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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JASMAINE H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.S., M.S., M.S., Appellees.
No. 1 CA-JV 21-0101
FILED 9-23-2021
Appeal from the Superior Court in Maricopa County
No. JD36739
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
JASMAINE H. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.
H O W E, Judge:
¶1 Jasmaine H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to Mk. S. and Ma. S., born in March 2017,
and Mt. S., born in November 2018. For the following reasons, we affirm.1
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Mother has abused substances since the age of 13 and has used marijuana
significantly since 18. The Department of Child Safety became involved
with Mother in 2017 when Mk. S. and Ma. S. were born substance-exposed.
It offered her substance-abuse treatment, but she failed to engage in the
service and was closed out unsuccessfully.
¶3 In April 2018, Father attempted to strangle Mother, who was
pregnant. Police intervened and charged Father with aggravated assault.
Three months later and while still pregnant, Mother threatened suicide, and
Father responded by choking her to unconsciousness. Police transported
her to a psychiatric recovery center where the examining nurse found that
she had injuries consistent with strangulation. After her stay in the recovery
center, she reconciled with Father.
¶4 In November 2018, Mt. S. was born substance-exposed. The
Department implemented a present danger plan that excluded Father from
the home and identified a responsible adult as the children’s full-time
caregiver. It then petitioned for an in-home dependency because of
Mother’s substance abuse, mental-health issues, and domestic violence, and
the juvenile court adjudicated the children dependent.
1 Mother is also the biological parent of M.R., born in December 2009.
The juvenile court dismissed the dependency as to her, however, after she
was returned to her biological father. Additionally, Talib S., the biological
father (“Father”) to Mk. S., Ma. S., and Mt. S., is not a party to this appeal.
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Decision of the Court
¶5 In January 2019, Mother and Father engaged in another
physical altercation. The police arrested Father for outstanding warrants
and Mother obtained an order of protection against him. The Department
permitted the children to remain in the home so long as Mother did not
allow Father into the home or have unsupervised visits with the children.
The Department also provided a Family Preservation Team that worked to
educate Mother about domestic violence. At the completion of the service,
she continued to minimize Father’s behaviors, and within the month, she
and Father had again engaged in domestic violence. Consequently, she was
admitted for mental-health observation and the children were placed in the
care of relatives. The Department took legal custody of the children and
placed them with a maternal aunt and uncle. It also conducted a Rapid
Response assessment of the children and found that Mk. S. was autistic and
nonverbal and that Ma. S. was developmentally delayed.
¶6 The Department required that Mother resolve her substance-
abuse, mental-health, and domestic-violence issues and demonstrate that
she could protect her children from unsafe caregivers before she could
reunify with her children. To achieve these goals, it provided her urinalysis
testing, substance-abuse treatment, psychological evaluations after 30 days
of sobriety, parent-aide services that included a domestic-violence
component, supervised visitation, and requested that she refer herself for
domestic-violence counseling.
¶7 In February 2019, she checked into a five-day inpatient
substance-abuse-treatment program where she admitted that she used
marijuana, used cocaine bi-monthly, and “occasionally” used Adderall.
After discharge, she declined to engage in the recommended out-patient-
treatment program and consistently tested positive for marijuana, having
received a medical marijuana card for chronic pain in March 2019.
¶8 In August 2019, Mother submitted to a psychological
evaluation with Dr. Leslie Montijo-Tai. Dr. Montijo-Tai diagnosed her with
post-traumatic stress disorder, unspecified personality disorder with
borderline and narcissistic traits, and cannabis-use disorder. She found that
Mother still lacked an understanding about the dangers of domestic
violence and that her untreated mental-health and substance-abuse issues
impaired her ability to build a healthy emotional connection with the
children and meet their needs.
¶9 In fall 2019, Mother referred herself to counseling through her
primary care provider and took an online class about the history of
addiction to address her substance abuse. In March 2020, she obtained
3
JASMAINE H. v. DCS et al.
Decision of the Court
another order of protection against Father. The Department commended
her progress and implemented a reunification plan for her and the children
in April 2020, including unsupervised visits. After she assured the
Department and her Family Reunification Team that she had “no
interactions with Father,” it moved to change the children’s physical
custody to Mother in June 2020.
