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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
AMBER B., JODY B., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, I.B., E.B., A.B., Appellees.
No. 1 CA-JV 21-0077
FILED 7-27-2021
Appeal from the Superior Court in Maricopa County
No. JD36780
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant Amber B.
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Jody B.
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
AMBER B., JODY B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Amber B. (“Mother”) appeals the superior court’s order
terminating her parental rights to her daughters A.B., E.B., and I.B. (“the
children”). Jody B. (“Father”) appeals the superior court’s order
terminating his parental rights to A.B. and E.B. For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In December 2018, the Department of Child Safety (“DCS”)
received a report about the living conditions at the children’s maternal
grandmother’s home, where the children lived with Mother and Father.
DCS investigated and found animal feces, garbage, and rotting food in the
home. There were piles of clothing, trash, and furniture stacked to the
ceiling which posed a hazard of falling on the children. The investigator
observed dangerous items within the children’s reach, including pill and
alcohol bottles, marijuana, drug paraphernalia, medication, a flask, sharp
objects, buckets of water which posed a drowning threat, and wires and
cords. The investigator further observed two-year-old A.B. walking
barefoot through the animal feces. Although A.B. was a toddler, she was
still primarily bottle-fed, and her nutrition came mostly from milk. Mother
allowed maternal grandmother to care for the children while the
grandmother was under the influence of marijuana, which she told DCS she
used daily to “control her seven personalities.”
¶3 DCS removed the children from the home and filed a
dependency petition. At the time of the removal, the children had bedbug
bites. E.B. and I.B. disclosed witnessing domestic violence between
maternal grandmother and her friend. They reported they did not have
enough food to eat, and that Mother and Father used marijuana. Mother
told DCS the children were “slow” and that E.B. was on the autism
spectrum, but she had never sought a professional diagnosis. A.B. and E.B.
were later diagnosed with speech delays; E.B. was diagnosed with ADHD
and was placed on an individualized education plan for developmental
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AMBER B., JODY B. v. DCS, et al.
Decision of the Court
delay. Mother told DCS she had a history of domestic violence with Father
and had been sexually abused by him. Mother told DCS that she last used
marijuana a month before the investigation and had not used
methamphetamines for six years. Father told DCS he had last used
methamphetamines a year before the investigation and had not used
marijuana in five years. He acknowledged a history of domestic violence.
¶4 In February 2019, the superior court found the children were
dependent. DCS instructed Mother and Father that before they could
reunify with the children, they needed to provide a safe home for them,
address their domestic violence problem, demonstrate that they could
protect the children, meet their needs, and provide appropriate
supervision.
¶5 DCS offered Mother and Father reunification services,
including urinalysis testing, hair follicle testing, parent-aide services, case-
aide services, visitation, individual counseling, psychological evaluations,
psychiatric evaluation (Mother), substance abuse treatment (Father),
transportation, case management services, and multiple referrals to Family
Involvement Center for assistance with finding safe housing and for
parenting classes and support.
¶6 Mother underwent a psychological evaluation with Dr. James
S. Thal in March 2019. Mother denied that maternal grandmother’s home
had been in poor condition and did not understand why DCS had removed
the children. Mother described maternal grandmother as having multiple
personalities, including some that were “quite disturbing” or violent.
Although the grandmother regularly had violent outbursts and could “flip
out” and curse at the children at any time, Mother was not concerned about
the children being around her. Mother denied that the children had ever
been neglected or had witnessed domestic violence between herself and
Father. Mother expressed a desire to divorce Father and told Dr. Thal that
he was not involved in the children’s care. Mother was unable to identify
the most critical necessities a parent must provide a child. She told Dr. Thal
that she had been tormented by a demon that told her what to do.
