015. An oral swab taken at the initial appointment in July 2015 tested
positive for methamphetamine. Father thereafter attended eight of twenty-
one group counseling sessions but did not fully participate and presented
as angry and disruptive. He did not participate in any required drug
screens and admitted using methamphetamine again in September 2015.

¶7 Following a psychological evaluation in August 2015, Mother
was diagnosed with amphetamine use disorder and unspecified psychotic
and trauma-related disorders. The psychologist noted a history of domestic
violence and recommended Mother continue with substance abuse

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

treatment and testing; participate in a relapse prevention program; attend
individual counseling to address concerns regarding substance abuse,
parenting skills, domestic violence, and anger control; complete a bonding
assessment; and participate in a psychiatric evaluation.

¶8 By December 2015, neither parent had completed a substance
abuse treatment program or made the behavioral changes necessary to
provide Child a safe home. Nor had either parent demonstrated any
appreciable period of sobriety, or even provided a urine sample since his or
her last confirmed use — July 2015 for Father and September 2015 for
Mother. Mother reported another relapse on methamphetamine,
discontinued her participation in individual counseling, and was closed out
of parent aide services and drug court following multiple periods of
incarceration.

¶9 Despite their lack of commitment to substance abuse testing
and treatment, both parents engaged in one-on-one parent aide services
and visitation, which appeared to go well. However, Child began
exhibiting symptoms of emotional distress following visits with Mother
and Father, including regression, violence towards others, sleep
disturbance, tantrums, inappropriate sexual behaviors, and significant
changes in affect. Child was referred to a therapist and ultimately
diagnosed with posttraumatic stress disorder resulting from the neglect she
experienced in the parents’ care. Although Father ultimately completed
parent aide services, the aide continued to express concerns regarding his
substance abuse.

¶10 In January 2016, over the parents’ objections, the juvenile
court changed the case plan to severance and adoption. DCS immediately
moved to sever Father’s and Mother’s parental rights on the grounds of
substance abuse and the length of time Child had been in out-of-home care.
See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3),2 (8)(a), (c).3

2 Absent material changes from the relevant date, we cite a statute’s
current version.

3
Although DCS originally alleged severance was warranted based on
nine months in out-of-home care, by the time of trial, DCS had amended its
motion to add the allegation of fifteen months in out-of-home care.

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

¶11 Both parents submitted hair follicle samples in early 2016
which tested positive for methamphetamine. Father admitted using
methamphetamine only twice in January 2016, but his sample indicated the
presence of methamphetamine at more than twenty-eight times the
minimum detection level.4 Although Father and Mother increased their
efforts to engage in substance abuse treatment and counseling, their
participation remained inconsistent and Father continued to refuse testing.

¶12 In February 2016, the juvenile court suspended visitation after
Child reported Father had touched her inappropriately. After the
investigation concluded, DCS referred the parents for therapeutic
visitation, but by May 2016 Child’s emotional response to visitation had
escalated, prompting her therapist to recommend visits be reduced to once
per week to allow Child time to process her emotions and stabilize between
visits. The therapist also recommended Father and Mother complete
individual counseling and parenting classes before visitation was
increased.

¶13 Instead, both parents disengaged from services almost
entirely. Between January and July 2016, neither parent tested positive for
any substances, but Mother missed ten of twenty-four required urinalysis
tests, admitted another relapse around April, and did not test at all in June.
By the time of trial, Mother was no longer participating in any services and
had not completed any substance abuse treatment program. Although she
was prescribed medication to treat depression and bipolar disorder
through the Center for Hope in May 2016, she did not attend either of two
appointments for a psychiatric evaluation scheduled by DCS. Mother had
only recently obtained employment and was behind on her rent. During
this same period, Father did not complete any required tests, remained non-
compliant with substance abuse treatment, and was closed out of the
services again. He admitted last using methamphetamine around April
2016 and continued to live with paternal grandmother, a known
methamphetamine user.

¶14 A bonding assessment indicated Mother and Child shared a
healthy and nurturing bond, and Father’s parent aide testified that Father
was a caring and attentive parent during visitation. Both the assessor and
the parent aide remained concerned about the parents’ substance abuse

4
The laboratory analyzing the hair samples applied a “cutoff” level of
500 picograms per milligram of hair. The test results indicated the presence
of methamphetamine in Father’s hair at 14,234 picograms per milligram.

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

however. The assessor specified that Child remained at risk, noting
“[M]other’s connectivity and level of attentiveness with the child is
contingent on her sobriety and this can all change instantly if she sets herself
up for relapse.” Thus, the assessor concluded that it would be appropriate
to consider unsupervised visitation “in small increments” only if Mother
“has demonstrated at least six months to a year of sustained sobriety and
abstinence from all drugs and has not produced any questionable urine
drug screen results, and if she is not involved with anyone who would be a
negative influence on her parenting, her judgment and her sobriety.”