¶10 Days later, however, the Department received a “taunting”
video that showed Father with the children the previous weekend. Mother
initially denied the event. When showed the video, however, she admitted
allowing Father into the home because she did not consider him a safety
threat and he had a right to see his children. The Department therefore
withdrew its motion to change custody, requested a change in case plan to
severance and adoption, which the court granted later that month, and
moved to terminate Mother’s parental rights on the 15 months in out-of-
home placement ground.
¶11 The Department continued to offer Mother urinalysis drug
testing, supervised visits with the children, and referred her for another
psychological evaluation with Dr. Stephanie Leonard, to determine
whether she would benefit from additional reunification services. Dr.
Leonard found that Mother still presented the same mental-health
diagnosis from her earlier evaluation. She reported that although Mother
had completed her services, her emotional issues prevented her from
applying the skills she had learned, and therefore “impacted her ability to
[protect the] children.” She opined that Mother had already received
reasonable services to assist her and that any additional time to
demonstrate the required behavioral changes could “negatively impact the
children.” Meanwhile, the children thrived in their placement with their
aunt and uncle, who met all their needs, complied with the safety plan, and
were willing to adopt all three children.
¶12 The court began a four-day severance trial in January 2021.
The Department’s case manager testified that while Mother had
substantially completed services, she had simply “gone through the
motions” and failed to make the required behavioral changes necessary to
reunify with her children. He stated that severance would serve the
children’s best interests because it allowed them to be adopted by their aunt
and uncle. Furthermore, Drs. Leonard and Montijo-Tai agreed that
Mother’s lack of insight about her involvement with domestic violence and
substance abuse would create continued emotional difficulties for her and
affect her ability to be a safe caretaker for the children.
4
JASMAINE H. v. DCS et al.
Decision of the Court
¶13 While Mother testified that she was not currently abusing
marijuana, she admitted that she used marijuana during her current
pregnancy despite being warned that it presented risks to the unborn child.
While she testified that she had addressed her domestic violence during her
services, she admitted that she did not feel threatened by Father and denied
having been abused by him. Her only concern was that the children would
mirror some of his behaviors.
¶14 The juvenile court terminated Mother’s parental rights on the
15 months in out-of-home placement ground. It found that despite diligent
services provided to Mother, she could not remedy her substance abuse,
mental health, and domestic-violence issues. It found that she had “gone
through the motions” of the services, had not changed her behavior, and
that a substantial likelihood existed that she would not be capable of
exercising proper and effective parental care and control in the near future.
The court further found that even if she had made improvements, they were
insufficient and too little, too late. It then found termination in the
children’s best interests because Mother was unable to handle the special
needs of her children on a day-to-day basis and because termination would
allow the aunt and uncle to adopt the children. Mother timely appeals.
DISCUSSION
¶15 Mother argues that the court erred in terminating her rights
and finding that termination was in the children’s best interests. A juvenile
court’s termination determination is reviewed for an abuse of discretion.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004). To
terminate parental rights, the juvenile court must find by clear and
convincing evidence the existence of at least one statutory ground under
A.R.S. § 8−533 and by a preponderance of the evidence that termination
would be in the child’s best interests. A.R.S. § 8–533(B); Ariz. R.P. Juv. Ct.
66(C); Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016).
Because the juvenile court is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts, Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (App. 2004),
we will affirm a termination decision unless no reasonable evidence
supports it, Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012).
¶16 To terminate parental rights for 15 months in an out-of-home
placement, the juvenile court must find clear and convincing evidence that
(1) the Department made diligent efforts to provide appropriate
reunification services; (2) the child has been in an out-of-home placement
for a cumulative total period of 15 months or longer under court order; (3)
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JASMAINE H. v. DCS et al.
Decision of the Court
the parent has been unable to remedy the circumstances that caused the
child to be in an out-of-home placement; and (4) a substantial likelihood
exists that the parent will be incapable of exercising proper and effective
parental care and control in the near future. A.R.S. § 8–533(B)(8)(c).
¶17 Reasonable evidence supports the juvenile court’s
termination of Mother’s parental rights. The children have been in out-of-
home placement for more than 15 months. The Department diligently
provided Mother with services, including two psychological evaluations,
outpatient substance abuse treatment, parent-aide services, dialectical
behavior therapy, supervised and unsupervised visits, and domestic-
violence counseling.
