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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

KAYOMA S.
, Appellant
,

v.

DEPARTMENT OF CHILD SAFETY, A.M., A.M., E.M., G.M.
, Appellee s

.
No. 1 CA

- JV 16

- 0369

Appeal from the Superior Court in Maricopa County

No. JD23610 The Honorable Cari A. Harrison
, Judge

AFFIRMED

COUNSEL
Czop Law Firm, PLLC
, Higley By Steven Czop Counsel for Appellant

Arizona Attorney General’s Office
, Phoenix By Amber E. Pershon C ounsel for Appellee D epartment of C hild S afetyKAYOMA S. v. DCS, et al. Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

J O N E S , Judge:

¶1 Kayoma S. (Mother) appeals the juvenile court’s order terminating he r parental rights to A.M., A.A.M. , E.M., and G.M. (the Children). For the foll owing reasons, we affirm

.

FACTS 1 AND PROCEDURAL HISTORY

¶2 In Ap ril 2013, two

- month

- old E.M. was hospitalized for seizures result ing from head trauma . The hospital suspected the injury was

non

- accidental and contacted the police. The subsequent investigation indicated the Children’s father (Father) may have injured E.M. through “rough play” while Mother was working.

¶3 Thereafter , the Department of Child Safety (DCS) 2 assumed temporary custody of four

- year

- old A.M., one

- year

- old A.A.M., and E.M.
, and filed a petition alleging they were dependent as to Mother due to abuse

1 We view the facts in the light most favorable to upholding the juvenile court’s order terminating parental rights. Marianne N. v. Dep’t of Child Safety
, 240 Ariz. 470, 471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’ t of Econ. Sec. v. Matthew L. , 223 Ariz. 547, 549, ¶ 7 (App. 2010)).

2 At the time, employees of Child Protective Services (CPS) , formerly a division of the Arizona Depart ment of Economic Security (ADES) , acted on behalf of the state. Effective May 29, 2014, however, the Arizona legislature repealed the statutory authorization for CPS and for ADES’s administration of child welfare and placement services under title 8
, and transferred the p owers, duties, and purposes previously assigned to those entities to the newly established DCS. See Melissa W. v. Dep’t of Child Safety
, 238 Ariz. 115, 116 n.1, ¶ 2 (App. 2015) (citing 2014 Ariz. Sess. Laws , ch. 1, §§ 6, 20, 5 4 (2nd Spec. Sess.)) . For s implicity, references to DCS in this decision encompass both ADES and the former CPS.KAYOMA S. v. DCS, et al. Decision of the Court

3 and neglect. 3 Mother denied the allegations in the petition, but , following a hearing, the juvenil e court found all three children dependent and set a case plan of family reunification concurrent with severance and adoption. The court ordered Mother be provided parent aide services, counseling, and supervised visitation.

¶4 In July 2014, the Foster Car e Review Board (FCRB) determined that Mother had completed parenting classes and her other services, but expressed concern with the unexplained cause of E.M.’s non

accidental injuries. DCS then moved to return A.M. and A.A.M. to Mother ’s physical custody, and the juvenile court entered an order to that effect. Mother , however, failed to remain in communication with DCS, and the court ordered A.M and A.A.M. be returned to DCS custody.

¶5 In January 2015, the FCRB recommended the case plan be changed to sev erance and adoption in response to Mother’s lack of communication with DCS and inability to secure adequate housing, as well

as a report from E.M.’s foster parents that he returned from an overnight stay with Mother and Father with bruising

. Mother gave b irth to G.M. soon thereafter, and DCS filed a petition alleging G.M. was dependent as to Mother on the grounds of abuse or neglect. Specifically, DCS alleged Mother failed to protect E.M. from abuse and neglected to provide a stable home environment. In February 2015, the juvenile court placed G.M. in DCS custody pending the dependency hearing. The court eventually ordered G.M. dependent as to Mother but retained the case plan of family reunification concurrent with severance and adoption

. ¶6 In August 2015, DCS again moved to have A.M. and A.A.M. placed in Mother’s physical custody
, believ ing Mother had found a more stable living environment with her aunt . T he juvenile court granted DCS’s request. However, Mother had a dispute with her aunt regarding household finances and maintenance and moved out , leaving the girls behind

. The court then order ed A.M. and A.A.M. be placed in kinship foster care with the ir maternal grandmother.

¶7 In December 2015, DCS moved to terminate Mother’s parental rights to the Children , alleging severance was warranted because: (1) Mother fail ed to protect E.M. from abuse , and (2) Mother failed to

3 DCS also alleged the Children were dependent as to F ather. His parental rights were eventually terminated. He did not contest the termination of his parental rights and is not a party to this appeal.KAYOMA S. v. DCS, et al. Decision of the Court

4 remedy the circumstances causing the Children to be in an out

- of

- home placement for a cumulative period of fifteen months or longer. 4 See Ariz. Rev. Stat. (A.R.S.) § 8

- 533(B)(2), 5 (8)(c). Mother contested the allegations in the petition, and the juvenile court set a severance hearing for August 2016.

