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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LISA W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.W., Appellees.
No. 1 CA-JV 17-0299
FILED 12-14-2017
Appeal from the Superior Court in Maricopa County
No. JD 31079
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee, Department of Child Safety
LISA W. v. DCS, K.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.
B R O W N, Judge:
¶1 Lisa W. (“Mother”) appeals the termination of her parental
rights to her child, K.W., who was born in 2008.2 For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In August 2015, the Department of Child Safety (“DCS”) took
custody of the child after receiving multiple reports of Mother’s substance
abuse, domestic violence, and neglect. DCS filed a dependency petition
alleging the child was dependent due to substance abuse, physical abuse,
and neglect.
¶3 Before the superior court ruled on the dependency petition,
DCS offered reunification services to Mother. She was referred to TASC for
random urinalysis testing, and to Terros for substance abuse treatment.
Mother also was assigned a case aide to facilitate visits and was informed
she could have a parent aide once she demonstrated 30 days of sobriety.
DCS provided Mother transportation services and identified the behavioral
changes she needed to make to reunify with the child. As relevant here, the
changes revolved around Mother maintaining sobriety, understanding
how substance abuse impacted the child, recognizing how unhealthy
relationships and domestic abuse can traumatize a child, and implementing
a safety plan to address domestic violence.
¶4 In January 2016, the superior court found the child dependent
and approved a case plan for family reunification. In furtherance of the
1 The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
2 The child’s father is not a party to this appeal.
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LISA W. v. DCS, K.W.
Decision of the Court
case plan, DCS continued with the services previously offered to Mother,
together with counseling and a psychological evaluation.
¶5 While the child has been in DCS’s custody, Mother was in
Colorado from September through November 2015 and she returned to
Arizona in December. In October 2016, Mother moved to Colorado, but
returned to Arizona in February 2017 to attend court proceedings and visit
the child, intending to return to Colorado. DCS referred Mother to
urinalysis testing in Colorado. She was directed to self-refer to counseling
and substance abuse assistance.
¶6 Mother did not complete the services DCS provided. She
consistently missed the random urinalysis tests and, for that reason, was
closed out of TASC eight times. Of the urinalysis tests Mother took, almost
one-quarter of the samples tested positive for alcohol. Because Mother did
not demonstrate or report 30 continuous days of sobriety, she was never
provided a parent aide referral. Nor did Mother complete substance abuse
treatment, despite being referred to Terros several times. Mother attended
a substance abuse clinic in Colorado where she received substance abuse
treatment, group and individual counseling. Although DCS confirmed by
phone that Mother was participating in these services, DCS requested
treatment records from the Colorado facility but never received them.
¶7 Mother participated in some visits with the child when she
was in Arizona, but did not self-refer to parenting classes as requested by
DCS. DCS referred Mother to domestic violence counseling in April 2016,
but the service was closed out after Mother failed to engage in the services.
Mother testified that she participated in domestic violence classes in
Colorado, but DCS never received confirmation of such participation. DCS
also referred Mother to a psychological evaluation; she was notified of the
appointment and a taxi was provided to Mother, per her request. Mother
was not present when the taxi arrived. The appointment was rescheduled
but Mother did not attend. When Mother asked DCS to schedule another
appointment, DCS declined.
¶8 DCS filed a motion for termination of Mother’s parental rights
under Arizona Revised Statutes (“A.R.S.”) sections 8-533(B)(3) (chronic
substance abuse), 8-533(B)(8)(a) (nine months’ time in care), and
8-533(B)(8)(c) (fifteen months’ time in care). Following a contested hearing,
the superior court granted the motion on each of the three statutory
grounds and determined that termination was in the child’s best interests.
This timely appeal followed.
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LISA W. v. DCS, K.W.
Decision of the Court
DISCUSSION
¶9 To terminate parental rights, the superior court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination enumerated in A.R.S. § 8-533(B), and must also
find by a preponderance of the evidence that termination is in the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). “[W]e view the evidence and reasonable
inferences . . . in the light most favorable to sustaining the court’s decision.”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We
will affirm the termination order if it is supported by reasonable evidence.
Id.