¶18 Mother, though, has been unable to remedy the circumstances
that caused the out-of-home placement and a substantial likelihood exists
that she will be incapable of exercising proper and effective parental care in
the near future. Despite being diagnosed with cannabis-use disorder and
referred to urinalysis testing and substance-abuse treatment, she refused
outpatient substance-abuse treatment and continuously tested positive for
marijuana. Although she took a class on the history of addiction in fall 2019,
it did not satisfy her substance-abuse treatment referral and did not change
her behavior. In fact, she continued to use marijuana while pregnant,
disregarding her doctor’s suggestion not to and warning that it would
likely have negative health consequences on her unborn child. She also
failed to fully disclose her substance abuse in both of her psychological
evaluations and continued to self-medicate with marijuana while rejecting
medication to treat her mental-health issues.
¶19 And Mother failed to adequately address her engagement in
domestic violence. On multiple occasions, Father had choked her to the
point that she lost, or was about to lose, consciousness. At the termination
hearing, she continued to minimize Father’s actions and maintained that he
had not physically abused her. Although she participated in domestic-
violence classes and therapies, there were numerous reports of police
involvement related to her and Father’s actions. Mother also disregarded
the Department’s safety plan and her children’s safety by allowing Father
into the home. Her reasoning for allowing Father into the home was only
that he had “a right” to visit his children, thereby placing her and Father’s
desires over the needs of her children’s. Evidence therefore supports the
juvenile court’s order terminating Mother’s parental rights to Mk. S., Ma.
S., and Mt. S.
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JASMAINE H. v. DCS et al.
Decision of the Court
¶20 Mother nonetheless argues that the Department failed to
show that it made diligent efforts because it abandoned reunification
services after it received Father’s taunting video. She claims that the court
abused its discretion in looking at Father’s video and not recognizing the
work Mother had put in over the case’s duration. Contrary to Mother’s
position, the video clearly and convincingly evidences that while Mother
superficially followed the Department’s requirements, she failed to attain
or regain the necessary skills to properly care for her children.
¶21 Moreover, the Department is not required to offer every
conceivable service to a parent. See Christina G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 231, 235 ¶ 15 (App. 2011). Nor is the Department required to
undertake rehabilitative measures that are futile or lack a reasonable
prospect of success. See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 192 ¶ 34 (App. 1999). Here, Mother demonstrated marked resistance to
change, despite her participation in the services provided to her.
¶22 Even so, the Department continued to provide supervised
visits after the incident and referred Mother for a psychological evaluation
with Dr. Leonard to determine what, if any, services would foster
reunification. Dr. Leonard opined, however, that Mother had already
received the services that would facilitate reunification and did not advise
that any additional services were required. The court, therefore, did not err
when it determined that the Department was not required to provide
additional services. Mother’s argument that if additional reunification
services had happened, she would have made the necessary changes is
speculative and ignores her own failure to follow her treatment plan and to
make the required changes throughout the dependency.
¶23 Mother argues next that the trial court erred in finding that
the Department proved by the preponderance of the evidence that
termination served the children’s best interests. Termination of parental
rights is in a child’s best interests if the child will benefit from the
termination or will be harmed if the relationship continues. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018). In determining whether the
child will benefit from termination, relevant factors to consider include
whether the current placement is meeting the child’s needs, an adoption
plan is in place, and if the child is adoptable. Demetrius L., 239 Ariz. at 1,
3–4 ¶ 12.
¶24 Reasonable evidence supports the juvenile court’s finding
that termination of Mother’s parental rights was in the children’s best
interests. The Department’s case manager testified that the children were in
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JASMAINE H. v. DCS et al.
Decision of the Court
an adoptable placement that were meeting their needs and special needs.
Both Drs. Leonard and Montijo-Tai testified that because Mother has failed
to address her substance abuse and lacked insight into her mental-health
issues, she would be unable to meet the children’s needs and special needs
if returned to her. The juvenile court, therefore, did not err in terminating
Mother’s parental rights to Mk. S., Ma. S., and Mt. S.
CONCLUSION
¶25 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8