In Re Term of Parental Rights as to J.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO J.L. AND J.L.

No. 1 CA-JV 22-0197
FILED 1-17-2023

Appeal from the Superior Court in Maricopa County
No. JD39232
The Honorable Suzanne Scheiner Marwil, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

The Huff Law Firm, PLLC, Tucson
By Laura J. Huff, Daniel R. Huff
Co-Counsel for Appellee Department of Child Safety

Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Co-Counsel for Appellee Department of Child Safety

Denise L. Carroll Attorney at Law, Scottsdale
By Denise L. Carroll
Counsel for Appellees J.L. and J.L.
 IN RE TERM OF PARENTAL RIGHTS AS TO J.L., et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann1 joined.

C R U Z, Judge:

¶1 Eric L. (“Father”) appeals the superior court’s order
terminating his parental rights to his children. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 As relevant here, Father and Sherry S. (“Mother3”) had two
children, J.L., born in 2007, and J.L., born in 2009. Father has abused alcohol
on and off since he was eight years old. In March 2020, the Department of
Child Safety (“DCS”) took custody of the children and petitioned for a
dependency because Mother was abusing alcohol and had allegedly abused
one of the children.

¶3 At that time, Father was attending an intensive outpatient
substance-abuse and mental-health treatment program and was unable to

1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-145, the Chief Justice of the Arizona Supreme
Court has designated Judge Swann as a judge pro tempore in the Court of
Appeals for the purpose of participating in the resolution of cases assigned
to this panel during his term in office and the period during which his
vacancy remains open and for the duration of Administrative Order 2022-
162.

2 “We review an order terminating a parent’s relationship with his or
her child . . . in the light most favorable to sustaining the superior court’s
ruling.” Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).

3 The superior court also terminated Mother’s parental rights to the
children. Mother is not a party to this appeal.

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Decision of the Court

provide for the children’s basic needs. The superior court eventually
adjudicated the children dependent after Father pled no contest to the
petition. Father relapsed after completing his treatment program and
abused alcohol for the next twenty-two months.

¶4 Meanwhile, DCS referred Father for substance-abuse testing
and treatment, two parent aides with visitation, and a family support
partner. He refused to participate in substance-abuse treatment and the
family support partner. He minimally participated in substance-abuse
testing and the parent-aide service. Furthermore, he showed up intoxicated
to a few visits and frequently missed them altogether.

¶5 In October 2020, while the dependency proceedings were
pending, Father was charged with aggravated driving under the influence
of alcohol.4 In summer 2021, Father pled guilty to his fifth conviction for
driving under the influence of alcohol and was sentenced to four months of
incarceration and three years of probation. Still, he continued abusing
alcohol through the end of 2021. Around this time, the children’s guardian
ad litem moved to terminate Father’s parental rights under the chronic
substance-abuse and nine-month and fifteen-month out-of-home
placement grounds. See A.R.S. § 8-533(B)(3), (8)(a), (c).

¶6 In 2022, as a mandatory term of probation, Father completed
an intensive outpatient substance-abuse program through his own
provider. He also regularly attended twelve-step meetings and obtained a
sponsor. In June, Father was incarcerated pursuant to his plea. After a trial,
the superior court terminated Father’s parental rights on the grounds
alleged. Father appealed. This court has jurisdiction pursuant to A.R.S.
§ 8-235(A).

DISCUSSION

¶7 Father argues that insufficient evidence supports the superior
court’s finding under the nine-month out-of-home placement ground that
he substantially neglected or willfully refused to remedy the circumstances
that caused the children to be in an out-of-home placement. See A.R.S. § 8-
533(B)(8)(a). A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248-49, ¶¶ 11-12 (2000). Termination of a parental relationship may be
warranted where the State proves at least one statutory ground under
A.R.S. § 8-533 by “clear and convincing evidence.” Id. at 249, ¶ 12. Clear

4 Father testified the charges were dismissed.

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 IN RE TERM OF PARENTAL RIGHTS AS TO J.L., et al.
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and convincing means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005)
(quoting Santosky v. Kramer, 455 U.S. 745, 577 (1982)) (internal quotation
marks omitted). The court must also find termination is in the child’s best
interests by a preponderance of the evidence. Kent K., 210 Ariz. at 285, ¶ 29.

