In Re Term of Parental Rights as to B.A.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0004
FILED 9-19-2023

Appeal from the Superior Court in Maricopa County
No. JD506498
The Honorable Cassie Bray Woo, Judge

AFFIRMED

COUNSEL

David W. Bell, Higley
Counsel for Appellant

The Huff Law Firm, PLLC, Tucson
By Laura J. Huff, Daniel R. Huff
Counsel for Appellee

Arizona Attorney General's Office, Tucson
Jennifer L. Thorson
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

M O R S E, Judge:

¶1 Charles A. ("Father") appeals the juvenile court's order
terminating his parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Kimberlee K. ("Mother") are the biological parents
of B.A. ("Child"), who was born substance-exposed to methamphetamine in
December 2016. The court later terminated Mother's parental rights, and
she is not a party to this appeal.

¶3 Soon after Child's birth, the Department of Child Safety
("DCS") took temporary physical custody of Child and filed a dependency
petition. At the time, Father was living out-of-state but eventually gained
custody of Child and the court dismissed the dependency.

¶4 In July 2020, Father was treated at a psychiatric facility where
he tested positive for methamphetamine, amphetamine, and ecstasy.
Meanwhile, paternal relatives took Child to California, and California child
protective services placed Child with a paternal aunt.

¶5 In August 2020, California police investigated Father after he
tried to retrieve Child from paternal aunt's home. Officers noted that Father
was fidgety, speaking rapidly, and "could not stop moving." Father
admitted to drinking a beer while driving to the parental aunt's home, and
officers found an open beer can and brass knuckles in Father's car. Officers
determined Father was under the influence of methamphetamine and
amphetamine and arrested him. After his release later that night, Father
returned to paternal aunt's home and absconded with Child but was
eventually arrested. Father pled guilty to burglary and possession of a
weapon and was incarcerated until April 2021.

¶6 Child had virtual visits with Father in prison. During those
visits, Child appeared uncomfortable and often asked to end visits early.
Meanwhile, California and Arizona courts determined that Arizona
retained jurisdiction over Child, so DCS took custody of Child and filed a
dependency petition, which the court eventually granted.

¶7 In her foster home, Child disclosed past physical abuse by
Father and displayed behaviors indicative of past trauma, including
disassociation. DCS referred Child for physical and behavioral therapy.
DCS also consulted its unit psychologist, who recommended no visits until

2
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

Child worked with her therapist and encouraged Father to write letters to
Child.

¶8 Father was released from prison and placed on four years'
probation. The terms of his probation included refraining from drugs,
submitting to substance-abuse testing, and completing a "1 year child abuse
program." Father's probation terms also prohibited him from having any
contact with Child except by court order. The California courts issued a
restraining order consistent with the probationary terms. Father's
probation was later transferred to Arizona.

¶9 During the dependency, DCS referred Father for
substance-abuse testing and treatment, a psychological evaluation, and
clinically supervised visits. Father's evaluating psychologist diagnosed
him with anxiety, depression, and amphetamine-use disorders and
recommended a psychiatric evaluation. The psychologist gave Father a fair
prognosis of his ability to parent Child in the future but noted that the
prognosis depended on his success in services.

¶10 Father failed to participate consistently with substance-abuse
testing, often missing months at a time. In April 2021, after Father was
released from prison, DCS established drug-testing services. Between late
April 2021 and November 2021, Father submitted 28 negative drug tests but
failed to call in for scheduled testing 20 times, went several weeks without
calling in, submitted two diluted tests, and tested positive for
methamphetamine on August 19, 2021. Father was closed out of testing
services after November 2021, "due to missing scheduled tests." In April
2022, DCS "re-referred" Father for drug testing. Between May 2022 and
September 2022, Father submitted two negative drug tests but again failed
to call in for scheduled testing 13 times, went several weeks without calling
in, and tested positive for methamphetamine on June 28, 2022.

¶11 Father also failed to participate consistently in
substance-abuse treatment. DCS referred Father for substance-abuse
treatment in June 2021, but his referral closed a few months later when
Father failed to engage in services. Father then told DCS he would
complete substance-abuse treatment through a different agency and
completed an initial intake in October 2021, but did not complete any
substance-abuse treatment. DCS later followed up with Father about
engaging services and he said that he "would re-engage" substance-abuse
treatment in January 2022. In February 2022, Father completed a substance-
abuse assessment, acknowledged relapsing in August 2021, and agreed to
complete 12 sessions of substance-abuse treatment, scheduled to begin in

3
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

March 2022. Shortly after, DCS moved to terminate Father's parental rights
under the nine- and fifteen-months out-of-home placement and
chronic-substance-abuse grounds.