¶8 At the hearing, Mother’s first DCS case manager testified she had worked with Moth er for about two years, ending in February 2016. Although Mother completed many of the services provided by DCS, the case manager indicated that Mother’s inconsistent communication with DCS and un stable housing exhibited an unwillingness and inability to parent the Children and had caused A.M. and A.A.M. to return to DCS custody twice

. Mother’s second DCS case manager testified he was only able to contact Mother once during a six

- month period. Mother testified she refused to help her aunt with the househ old finances while she was living there even though DCS had informed her that her daughters would not be removed if she did so.

¶9 Because the Children are defined as Indian children under the Indian Child Welfare Act (ICWA)
, see 25 U.S.C. § 1903(4), a Navajo social

wo rker te stified as an expert under ICWA

. She testifi ed that, despite DCS making “active efforts to provide remedial services and rehabilitative programs, . . . continued custody of the [C]hildren by Mother would likely result in serious emotional or physical damage.” The social worker stated that Mother “did the services, but [she] did not make the behavioral changes,” and Mother was not creating permanency and stability for the Children, instead allowing “them to linger on in [DCS] cust ody.”

¶10 The juvenile court took the matter under advisement. In considering the Navajo social worker’s testimony, the court found DCS made active efforts to provide remedial services and rehabilitative programs for Mother, but those efforts were unsuccessful. The court further found Mother failed to protect E.M. from abuse, see A.R.S. § 8

- 533(B)(2), and failed to remedy the circum stances causing the Children to

4 Although t he termination motion did not specifically reference G.M. under the fifteen

- month out

- of

- home ground for severance
, by the time the severance hearing occurred, G.M. had been in an out

- of

- home placement for eighteen months . T he juvenile court included G.M. in its order terminating Mother’s parental rights on this ground , and Mother does not suggest it acted inappropriately in doing so

. See infra ¶ 10.

5 Absent material changes from the relevant date, we cite a statute’s current version.KAYOMA S. v. DCS, et al. Decision of the Court

5 be in an out

- of

- home placement for a cumulative period of fifteen months or longer without proving she would be capable of exercising effective parental care in the near future, see A.R.S. § 8

- 533(B)(8)(c).

¶11 In particular, the juvenile court explained that Mother did not complete her parent aide referrals or family reun ification team service, nor demonstrate the ability to maintain stable housing after failing to avail herself of both housing and family assistance. The court concluded severance would be in the Children’s best interests because they had been in foster ca re for the m ajority of their young lives, and a family placement

wa s willing to permanently adopt all four Children. The court therefore terminated Mother’s parental rights.

¶12 Mother timely appealed the juvenile court’s order. We have jurisdiction pursu ant to A.R.S. §§ 8

- 235(A), 12

- 120.21(A)(1),

- 2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

¶13 “The right to custody of one’s child [ren] is fundamental, but it is not absolute.” Jeffrey P. v. Dep’t of Child Safety , 239 Ar iz. 212, 213, ¶ 5 (App. 2016) (citing Michael J. v. Ariz. Dep’t of Econ. Sec. , 196 Ariz. 246, 24 8
, ¶ ¶ 11

- 12 (2000)). The juvenile court may terminate parental rights if it finds, by clear and convincing evidence, that DCS “made a diligent effort to provide appropriate reunification services,” and:

[t]he child has been in an out

- of

- home placement for a cumulative total peri od of fifteen months or longer[,] . . . 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 effecti ve parental care and control in the near future.

A.R.S. § 8

- 533(B)(8)(c); see also A.R.S. § 8

- 537(B); Ariz. R.P. Juv. Ct. 66(C); Michael J. , 196 Ariz. at 249, ¶ 12

. 6

6 DCS must also prove that termination is in a child’s best interests by a preponderance of the evidence. See Ariz. R.P. Juv. Ct. 66(C); Michael J. , 196 Ariz. at 249, ¶ 12. Mother does not contest the juvenile court’s f inding to this effect. Nevertheless, because the court reasonably found the Children would likely be harmed if left in Mother’s custody, see infra ¶ 18
,KAYOMA S. v. DCS, et al. Decision of the Court

6 ¶14 We review a termination order for an abuse of discretion. Jeffrey P. , 239 Ariz. at 213, ¶ 5 (citing Mary Lou C. v. Ariz. Dep’t of Econ. Sec.
, 207 Ariz. 43, 47, ¶ 8 (App. 2004)). The juvenile court, “as the trier of fact in a termination proceeding, ‘ is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts. ’ ” Jordan C. v. Ariz. Dep’t of Econ. Sec. , 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Oscar O. , 209 Ariz. at 334, ¶ 4 ) . This Court, therefore, does not reweigh the evidence on appeal and will affirm a termination o rder so long as it is supported by reasonable evidence. Id. (citing Lashonda M. v. Ariz. Dep’t of Econ. Sec. , 210 Ariz. 77, 81
, ¶ 13 (App. 2005), and Jennifer B. v. Ariz. Dep’t of Econ. Sec. , 189 Ariz. 553, 555 (App. 1997)).

