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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MONIQUE H.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, 

D.H., D.F., R.F., C.F.,

Appellees.

No. 1 CA-JV 18-0382 

Appeal from the Superior Court in Maricopa County

No. JD33406

The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

Denise Lynn Carroll, Esq., Scottsdale

By Denise Lynn Carroll

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By JoAnn Falgout

Counsel for Appellee DCS

FILED 3-5-2019
MONIQUE H. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Monique H. ("Mother") appeals the superior court order 

severing her parental rights to her four children, born in 2003, 2006, 2008

and 2010, respectively. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Department of Child Safety ("DCS") took the children into 

custody in November 2016 after it received a report that they had been 

living with their maternal grandmother since February 2016 because 

Mother was homeless and her whereabouts were unknown. Additionally, 

DCS received information that Mother had a long history of substance 

abuse, might be involved with selling drugs, had a history of domestic 

violence with her significant other, had threatened to kill the children and 

had been contacted by police "numerous times" due to her "aggressive and 

erratic behavior."

¶3 Under a case plan of reunification, DCS offered Mother 

substance-abuse testing and treatment, parent-aide services, counseling 

and visitation. Mother had weekly supervised visits with the children and,

as of June 2017, was engaging in mental-health services through a selfreferral.

¶4 On September 5, 2017, Mother had an intake interview with a 

parent aide, but thereafter failed to meet consistently with the aide. Mother 

likewise completed a substance-abuse treatment intake, but was closed out 

unsuccessfully in May 2018. She later completed 21 group sessions but 

missed 19 sessions between March 21, 2018 and her severance hearing in 

July 2018.

¶5 From the beginning of the dependency proceeding in 

November 2016, Mother was supposed to engage in random substanceabuse testing twice a week. She failed to participate in testing through the 

first provider she was referred to, however, and that provider twice closed 

her out unsuccessfully. Mother did not call in for substance-abuse testing 
MONIQUE H. v. DCS, et al.

Decision of the Court

3

until March 26, 2018. From then through July 2018, Mother called in only 

13 times out of 107 days but gave a urine sample each time it was required 

when she did call. Each of the five samples she submitted came back 

positive for marijuana, but Mother has a medical marijuana card.

¶6 When DCS first became involved in this case in November 

2016, the children were staying with their maternal grandmother in Arizona 

and DCS initially permitted the children to remain with her. In November

2016, however, DCS took physical custody of the children and placed them 

in foster care. In August 2017, the children were placed with their paternal 

grandmother in Mississippi. Mother moved to Mississippi to be closer to 

the children in November 2017, but she failed to participate in services 

while there before she returned to Arizona at the end of December 2017. 

Later, one of the children returned to Arizona for psychiatric care and was 

placed with his maternal uncle.

¶7 On November 13, 2017, the superior court found the children 

dependent as to Mother and changed the case plan to guardianship. Over 

Mother's objection, on January 16, 2018, the superior court granted DCS's 

request to change the case plan to severance and adoption. DCS then 

moved to terminate Mother's parental rights. At the subsequent severance 

hearing, the court heard testimony from Mother and a DCS child specialist.

¶8 Mother testified her partner had been physically abusive to 

her for many years, including knocking out her teeth and breaking her nose. 

She stated that in more recent years he had stopped physically abusing her

but that he remained mentally and emotionally controlling and abusive. 

Mother acknowledged that the children had witnessed episodes of

domestic violence between her and her partner. Despite the abuse, she 

testified that she has been with her partner "on and off" for 14 years. She 

testified she left her partner twice before, only to return, and left him again 

about four weeks before the severance hearing. The DCS specialist, 

however, testified she believed Mother and her abusive partner might still 

be together because, when the specialist called Mother's phone a week or 

so before trial, Mother's partner answered the phone and told her they were 

together. The specialist also testified that she referred Mother to 

community resources for victims of domestic abuse, but Mother only 

attended two support-group meetings. On the other hand, Mother testified

she completed eight weeks of domestic-violence classes.

¶9 The DCS specialist further testified that Mother failed to 

provide proof that she was employed or evidence of her income. She also 
MONIQUE H. v. DCS, et al.

Decision of the Court

4

testified that Mother had not shown she had obtained appropriate housing

by providing DCS with her current address.

¶10 In addressing the children's placement, the specialist noted 

that three of the children still lived with their paternal grandmother in 

Mississippi, while one of the children lived with a maternal uncle in 

Arizona. The specialist testified that the paternal grandmother was 

providing a stable home and was meeting all the children's educational, 

emotional and mental needs. She also testified the three children had 

expressed a desire to remain with their grandmother and that the 

grandmother was willing to adopt them. The specialist testified that the 

child living in Arizona had stabilized his behavior with the aid of services. 

