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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VICTOR B., ELIZABETH B.,

Appellants,

v.

DEPARTMENT OF CHILD SAFETY, E.M., C.B.,

Appellees.

No. 1 CA-JV 17-0005

Appeal from the Superior Court in Maricopa County

No. JD510990

The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant Father

Denise L. Carroll, Esq, Scottsdale

By Denise Lynn Carroll

Counsel for Appellant Mother

Arizona Attorney General's Office, Tucson

By Dawn R. Williams

Counsel for Appellee DCS

FILED 9-28-2017
VICTOR B., ELIZABETH B. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

¶1 Elizabeth B. ("Mother") appeals the superior court's order 

terminating her parental rights to her two children, and Victor B. ("Father") 

appeals the order terminating his parental rights to his child. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother is the biological parent of a girl born in 2012.1 Mother 

and Father together are the biological parents of another girl born in 2014. 

In April 2013, the Department of Child Services ("DCS") removed the older 

girl from Mother and placed her with the girl's maternal grandmother; the 

superior court found the child dependent based on evidence that Mother 

had a substance-abuse problem, lacked stable housing and had neglected 

the child.

2 Mother participated in parent-aide services, completed 

substance-abuse counseling and rented an apartment with Father. After the 

younger girl was born, DCS returned the older girl to Mother in September 

2014.

¶3 Less than a month later, Mother and Father were involved in

a violent altercation with Mother's family outside a restaurant in Gilbert. 

Father stabbed maternal grandmother's boyfriend, and Mother shouted 

profane threats at maternal grandmother. Both children witnessed these 

events, and both parents were arrested. DCS eventually took both children

into custody and filed a dependency action for the younger one five days 

later. The superior court found the child dependent as to both parents in 

 

1 We view the facts and draw all reasonable inferences in the light 

most favorable to upholding the superior court's order. Jesus M. v. Ariz. 

Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002).

2 The superior court also found the child dependent as to her 

biological father, whose rights later were severed. He is not a party to this 

appeal.
VICTOR B., ELIZABETH B. v. DCS, et al.

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April 2015; meanwhile, the dependency for the older child remained in 

place.

¶4 DCS recommended Father attend a substance-abuse 

treatment program, but he refused; he also missed some angermanagement counseling sessions and would not attend parenting classes

or participate in one-on-one supervised visitation meetings. Father 

unsuccessfully closed-out of substance-abuse treatment for the second time 

in December 2014. DCS recommended Mother attend parenting-skills 

groups and domestic-violence counseling. In December 2014, Father and 

Mother decided to enroll in treatment programs at Potter's House, a 

counseling center with which DCS had no contract. The parents' case 

manager advised them DCS would not be able to pay for services at Potter's 

House and told them that DCS could pay for the same services at a 

comparable facility. Mother successfully completed her domestic-violence 

treatment program on July 22, 2015.

¶5 On July 30, 2015, only one week later, police came to Mother 

and Father's apartment to investigate a claim of domestic violence. Father 

escalated the situation by raising his voice to the officers. The officers 

arrested Father, who proceeded to bash his own head on the center divider 

of the squad car, drawing blood. Father eventually pled guilty to disorderly 

conduct with domestic violence and attempted aggravated assault and was 

given a two-year term of probation.

¶6 Meanwhile, Mother stopped attending her parenting-skills 

classes when her insurance was cancelled, and Potter's House terminated 

her from the program in September 2015. Potter's House similarly 

terminated Father from substance-abuse and anger-management 

treatment. Father and Mother also failed to successfully complete their

supervised visitation. Counselors unsuccessfully closed Father out of 

another substance-abuse counselling referral in May 2016. Mother began 

counseling for depression and substance abuse, but the provider cancelled 

services for lack of contact in June 2016. Father did, however, successfully 

complete domestic-violence treatment in July 2016.

¶7 DCS moved to terminate Mother's and Father's parental 

rights in December 2015. The superior court held a hearing over five days 

in November 2016. During the hearing, the court ordered Father to submit 

a drug test, and he tested positive for methamphetamine.

¶8 The superior court terminated both parents' rights on the 

ground of 15 months' time-in-care under Arizona Revised Statutes 
VICTOR B., ELIZABETH B. v. DCS, et al.

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("A.R.S.") section 8-533(B)(8)(c) (2017) and in addition terminated Father's 

rights on the ground of prolonged abuse of dangerous drugs, controlled 

substances or alcohol under A.R.S. § 8-533(B)(3).3 Mother and Father each 

timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of 

the Arizona Constitution, A.R.S. §§ 8-235(A) (2017), 12-2101(A)(1) (2017) 

and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

A. General Principles.

¶9 The right to custody of one's child is fundamental but not 

absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 

(2000). The superior court may terminate a parent-child relationship upon 

clear and convincing evidence of at least one of the statutory grounds set 

forth in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, 

the court must find by a preponderance of the evidence that termination is 

in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 

(2005).

¶10 We review a termination order for an abuse of discretion. 

Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). 

Because the superior court is in the best position to "weigh the evidence, 

observe the parties, judge the credibility of witnesses, and make 

appropriate findings," we will accept its findings of fact unless no 

reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 

Ariz. 278, 280, ¶ 4 (App. 2002). On appeal, this court will affirm a severance 

order unless it is clearly erroneous. Id.