¶15 Mother first contends the juve nile court erred in finding she had failed to remedy the circumstances that caused the Children to be in an
out

- of

- home placement because she completed many of her reunification services and was actively searching for stable housing

. The record reflects that a lthough Mother completed many of her reunification services, she failed to complete her parent aide referrals and the family reunification team service. Furthermore, the record portrays Mother’s sporadic attempts
, over a three

- year period, to locate and maintain st able housing. W hen Mother was specifically told she could retain custody of her Children if she paid $35 per week in rent to her aunt and help ed with housework, Mother refused, electing instead to leave the residence and abandon A.M. and A .A.M

. Moreover, Mother never explained her failure to keep in contact with DCS, a circumstance that caused her to lose physical custody of A.M. and A.A.M. after they were returned to her care the first time. Reasonable evidence supports the finding that Mother failed to remedy the circumstances that caused the Children to be in an out

- of

- home placement
, and we find no abuse of discretion.

¶16 Mother next contends DCS failed to prove a substantial likelihood that Mother would be incapable of exercising proper and effective parental care and control in the near future. However, Mother’s

and they were all adoptable, we believe DCS sufficiently proved severance was in the Children’s best i nterests. See Dominique M. v. Dep’t of Child Safety
, 240 Ariz. 96, 98, ¶ 8 (App. 2016) (noting severance is in a child’s best interests if the “ severance affirmatively benefits the children (such as showing they are adoptable or more stable in an existing placement), or eliminates a detriment to the children if the parent

- ch ild relationship is not severed”) (citing M aricopa Cty. Juv. Action No. JS

- 500274 , 167 Ariz. 1, 6

- 7 (1990) , and Ariz. Dep’t of Econ. Sec. v. Oscar O. , 209 Ariz. 332, 334, ¶ 6 (App. 2004) )

.KAYOMA S. v. DCS, et al. Decision of the Court

7 failure to maintain stable housing , despite receiving family assistance and information on how to apply for housing assistance, was the primary cause of her inability to exercis e proper and effective parental care

. At the time of her severance hearing, Mother testified she had been living with her cousin during the preceding week and indicated that living arrangement

w as only temporary. Mother further revealed she had applied f or Section 8 housing several months prior to the hea ring but admitted her chances of ob taining Section 8 housing were speculative. On the whole, th e record depicts a parent who failed to make necessary behavioral changes , despite having been provided “the time and opportunity to participate in programs designed to improve the parent’s ability to care for the [C]hild[ren].” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec. , 193 Ariz. 185, 192, ¶ 37 (App. 1999) (citing Maricopa Cty. Juv. Action No. JS

- 501904 , 180 Ariz. 348, 353 (App. 1994) ). And
t hrough its cross

- examination of Mother, DCS met its burden of proving she was unlikely to make the necessary behavioral changes in the near future.

¶17 Mother also argues DCS failed to p rove, beyond a reasonable doubt and t hrough the testimony of a qualified expert witness, that her continued custody of the Indian C hild ren would likely result in serious emotional or physical harm to the Children , as required by ICWA

. See 25 U.S.C. § 1912(f); Ariz. R.P. Juv. Ct. 66(C); see a lso Valerie M. v. Ariz. Dep’t of Econ. Sec. , 219 Ariz. 331, 334, ¶ 11 (2009). Because Mother effectively challenges the sufficiency of the evidence, we again review for an abuse of discretion, and will uphold the juvenile court’s findings and order if the y are supported by reasonable evidence. See supra ¶ 1 4

. ¶18 Here, DCS presented expert testimony from a social worker who was a member of the Children’s tribe and had been assigned to Mother’s case for over three years. The expert witness specifically testif ied that, based on her personal knowledge of Mother’s history and behavior
, Mother’s continued custody would result in serious emotional or physical harm to the Children. In particular, she testified that Mother’s participation in reunification services w as not eliciting the crucial behavioral changes that would ensure the Children were safe in her care , and that Mother’s inability to retain physical custody of A.M. and A.A.M., despite DCS’s attempts to facilitate reunification, exhibited a pattern of inst ability that would be detrimental to the Children’s well

- being. The social worker confirmed the Navajo tribe agreed with DCS’s case plan of severance and adoption. Based on t his expert testimony , the juvenile court could have found, beyond a reasonable doubt, that continued custody of the Children by Mother was likely to result in serious emotional or physical damage to them . The court complied with ICWA and we find no error

.KAYOMA S. v. DCS, et al. Decision of the Court

8 ¶19 Mother has not proved any irregul arity in the juvenile court’s order. Accordingly, we find the court did not abuse its discretion in terminating Mother’s parental rights to the Children under A.R.S. § 8

- 533(B)(8)(c). 7

CONCLUSION

¶20 The juvenile court’s order terminating Mother’s parental ri ghts to the Children is affirmed.

7 Because we affirm the juvenile court’s order terminating Mother’s parental rights under the fifteen

- month out

- of

- care ground, we need not address any other statutory ground for severance that the court considered. See Michael J. , 196 Ariz. at 2 49, ¶ 12.