¶15 The matter proceeded to trial in August 2016. Both parents
admitted their participation in services was inconsistent. The DCS case
manager testified the primary barrier to reunification — substance abuse —
remained largely unaddressed as a result of the parents’ refusal to
participate consistently in services. She also expressed concern that neither
parent had acknowledged the effects of substance abuse upon his ability to
parent and concluded that, in the absence of such insight, Child remained
in danger of further neglect if returned to their care. The case manager also
testified Child was adoptable and with an adoptive placement capable of
meeting her needs.

¶16 After taking the matter under advisement, the juvenile court
found DCS proved all three statutory grounds for severance by clear and
convincing evidence as to each parent. The court also found severance was
in Child’s best interests and entered an order terminating Mother’s and
Father’s parental rights. Both parents timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1) and
Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

I. DCS Made a Diligent Effort to Provide Appropriate Reunification
Services to Mother.

¶17 Parental rights may be terminated if a statutory ground for
severance is found to exist by clear and convincing evidence. See A.R.S.
§§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz. 279, 281-82, ¶ 7 (2005).
When severance is based upon the length of time a child is in out-of-home
care or the parent’s chronic substance abuse, DCS must also prove that it
“has made a diligent effort to provide appropriate reunification services.”
A.R.S. § 8-533(B)(8), (D); Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326,
329, ¶ 18 (App. 2007) (citation omitted); Jennifer G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 450, 453, ¶ 12 (App. 2005) (citing Mary Ellen C. v. Ariz. Dep’t of

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

Econ. Sec., 193 Ariz. 185, 191-92, ¶¶ 31-34 (App. 1999)). Thus, DCS must
demonstrate it provided the parent with “the time and opportunity to
participate in programs designed to help her become an effective parent.”
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
However, DCS “is not required to provide every conceivable service,” nor
“ensure that a parent participates in each service.” Id. (citing Maricopa Cty.
Juv. Action No. JS-5209 and No. JS-4963, 143 Ariz. 178, 189 (App. 1984)).

¶18 Mother argues DCS did not provide meaningful or timely
reunification services.5 Specifically, Mother argues DCS’s reunification
efforts were deficient because: (1) Mother was referred for a psychiatric
evaluation in January 2016, but the evaluation was not scheduled until July
2016; and (2) in February 2016, after parent aide services were discontinued
as a result of Mother’s incarceration, Mother was referred for therapeutic
visitation, which did not begin until May 2016. We will affirm the juvenile
court’s finding of diligent efforts unless there is no reasonable evidence to
support it. See Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 54, ¶ 41
(App. 2013) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002)).

¶19 The record reflects Mother was provided multiple referrals
for substance abuse assessment, treatment, and testing, as well as parent
aide services and drug court — all of which were closed as a result of
Mother’s inconsistent participation. The only services Mother completed
were a psychological evaluation and a bonding assessment. She did not
participate in the recommended individual counseling, and tested positive
for, or admitted using, methamphetamine seven times in the seventeen
months Child was in out-of-home care, most recently only four months

5
DCS argues Mother waived this argument on appeal by failing to
timely object in the juvenile court. See Shawanee S. v. Ariz. Dep’t of Econ. Sec.,
234 Ariz. 174, 179, ¶¶ 17-18 (App. 2014) (“If Mother believed [DCS] was not
making diligent efforts to provide appropriate reunification services at any
point, it was incumbent on her to promptly bring those concerns to the
attention of the juvenile court, . . . [and] in the absence of an objection
challenging the type or manner of services, Mother has waived the right to
argue for the first time on appeal that [DCS] failed to offer appropriate
reunification services.”). Nonetheless, in our discretion, we choose to
address the substance of Mother’s argument. See Adams v. Valley Nat’l Bank
of Ariz., 139 Ariz. 340, 342 (App. 1984) (recognizing preference to decide
cases on the merits rather than to dismiss summarily on procedural
grounds) (citing Clemens v. Clark, 101 Ariz. 413, 414 (1966)).

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

prior to trial. Despite receiving near-constant support for her substance
abuse through the Center for Hope for more than three years and facing
termination of her parental rights to Child, Mother did not establish any
appreciable period of sobriety during the entire course of the dependency.

¶20 Although Mother contends psychiatric services “could have
been critical in assisting Mother with psychological issues” leading her to
use methamphetamine, Mother made no effort to attend the evaluations
once scheduled. Moreover, Mother did see a psychiatrist in May 2016. She
was prescribed medication for depression and bipolar disorder at that time
but remained inconsistent with urinalysis testing and completely
disengaged from other services.