¶11 Under § 8-533(B)(8)(c), DCS must show "the child is being 

cared for in an out-of-home placement," the child "has been in an out-ofhome placement for a cumulative total period of fifteen months or longer," 

DCS "has made a diligent effort to provide appropriate reunification 

services," "the parent has been unable to remedy the circumstances that 

cause the child to be in an out-of-home placement 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." Under the statute, 

the "circumstances which cause the child to be in an out-of-home 

placement" are those that exist at the time of severance. Marina P. v. Ariz. 

Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).

 

3 Absent material revision after the relevant date, we cite a statute's 

current version.
VICTOR B., ELIZABETH B. v. DCS, et al.

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B. Father's Appeal.

¶12 In finding that Father was unable to remedy the 

circumstances that caused his child's out-of-home placement, the superior 

court cited the two domestic-violence incidents as "proof of Father's 

uncontrolled anger." The court also concluded that Father "plays down the 

severity of his behavior" and continued to use drugs through the 

dependency. Father argues that the superior court erred in finding he had 

been unable to remedy the circumstances that caused the out-of-home 

placement, but the two domestic-violence incidents, separated only by 

months (the second of which occurred during the dependency), along with 

Father's drug use and failure to complete numerous rehabilitative services,

reasonably support the superior court's finding that Father was unable to 

remedy the circumstances giving rise to his daughter's out-of-home 

placement. Cf. Desiree S. v. Dep't of Child Safety, 235 Ariz. 532, 534, ¶ 11 (App. 

2014) (insufficient evidence supported severance when parent had 

remedied circumstances by "successfully complet[ing] all of the reasonable 

services offered to implement family reunification").

¶13 Father further argues DCS failed to show it "made diligent 

efforts to provide [him] with rehabilitative services." Father contends the 

psychologist who performed his psychosexual examination was biased and 

he implies such alleged bias negated DCS's efforts to provide services. To 

meet its duty of "diligent effort," DCS "need not provide every conceivable 

service, [but] it must provide a parent with the time and opportunity to 

participate in programs designed to improve the parent's ability to care for 

the child." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37 

(App. 1999) (citation and quotation omitted). Father contends the 

psychologist who examined him was biased against him because she was

married to a prison inmate at the time she examined Father. Father does 

not explain such bias, nor does the record demonstrate bias. In any event, 

based on evidence showing that DCS provided Father mental health 

counseling, parent-aide services, domestic-violence counseling and 

substance-abuse counseling, along with transportation to each of these 

services, the superior court did not err in finding DCS showed it had made 

diligent efforts to provide Father with appropriate reunification services.4

 

4 Father does not argue severance will not be in his child's best 

interests. Because we are affirming the superior court's severance of 

Father's parental rights based on 15 months' out-of-home placement, we 

need not consider whether the court erred in finding the evidence also 
VICTOR B., ELIZABETH B. v. DCS, et al.

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C. Mother's Appeal.

¶14 Mother argues DCS failed to make a "diligent effort to provide 

appropriate reunification services" because it did not pay for her counseling 

at Potter's House after Mother's insurance coverage ran out. See A.R.S. § 8-

533(B)(8). Mother's caseworker, however, testified she had offered Mother 

and Father the same services they were receiving at Potter's House at a 

different counseling center with which DCS had a contract. The caseworker

further testified she had told Mother and Father before they began services 

at Potter's House that they would need to pay for those services because 

DCS had no contract with Potter's House. DCS also offered the parents 

transportation to the services at the DCS contractor. This evidence 

reasonably supports the superior court's finding that DCS "made a diligent 

effort to provide appropriate reunification services." See A.R.S. § 8-

533(B)(8).

¶15 Mother further argues the superior court erred in finding that

she will not be capable of exercising proper parental care in the near future. 

Mother asserts she could be a better parent if given more time to complete 

services. Although Mother did complete some services in 2014, her track 

record grew steadily worse after DCS removed the children in October 

2014. The superior court noted that "Mother has not embraced individual 

counseling to address the difficulties she encountered growing up and how 

they impact her mental health, decision-making, and involvement with 

abusive men." After DCS filed for severance, Mother enrolled in individual 

counseling services, but the provider discharged her several months later 

because she had not attended a single individual counseling session. On 

the record presented, reasonable evidence supports the superior court's 

finding that Mother will be incapable of exercising proper parental care in 

the near future. See Maricopa County Juv. Action No. JD-561, 131 Ariz. 25, 28 

(1981) ("Implicit in this right of proper parental care are the rights to good 

physical care and emotional security.") (citation omitted).

¶16 Last, Mother argues severance is not in the best interests of 

her children because they have bonded with her. "A finding that the best 

interests of the child will be served by removal from a custodial relationship 

may be established by either showing an affirmative benefit to the child by 

removal or a detriment to the child by continuing in the relationship." 

Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557 (App. 1997). The 

superior court found that termination would benefit the children by freeing

 

satisfied the statutory ground of chronic drug or alcohol abuse. See Michael

J., 196 Ariz. at 251, ¶ 27.
VICTOR B., ELIZABETH B. v. DCS, et al.

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them from the drugs, domestic violence and instability they experienced in

Mother's home. Mother continued to live with Father after he pled guilty 

to domestic violence, and Father was still in the home when he tested 

positive for methamphetamine in November 2016, reasonably supporting

the superior court's finding.

CONCLUSION

¶17 For the foregoing reasons, we affirm the superior court's order 

terminating Mother's parental rights as to both children at issue in this 

action and terminating Father's parental rights as to the younger child at 

issue in this action.