¶12 After moving for termination, DCS reported Father was "not
attending his substance abuse groups" and that he was "reminded of group
attendance and potential closure if he did not engage." A couple of months
later, in June 2022, DCS again referred Father for substance-abuse
treatment. Father attended four scheduled substance-abuse group sessions,
but his referrals ultimately closed for lack of participation. Father
completed parenting classes but failed to attend individual counseling
regularly, and failed to complete a child-abuse program.

¶13 After a five-day trial, the court denied termination under the
nine-months out-of-home placement ground but granted it as to the other
grounds and found termination was in Child's best interests. Father timely
appealed, and we have jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶14 Parents have a fundamental right to the custody and control
of their children, but that right is not absolute. Michael J. v. Ariz. Dep't of
Econ. Sec., 196 Ariz. 246, 248–49, ¶¶ 11–12 (2000). To terminate a parent's
rights, a court must (1) find a statutory ground for termination under A.R.S.
§ 8-533 by clear and convincing evidence and (2) determine, by a
preponderance of the evidence, that termination is in the child's best
interests. Id. at 249, ¶ 12 (clear and convincing evidence); Kent K. v. Bobby
M., 210 Ariz. 279, 288, ¶ 42 (2005) (preponderance of the evidence); see
A.R.S. § 8-533(B) (requiring at least one statutory ground and a
best-interests finding). Because the court is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts, we accept the court's findings of fact if reasonable evidence
supports them and will affirm an order terminating parental rights unless
it is clearly erroneous. Brionna J. v. Dep't of Child Safety, --- Ariz. ---, ---, ¶ 30,
533 P.3d 202, 209, ¶ 30 (2023). A conclusion is not clearly erroneous unless
this Court determines "as a matter of law that no one could reasonably find
the [supporting] evidence" meets the applicable burden of proof. Id. at 210,
¶ 31 (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)).

¶15 Though the court terminated Father's parental rights on more
than one statutory ground under A.R.S. § 8-533(B), we will affirm the
termination if any one of the statutory grounds is proven and if the

4
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

termination is in the best interests of Child. Jesus M. v. Ariz. Dep't of Econ.
Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).

I. Chronic-Substance-Abuse Ground.

¶16 Father argues that (1) his positive drug tests and inconsistent
participation in drug testing should be "assessed in conjunction with" DCS's
"failure to allow him to have contact with [Child]," and (2) there was
"insufficient evidence presented for the court to determine that any
substance abuse concerns rose to such a level as to disqualify Father from
being able to provide minimally adequate parenting."

¶17 Parental rights may be terminated when a parent is unable to
discharge "parental responsibilities" due to "a history of chronic abuse of
dangerous drugs, controlled substances or alcohol and there are reasonable
grounds to believe that the condition will continue for a prolonged
indeterminate period." A.R.S. § 8-533(B)(3). "Chronic substance abuse is
long-lasting but not necessarily constant substance abuse." Jennifer S. v.
Dep't of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016).

¶18 Even though Father asserts that he completed some
substance-abuse counseling and parenting classes, the court heard and
received evidence that from June 2021 to June 2022, Father failed to engage
in any substance-abuse treatment beyond an initial intake and psychiatric
evaluation and tested positive for methamphetamine during the
dependency. The court also heard evidence of Father's history of drug use
before the dependency, his failure to participate in drug treatment, and his
positive and missed drug tests during the dependency. Specifically, Father
reported using methamphetamine for decades, failed to engage in
substance-abuse treatment until June 2022, was diagnosed with
amphetamine-use disorder, repeatedly failed to participate in drug testing,
submitted diluted drug tests, and tested positive for methamphetamine in
August 2021 and June 2022.

¶19 This evidence adequately supports the court's finding that his
drug abuse would continue for a prolonged indeterminate period and
render Father unable to discharge his parental responsibilities. See Jennifer
S., 240 Ariz. at 287–88, ¶¶ 17–18, 21, 25 (citing "decades-long history of
substance abuse," drug use "during the dependency," and parent's "refus[al]
to take most of her required drug tests" in affirming termination on the
chronic-substance-abuse ground); Raymond F. v. Dep't of Child Safety, 224
Ariz. 373, 379, ¶¶ 27, 29 (App. 2010) (noting parent's history of drug use,
positive tests, and "a two-month period in which he did not submit to

5
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

testing" was "evidence [the parent] has not overcome his dependence on
drugs" and that drug use was chronic and would continue).1

¶20 Father testified he stopped drug testing after June 2022 as he
was "tired" of DCS not allowing visitation with Child. But Father's lack of
visitation with Child does not absolve him of participating in drug testing
and substance-abuse treatment, as Child "should not be forced to wait for
[her] parent to grow up" and her "interest in permanency must prevail over
[her] parent's uncertain battle with drugs." Jennifer S., 240 Ariz. at 287, ¶ 17
(quoting Raymond F., 224 Ariz. at 378, ¶ 25).