¶21 Additionally, the record reflects therapeutic visitation was
appropriately implemented at the recommendation of Child’s therapist.
There was a delay in obtaining this service, but DCS provided supervised
visitation in the interim to permit continued contact between Mother and
Child. Regardless, Mother’s bond with Child has never been at issue in this
case, and Mother cannot show how she was harmed by these
circumstances.

¶22 Considering the totality of the circumstances and viewing the
facts in the light most favorable to sustaining the juvenile court’s order, it is
apparent additional or duplicative psychiatric services and/or visitation
would have been futile. The record supports the finding of diligent efforts,
and we find no error.

II. DCS Proved Severance Was in Child’s Best Interests.

¶23 A finding of one of the statutory grounds for severance under
A.R.S. § 8-533, standing alone, does not justify the termination of parental
rights; it must also be proved by a preponderance of the evidence that
termination of the parent-child relationship is in the child’s best interests.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (citing
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000)). Both
parents argue DCS failed to prove that severance was in Child’s best
interests by a preponderance of the evidence.

¶24 To establish best interests, it must be shown the child “would
derive an affirmative benefit from termination or incur a detriment by
continuing in the relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz.
332, 334, ¶ 6 (App. 2004) (citing Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189
Ariz. 553, 557 (App. 1997), and Maricopa Cty. Juv. Action No. JS-500274, 167
Ariz. 1, 5 (1990)). The benefit to the child, particularly when severance is

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

sought based upon the child’s length of time in an out-of-home placement,
is the opportunity for permanency where “parents maintain parental rights
but refuse to assume parental responsibilities.” Id. at 337, ¶ 16 (quoting
Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App. 1988), and
citing James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356 (App. 1998)). In
evaluating the child’s opportunity for permanency, the juvenile court
considers whether there is a current plan for the child’s adoption and
whether the current placement is meeting the child’s needs. See Bennigno
R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350 (App. 2013) (citing Mary Lou
C., 207 Ariz. at 50, ¶ 19, and Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz.
102, 107 (1994)).

¶25 Mother argues the juvenile court was unable to determine
whether severance of her parental rights was in Child’s best interests
because notes from the therapeutic visitation were not admitted into
evidence. Mother asserts this evidence would reveal a close bond between
Mother and Child “and Mother’s progress towards quality parenting.”
However, the nature of Mother’s bond with Child was never disputed, and,
in fact, was specifically acknowledged and considered by the juvenile court
in making the best interests determination. Nonetheless, the court
determined the Child’s “right to a safe, permanent and drug-free home
where all of her needs are met” was of primary importance. And, because
Mother was unable to provide Child such a home, severance was in Child’s
best interests. We find no abuse of discretion.

¶26 Father argues DCS failed to prove Child would benefit from
severance of his parental rights, or be harmed by continuing the
relationship, because Child “already suffered a significant detriment from
being separated from her family” and presented to visits with bug bites all
over her legs. Although Father testified as to his belief that Child’s
behavioral issues were caused by the stress of “being separated from her
loving parents,” Child’s therapist reported she did not observe any
evidence of separation anxiety, confirming instead that Child’s behaviors
resulted from “poor parenting and boundaries.” As the trier of fact, the
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
Oscar O., 209 Ariz. at 334, ¶ 4 (citing Jesus M., 203 Ariz. at 205, ¶ 4). We will
not disturb the court’s conclusion where, as here, it is supported by
reasonable evidence.

¶27 The record reflects Child is adoptable and in an adoptive
placement that was currently meeting her needs. Although a best interests
finding does not require proof that the child would also suffer a detriment

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 PHILIP P., KATHERINE J. v. DCS, V.P.
Decision of the Court

if severance is not granted, see id. at ¶ 6 (explaining termination is in a
child’s best interests if the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship”)
(emphasis added) (citations omitted), the record also supports a finding
that maintaining the parental bond would be detrimental to Child. The
parents do not contest the court’s findings that they are unable or unwilling
to parent Child as a result of chronic substance abuse and failed to address
the circumstances causing Child to be placed in out-of-home care. See
A.R.S. § 8-533(B)(3), (8)(a), (c); Pima Cty. Juv. Action No. S-2460, 162 Ariz.
156, 158 (App. 1989) (“[W]here 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, severance may be warranted and appropriate . . ..”). Child
therefore remains at risk for neglect if returned to either parent’s care. On
this record, we find no abuse of discretion.

CONCLUSION

¶28 The juvenile court’s order terminating Father’s and Mother’s
parental rights to Child is affirmed.

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

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