¶7 Dr. Thal diagnosed Mother with an intellectual disability and
an adjustment disorder with mixed anxiety and depressed mood. Dr. Thal
concluded that Mother’s mental deficiency made her unable to understand
her parenting responsibilities. Dr. Thal opined that Mother’s prognosis for
being able to demonstrate minimally adequate parenting skills in the
foreseeable future was poor, and that a child in her care would be at risk for
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AMBER B., JODY B. v. DCS, et al.
Decision of the Court
neglect. Dr. Thal concluded that Mother was unable to parent
independently.
¶8 Father underwent a psychological evaluation with Dr. Thal in
March 2019. Father told Dr. Thal that he was the “breadwinner” and
Mother was solely responsible for the children’s care and would continue
to be their full-time caregiver in the future. Dr. Thal gave Father a rule out
diagnosis of antisocial personality disorder and diagnosed him with
stimulant use disorder (methamphetamines) in early remission and alcohol
use disorder. Dr. Thal noted that Father shared Mother’s delusional
thinking and also believed that a demon had been tormenting the family
when they lived in Globe. Dr. Thal opined that a child would be at risk for
neglect by Father if he were abusing alcohol and drugs and concluded that
the prognosis for Father being able to demonstrate minimally adequate
parenting skills in the future was “guarded.” Besides Father’s substance
abuse, Dr. Thal found it “disturbing” that Father denied that grandmother’s
home had been unhygienic and unsafe for the children. Dr. Thal was also
concerned that Father did not recognize that Mother’s parenting skills were
deficient. Dr. Thal noted that the “major concern” was that Father would
likely be busy with work and delegate his parental responsibilities to
Mother.
¶9 In October 2020, DCS moved to terminate Mother’s parental
rights to the children, and Father’s parental rights to A.B. and E.B., pursuant
to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c) (fifteen
months’ out-of-home placement). As to Mother, DCS also moved to
terminate parental rights pursuant to A.R.S. § 8-533(B)(3) (mental
deficiency).
¶10 In February 2021, after a termination adjudication hearing,
the superior court terminated Mother’s and Father’s parental rights on the
grounds alleged in the motion. The court found that termination was in the
children’s best interests.
¶11 Mother and Father timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
DISCUSSION
¶12 Under Arizona law, before the superior court may terminate
parental rights it must find that the moving party has proven one or more
of the statutory grounds for termination by clear and convincing evidence.
A.R.S. § 8-537(B). The court must also find by a preponderance of the
evidence that termination is in the child’s best interests. Kent K. v. Bobby M.,
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AMBER B., JODY B. v. DCS, et al.
Decision of the Court
210 Ariz. 279, 284, ¶ 22 (2005). We view the evidence and the reasonable
inferences to be drawn from it in the light most favorable to affirming the
superior court’s termination order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93, ¶ 18 (App. 2009). We will not reverse the superior court’s order
unless reasonable evidence does not support the superior court’s factual
findings. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App.
2010).
¶13 Mother and Father both argue that insufficient evidence
supported the superior court’s finding that termination was warranted
under A.R.S. § 8-533(B)(8)(c). Neither parent challenges the superior court’s
best interests finding. The superior court may terminate parental rights
under A.R.S. § 8-533(B)(8)(c) if DCS has made diligent reunification efforts,
the parent has been unable to remedy the circumstances causing the
parent’s child to be in an out-of-home placement for fifteen months or
longer, and “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.”
¶14 Here, the children had been in an out-of-home placement for
more than two years when the superior court terminated Mother’s and
Father’s parental rights. Father argues that he remedied the circumstances
causing A.B. and E.B. to be in an out-of-home placement, and that there was
no evidence he would be unable to effectively parent them in the near
future. Mother argues no reasonable evidence supported the superior
court’s finding that she was unable to remedy the circumstances causing
the children to be in an out-of-home placement and that DCS failed to make
diligent efforts to provide her with appropriate reunification services.