¶8 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings” and will affirm a
termination order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This court does not reweigh
the evidence but “look[s] only to determine if there is evidence to sustain
the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004).

¶9 The juvenile court may terminate parental rights under A.R.S.
§ 8-533(B)(8)(a) if DCS “has made a diligent effort to provide appropriate
reunification services” and the 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 willfully refused to
remedy the circumstances that cause the child to be in an out-of-home
placement.” The focus of the nine-month ground is on “the level of the
parent’s effort to cure the circumstances rather than the parent’s success in
actually doing so.” Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329,
¶ 20 (App. 2007).

¶10 Here, the court found “Father has failed to test through PSI
and demonstrate a prolonged period of sobriety through consistent,
negative and non-missed drug testing.” Reasonable evidence supports this
finding.

¶11 Father has a twenty-nine-year history of substance abuse that
includes multiple arrests for driving under the influence and previous
failed attempts to remain sober. For twenty-two months of the
dependency, Father continued to abuse alcohol; minimally participated in
drug and alcohol testing, the parent-aide service, and visitation; and
refused all other services from DCS.

¶12 Nonetheless, Father contends he made sufficient efforts to
remedy the circumstances because he had achieved six-and-one-half
months of sobriety by the time of trial. The superior court considered his
recent efforts but found although “he has been sober for some months,” his
sobriety was “only [achieved] with the specter of incarceration and
treatment ordered by the criminal court hanging over him.” Father

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Decision of the Court

“continued to fixate on whether [alcohol testing] was court ordered or
whether DUI charges were filed rather than the fact that he continued to
abuse alcohol.” And although sober, Father was “still more than a year
away from being able to fulfill caregiving responsibilities if his sobriety
holds.”

¶13 Indeed, as a term of his probation, Father completed an
intensive outpatient treatment program two months before trial, and he
testified he had remained sober since December 30, 2021. Notwithstanding
his claim, he submitted only two alcohol and drug tests between January
and July 2022. Thus, his compliance with alcohol and drug testing in the
six months leading up to trial was less than 0.1%, which clearly amounts to
substantial neglect. See Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz.
571, 576 (App. 1994) (“[W]hen a [parent] . . . makes only sporadic, aborted
attempts to remedy” such circumstances, “a trial court is well within its
discretion in finding substantial neglect and terminating parental rights on
that basis . . . .”). As the case manager testified, such minimal compliance
leaves no way to gauge the progress of Father’s sobriety, and regardless, he
needed to demonstrate prolonged sobriety, employment, and housing
stability outside of a structured setting, which could take up to a year after
his incarceration. Id. (“Termination is not limited to those who have
completely neglected or willfully refused to remedy such circumstances.”).

¶14 Because reasonable evidence supports the court’s
determination that Father substantially neglected or willfully refused to
remedy the circumstances causing the children’s out-of-home placement,
we will not reweigh that determination on appeal. See Jesus M., 203 Ariz. at
282, ¶ 12 (“The resolution of such conflicts in the evidence is uniquely the
province of the juvenile court as the trier of fact; we do not re-weigh the
evidence on review.”).

¶15 The record contains sufficient evidence to support the court’s
termination order based on the nine-month out-of-home placement ground
DCS asserted, and the best interests findings. See Michael J., 196 Ariz. at 248-
49, ¶ 12 (termination of a parental relationship may be warranted where the
court finds at least one § 8-533 statutory ground for termination by clear
and convincing evidence); Kent K., 210 Ariz. at 284, ¶ 22 (the court must also
find termination is in the child’s best interests by a preponderance of the
evidence). Therefore, we need not address further Father’s challenges to
the termination under the chronic substance-abuse and fifteen-month out-
of-home placement grounds.

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Decision of the Court

CONCLUSION

¶16 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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