¶10 To prevail on its motion to terminate Mother’s parental rights
pursuant to A.R.S. § 8-533(B)(8)(c), DCS was required to show that the child
was in an out-of-home placement for at least fifteen months, she was
“unable to remedy the circumstances that cause[d] the child to be in an out-
of-home placement,” and a “substantial likelihood” exists that she “will not
be capable of exercising proper and effective parental care and control in
the near future.” A.R.S. § 8-533(B)(8)(c). DCS is also required to show it
“made a diligent effort to provide appropriate reunification services”
before termination of parental rights. A.R.S. § 8-533(B); see also Christina G.
v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 14 (App. 2011) (“The juvenile
court is to consider the availability of reunification services to the parent
and his or her participation in those services, and must find that ADES
made a diligent effort to provide such services.”).
¶11 Mother argues the superior court erred in finding DCS made
diligent efforts to provide her rehabilitative services and that termination is
in the child’s best interests. As an initial matter, we note Mother waited
until the severance hearing to alert the court as to adequacy of the services
DCS had offered throughout the dependency proceeding. Nonetheless, we
decline to find waiver on this record but urge parents and their counsel to
raise such concerns much earlier in the process. See Shawanee S. v. Ariz.
Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014) (explaining that if the
mother believed that services were inadequate, “it was incumbent on her to
promptly bring those concerns to the attention of the juvenile court, thereby
giving that court a reasonable opportunity to address the matter and ensure
that [DCS] was in compliance with its obligation to provide appropriate
reunification services as ordered by that court”).
¶12 Mother asserts that DCS should have offered her more
services when she was in Colorado, that DCS never notified her to call into
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Decision of the Court
TASC when she returned to Arizona, and that DCS did not provide
sufficient visitation services when she returned. Contrary to Mother’s
assertions, we conclude that reasonable evidence supports the superior
court’s finding that DCS made diligent efforts to provide appropriate
reunification services. The services provided to Mother, as outlined above,
were explained by the DCS case manager at the severance hearing, are well-
documented in the numerous exhibits admitted at the hearing, and were
summarized in the court’s detailed severance ruling.
¶13 Mother also argues the superior court erred by terminating
her parental rights pursuant to A.R.S. § 8-533(B)(8)(c) because DCS failed to
prove that Mother is unable to remedy the circumstances that caused the
child to be in an out-of-home placement and that Mother is incapable of
exercising proper and effective parental care and control in the near future.
The court found that Mother has been unable to remedy the circumstances
that caused the out-of-home placement because she was still drinking
several months before the severance hearing and remained in a relationship
involving domestic violence. The court believed it would take over one
year to rectify these problems which she had “done nothing to address.”
¶14 The record supports the court’s findings. Mother participated
sporadically in substance abuse testing and treatment throughout the case.
Notably, she tested positive for alcohol throughout the case, relapsed
several months before trial, and failed to complete the services offered in
Arizona or provide proof of completion for services in which she
participated in Colorado. The DCS case manager testified it was unlikely
Mother would be capable of exercising parental control in the future
because she did not address her issues with substance abuse and because
she remained in a relationship involving domestic violence. Thus,
reasonable evidence supports the court’s finding that termination was
warranted based on fifteen months’ time in care.3
¶15 Finally, Mother asserts the superior court erred by concluding
that termination of parental rights was in the child’s best interests.
Termination is in the child’s best interests if the child will “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). “In making the determination, the juvenile court may consider
evidence that the child is adoptable or that an existing placement is meeting
3 Because we find the evidence supports the superior court’s order
based on fifteen months’ time in care, we need not address the other
grounds for termination.
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LISA W. v. DCS, K.W.
Decision of the Court
the needs of the child.” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282,
288, ¶ 26 (App. 2011). Here, the court found that the child is in an adoptive
home, the placement meets the child’s needs, and the severance provides
her with permanency and an environment free of alcoholism and domestic
violence.
¶16 The juvenile court’s ruling is supported by the record. The
case manager testified the child is adoptable and an adoptive home has
been identified. Moreover, the case manager explained termination would
provide the child permanency, safety, and she would not need to witness
domestic violence or alcoholism. Therefore, the court did not err in finding
termination of Mother’s rights is in the child’s best interests.
CONCLUSION
¶17 For the foregoing, we affirm the superior court’s termination
of Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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