¶21 Reasonable evidence supports the court's findings. See
Brionna J., --- Ariz. at ---, ¶ 30, 533 P.3d at 209, ¶ 30. Thus, the court did not
clearly err in finding that DCS established, by clear and convincing
evidence, termination of Father's parental rights was warranted under
A.R.S. § 8-533(B)(3). Id. at 210, ¶ 31. Because we affirm the court's
termination order based on Father's chronic substance-abuse, we need not
reach Father's arguments on the fifteen-months out-of-home placement
ground. Jesus M., 203 Ariz. at 280, ¶ 3.

1 See also Nicole W. v. Dep't of Child Safety, 1 CA-JV 20-0340, 2021 WL
3732259, at *3, ¶ 21 (Ariz. App. Aug. 24, 2021) (mem. decision) (including
"diluted drug tests, missed drug testing, and non-attendance of child family
team meetings" as evidence rebutting the mother's claims of rehabilitation);
Jennifer W. v. Dep't of Child Safety, 1 CA-JV 19-0261, 2020 WL 1313615, at *3,
¶ 13 (Ariz. App. Mar. 19, 2020) (mem. decision) (noting that many missed
tests and many positive tests "well supported" the court's conclusion that
drug use would continue); Jennifer W. v. Dep't of Child Safety, 1 CA-JV 18-
0302, 2019 WL 990679, at *3, ¶ 15 (Ariz. App. Feb. 28, 2019) (mem. decision)
("There was sufficient evidence for the court to reasonably conclude that
Mother's history of drug use coupled with her failure to submit to any
urinalysis or hair follicle testing indicates chronic substance abuse."); Paula
J. v. Dep't of Child Safety, 2 CA-JV 2017-0111, 2018 WL 679383, at *5, ¶ 20
(Ariz. App. Feb. 1, 2018) (mem. decision) (noting the "negative inferences
the court was permitted to draw" from the period of missed drug tests);
Megan M. v. Matthew M., 1 CA-JV 18-0105, 2018 WL 4208992, at *2, ¶ 10
(Ariz. App. Sept. 4, 2018) (mem. decision) ("Mother's argument that she
tested negative at times after completing treatment overlooks that she also
regularly missed testing or submitted diluted tests, creating a reasonable
inference that she had not resolved her substance abuse issues.").

6
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

II. Best Interests.

¶22 Father argues the court failed to consider all the
circumstances, particularly the lack of visitation with Child.

¶23 Once the court finds a parent unfit under at least one statutory
ground for termination, "the interests of the parent and child diverge," and
the court proceeds to balance the unfit parent's "interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life." Kent K., 210 Ariz. at
286, ¶ 35. "[A] determination of the child's best interest must include a
finding as to how the child would benefit from a severance or be harmed
by the continuation of the relationship." Maricopa Cnty. Juv. Action No.
JS-500274, 167 Ariz. 1, 5 (1990). Courts "must consider the totality of the
circumstances existing at the time of the severance determination, including
the child's adoptability and the parent's rehabilitation." Alma S. v. Dep't of
Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).

¶24 The court may find a child would benefit from termination if
there is an adoption plan or if the child is adoptable, id. at 150–51, ¶¶ 13–
14, or if the child "would benefit psychologically from the stability an
adoption would provide," Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994). Conversely, the court may find a child would
be harmed by the continuation of the parent-child relationship "where there
is clear and convincing evidence of parental unfitness which has not been
remedied notwithstanding the provision of services by [DCS] and which
detrimentally affects the child's well-being." Pima Cnty. Juv. Action No.
S-2460, 162 Ariz. 156, 158 (App. 1989).

¶25 Here, the court found termination would benefit Child
because her foster family wanted to adopt her and was meeting her needs,
including her behavioral-health needs. The court also found adoption
would provide Child a safe and stable home and that Child required a
permanent home, free of substance abuse, to assist her in overcoming her
past trauma. The court further concluded that maintaining Father's
parental rights would be detrimental to Child because he was not actively
working to remedy his substance-abuse issues. And Father did not
understand Child's trauma or needs. Reasonable evidence supports these
findings.

¶26 Father nonetheless argues the court should have considered
his lack of visits as part of the total circumstances. But the record does not
support Father's contention. The court based its order on "testimony,

7
 IN RE TERM OF PARENTAL RIGHTS AS TO B.A.
Decision of the Court

admitted evidence, and the entire court record," and recited six pages of
evidence about visitation. The court thus considered the very evidence
Father cites, but ultimately determined that termination was in Child's best
interests. We find no error in how the court weighed the evidence. See
Brionna J., --- Ariz. at ---, ¶ 30, 533 P.3d at 210, ¶ 31 (noting that juvenile
courts are in the best position to weigh the evidence).

CONCLUSION

¶27 We affirm.

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

8