She testified the child's uncle was providing a safe, stable, drug-free, 

violence-free environment; was able to meet all the child's educational, 

mental and emotional needs; and was willing to adopt the child.

¶11 The court granted DCS's motion, severing Mother's parental 

rights under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a) 

(2019) (nine months' time in care).1 Mother timely appealed. We have 

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, 

A.R.S. §§ 8-235(A) (2019), 12-120.21(A)(1) (2019), -2101(A)(1) (2019) and 

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

DISCUSSION

¶12 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 

out 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). 

"Because the juvenile court is in the best position to weigh evidence and 

assess witness credibility, we accept [that] court's findings of fact if 

reasonable evidence and inferences support them, and will affirm a 

severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F., 

239 Ariz. 1, 3, ¶ 9 (2016).

¶13 Under A.R.S. § 8-533(B)(8)(a), parental rights may be 

terminated when

 

1 Absent material change since the relevant date, we cite the current 

version of a statute.
MONIQUE H. v. DCS, et al.

Decision of the Court

5

[t]he child has been in an out-of-home placement for a 

cumulative total period of nine months or longer pursuant to 

court order . . . and the parent has substantially neglected or 

wilfully refused to remedy the circumstances that cause the 

child to be in an out-of-home placement.

The circumstances at issue under this statutory ground for severance are 

those "existing at the time of the severance." Marina P. v. Ariz. Dep't of Econ. 

Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).

¶14 On appeal, Mother does not contest the court's findings that 

the children had been in out-of-home placement for more than nine months, 

nor does she argue that DCS failed to comply with its obligation to offer her 

appropriate reunification services. She does, however, argue that the 

evidence does not support the court's finding that she substantially 

neglected or willfully refused to remedy the circumstances that caused the 

children to be taken into care.

¶15 In support of her contention, Mother points to evidence that 

she participated in parenting and domestic-violence classes and that she 

participated in telephonic visitations with her out-of-state children and 

enjoyed unsupervised daily contact with her child who resides in Arizona. 

She also cites evidence that she has ended her relationship with her abusive 

partner, which, she argues, will allow her to "exercise proper and effective 

parental care and control" of the children.

¶16 The record, however, contains substantial evidence in 

support of the superior court's finding that Mother substantially neglected 

or willfully refused to remedy the circumstances that caused her children 

to remain in care of the State.

¶17 To begin with, the court acknowledged Mother's testimony 

that she participated in eight weeks of parenting and domestic-violence 

classes, but also noted that Mother stopped going to those classes when she 

moved to Mississippi. Mother acknowledged during the hearing that she

had endured years of domestic abuse, some of it in the presence of the 

children. She testified that she had tried to leave her abuser at least twice 

before, but returned to him both times before she assertedly broke things 

off again just before the severance hearing. And, as noted, the DCS 

specialist testified Mother and her abusive partner may still be together, 

given that the partner picked up Mother's telephone when the specialist

telephoned shortly before trial.
MONIQUE H. v. DCS, et al.

Decision of the Court

6

¶18 Mother's substance abuse was another issue. At trial, Mother 

acknowledged a history of abusing prescription drugs. Although she 

testified her doctor had ceased giving her prescription painkillers a few 

months before the termination hearing, her persistent failures to participate 

in substance-abuse testing and treatment over the period of the proceedings 

further supported the court's findings in support of termination.

¶19 Finally, although Mother cites her participation in parent-aide 

services and visitation, the superior court found that the parent-aide and 

visitation services Mother participated in "were not fruitful" because 

Mother would often violate visitation guidelines.

¶20 In sum, based on the record, the superior court did not abuse 

its discretion by finding that DCS had proved under § 8-533(B)(8)(a) that 

Mother substantially neglected or willfully refused to remedy the 

circumstances that caused her children to remain in care of the State.

¶21 Mother also argues that DCS failed to prove by a 

preponderance of the evidence that severance was in the children's best 

interests. Specifically, Mother points to evidence that she is bonded with 

the children and contends that severance would create a greater detriment 

to the children than allowing her additional time to participate in services.

¶22 The "termination is in the child's best interests if either: (1) the 

child will benefit from severance; or (2) the child will be harmed if 

severance is denied." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 13 

(2018). One of the factors that may favor termination "is the immediate 

availability of an adoptive placement." Audra T. v. Ariz. Dep't of Econ. Sec., 

194 Ariz. 376, 377 (App. 1998).

¶23 The superior court found that all the children are in familial 

adoptive placements and want to be adopted by family. The evidence 

recited above supports the superior court's findings that DCS proved by a 

preponderance of the evidence that termination is in the children's best 

interests.
MONIQUE H. v. DCS, et al.

Decision of the Court

7

CONCLUSION

¶24 Because the record fully supports the superior court's 

findings and conclusions, we affirm its order severing Mother's parental 

rights.