¶15 DCS makes diligent efforts to provide reunification services
when it provides a parent with the time and opportunity to participate in
programs designed to help the parent become an effective parent. Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS need
not provide “every conceivable service” or ensure that the parent actually
participates in the services offered. Id. Nor is it required to provide a parent
with unlimited time to take positive steps toward reunification. Maricopa
Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). DCS is not
required to undertake futile reunification efforts and is required to
undertake only those measures with a reasonable prospect of success. Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶16 The record shows that DCS offered Mother case management
services, urinalysis testing, mental health services, parenting classes
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AMBER B., JODY B. v. DCS, et al.
Decision of the Court
through Family Involvement Center, supervised visitation, case-aide
services, parent-aide services, and transportation. The superior court
recited at length the evidence supporting its conclusion that clear and
convincing evidence demonstrated that DCS had made diligent
reunification efforts but that those efforts proved unsuccessful. Sufficient
evidence supported that determination.
¶17 In making a determination that a parent has been unable to
remedy the circumstances causing the child to be in an out-of-home
placement, we construe those circumstances to mean the circumstances
existing at the time of the termination that prevented a parent from
appropriately providing for the parent’s child. Marina P. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007); see also Donald W. v. Dep’t of
Child Safety, 247 Ariz. 9, 17, ¶ 26 (App. 2019) (court must consider “both the
origin [of the dependency] and any cause arising during the dependency”).
¶18 At the time of the termination adjudication hearing, Mother
and Father had participated in many of the services DCS requested they
participate in, including supervised visitation, drug testing, individual
counseling, substance abuse treatment (Father) and psychological
evaluations. Mother and Father also participated in some parenting classes
but did not complete that service before the hearing.
¶19 Mother and Father participated in, but did not successfully
complete, parent-aide services. The parent aide noted that Mother and
Father allowed I.B. and E.B. to parent their younger sister. Father failed to
consistently demonstrate adequate parenting skills and continued to
believe that Mother could safely parent the children on her own. Mother
failed to meet the children’s needs, had to be reminded to practice basic
hygiene during visits, and failed to recognize safety threats to the children.
At times, Mother would disassociate or “zone out” during visits.
¶20 After Mother and Father were unsuccessfully closed out of
parent-aide services, DCS arranged for a case aide to supervise visits with
the children. Mother and Father were inconsistent with attending visits,
but when they did attend were unable to control the two younger children’s
behaviors. The case aide reported that when Father attempted to discipline
A.B. and E.B. Mother would remain seated and “continue[] with what she
[was] occupied with.” Neither Father nor Mother demonstrated an ability
to provide the children with a clear expectation of how they should behave,
and they did not follow through with consequences for bad behavior.
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AMBER B., JODY B. v. DCS, et al.
Decision of the Court
¶21 The superior court found that Mother and Father had made
some improvements, but ultimately found that their efforts were
insufficient. Over the course of the more than two-year dependency, Father
never demonstrated an understanding of Mother’s intellectual disability
and her limitations as a caregiver. During the dependency, Mother and
Father agreed to cooperate with a responsible adult who would need to be
present when Father was at work to ensure the children’s needs were met
as part of an in-home safety plan, but they were unable to identify a suitable
adult willing to fill that role. The DCS case manager testified that Father,
who had not been involved in the children’s care, would likely permit
Mother to parent the children without supervision, placing them at risk of
neglect. Sufficient evidence supported the superior court’s determination
that Mother and Father were unable to remedy the circumstances causing
the children to be in an out-of-home placement for fifteen months or longer
and that there was a substantial likelihood that they would not be capable
of exercising proper and effective parental care and control in the near
future. See A.R.S. § 8-533(B)(8)(c).
¶22 Because we affirm the superior court’s termination of
Mother’s parental rights to the children on out-of-home placement
grounds, we need not consider her challenge to the alternate ground of
mental deficiency. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 3 (App. 2002).
CONCLUSION
¶23 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to A.B., E.B., and I.B., and
Father’s parental rights to A.B. and E.B.
AMY M. WOOD • Clerk of the Court
FILED: AA
7