Ashley S. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ASHLEY S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.S., Appellees.
No. 1 CA-JV 22-0117
FILED 10-18-2022
Appeal from the Superior Court in Maricopa County
No. JD23453
The Honorable Lori Bustamante, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer Blum
Counsel for Appellee, Department of Child Safety
ASHLEY S. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.
G A S S, Vice Chief Judge:
¶1 Ashley S. appeals the superior court’s order terminating her
parent-child relationship with her biological child, A.S., under three
grounds: prolonged substance abuse, 15-months’ out-of-home placement,
and prior termination. Because reasonable evidence supports the superior
court’s findings, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the evidence, and reasonable inferences
drawn from it, in the light most favorable to sustaining the superior court’s
decision. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282,
¶ 13 (App. 2002).
¶3 Mother has four biological children. Her fourth child was
born the summer of 2022. The superior court terminated mother’s parental
rights to her first two children on substance-abuse grounds. The second
termination occurred in November 2020, the same month mother’s third
child, A.S., was born. A.S. was born substance-exposed to amphetamines
and fentanyl and the superior court authorized A.S.’s temporary out-of-
home placement two days after her birth.
¶4 Days later, the Department of Child Safety (DCS) filed a
dependency petition, alleging mother could not effectively care for A.S.
because of mother’s long history of substance abuse and inability to create
a “stable or safe living environment.” The superior court found A.S.
dependent as to mother, and established a family reunification case plan,
when mother failed to appear at a January 2021 pretrial conference.
¶5 DCS provided mother with reunification services throughout
A.S.’s dependency. For most of the dependency, mother sporadically
engaged in those services. She more consistently engaged in the months
leading up to the termination adjudication. Even after A.S. was born and
after mother was aware of her fourth pregnancy, mother tested positive for
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ASHLEY S. v. DCS et al.
Decision of the Court
methamphetamines, alcohol, and opiates, though she more recently began
testing negative.
¶6 In January 2022, given a lack of progress, the superior court
changed the case plan to severance and adoption. In April 2022, after a
March 2022 adjudication on DCS’s motion to terminate, the superior court
terminated mother’s rights based on prolonged substance abuse, 15-
months’ out-of-home placement, and prior termination, also finding
termination was in the best interests of the child. Mother timely appealed.
This court has jurisdiction under article VI, section 9, of the Arizona
Constitution, and A.R.S. §§ 8-235, 12-120.21.A.1, and 12-2101.A.1.
DISCUSSION
¶7 A superior court may terminate a parent’s rights if clear and
convincing evidence establishes at least one statutory ground and if a
preponderance of the evidence shows termination is in the child’s best
interests. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018).
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,” this court will affirm an order terminating parental rights if
reasonable evidence supports the order. See Jordan C. v. Ariz. Dep’t of Econ.
Sec., 233 Ariz. 86, 93, ¶ 18 (App. 2009) (citations omitted).
¶8 Mother—without reference to any specific termination
ground—challenges the superior court’s termination of her parental rights,
arguing DCS failed to make “diligent efforts” to reunify her with A.S.
Specifically, mother argues DCS failed to offer recommended counseling
and necessary parenting classes.
¶9 The State argues mother waived her diligent efforts challenge
by not objecting in the superior court. But during A.S.’s termination
hearing, mother raised the diligent efforts issue by “testifying about the
services actually provided.” See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234
Ariz. 174, 178, ¶ 14 (App. 2014). As such, we address the merits.
¶10 DCS argues it reasonably and diligently attempted to reunify
mother and A.S. DCS presumptively must make reasonable efforts to
provide services to parents and their children. See id. at 177, ¶ 12; see also
A.R.S. § 8-846.A. But DCS need neither “provide every conceivable service”
nor ensure parents participate in offered services. Maricopa Cnty. Juv. Action
No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
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ASHLEY S. v. DCS et al.
Decision of the Court
¶11 The superior court found DCS made reasonable and diligent
efforts to reunify the family, including parent-aide services, visitations,
drug testing, substance-abuse assessment and treatment, case management,
transportation, psychological evaluation, and team decision making
meetings. Mother also admitted—and the records supports—the superior
court’s findings for drug testing, substance-abuse assessment, and
treatment. The record also supports the superior court’s other findings
regarding services.
¶12 Mother specifically argues DCS did not offer recommended
counseling and necessary parenting classes. Mother relies on the testimony
of a case manager who worked on mother’s case for a few months leading
up to the termination hearing. That case manager started on mother’s case
in December 2021 and admitted to not providing “new” services from then
until the termination hearing in March 2022. But DCS is neither “required
to provide every conceivable service” nor ensure parents participate in
offered services. See JS-501904, 180 Ariz. at 353. Because DCS had provided
those services earlier and mother’s participation was sporadic, reasonable
evidence supports the superior court’s findings regarding the services DCS
provided and its ultimate decision to terminate mother’s rights. See JS-
501904, 180 Ariz. at 353.
¶13 Last, mother argues services were not futile. Because the
superior court did not base its decision on a futility finding, this court need
not address it. Because mother does not challenge the court’s best interests
determination, we assume she concedes the finding as accurate. See Britz v.
Kinsvater, 87 Ariz. 385, 388 (1960).
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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