In Re Term of Parental Rights as to I.N. and N.N.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0066
FILED 04-15-2025

Appeal from the Superior Court in Maricopa County
No. JD15529
JS21899
The Honorable Suzanne Scheiner Marwil, Judge

AFFIRMED IN PART; DISMISSED IN PART; VACATED AND
REMANDED IN PART

COUNSEL

Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant Darius N.

Arizona Attorney General’s Office, Phoenix
By Amber Pershon
Counsel for Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO I.N. and N.N.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Chief Judge David B. Gass
joined.

F U R U Y A, Judge:

¶1 Darius N. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his children, I.N. and N.N. For the
following reasons, we dismiss in part, affirm in part, and vacate and
remand in part.

FACTS AND PROCEDURAL HISTORY

¶2 During Father’s years-long relationship with Ashley B.
(“Mother”) , they were never married. However, the couple had two
1

children together during that time. Mother’s three minor children from
previous relationships also lived with them. Father is the proven biological
father of the couple’s older child, I.N., and although not established, he does
not dispute his paternity to the youngest child, N.N. Father has an extensive
history of substance abuse and child neglect that culminated in these
proceedings.

¶3 In September 2020, before N.N.’s birth, the Department of
Child Services (“DCS”) placed I.N. in a dependency for the first time after
Father and Mother were arrested for possession of methamphetamine,
possession of an assault rifle, and child endangerment. The court dismissed
this first dependency after the parents engaged in services and
demonstrated sobriety.

¶4 The following year, I.N.’s guardian ad litem filed a
dependency petition citing concerns of drug abuse and domestic violence.
The resulting investigation by DCS prompted Mother to disenroll her older
children from school to avoid DCS questioning, limiting the investigation’s
effectiveness and leading to the petition’s dismissal. In September 2022,
Father was shot during a drug deal while I.N. was present and asleep beside

1 Though she is not a party to this appeal, Mother’s parental rights
were also terminated.

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Decision of the Court

Father’s handgun. The police discovered fentanyl pills all over the floor and
other drug paraphernalia throughout the home. But once again, the parents
evaded DCS and law enforcement’s efforts to locate them.

¶5 Weeks after the shooting, Mother gave birth to N.N. at home.
Information that DCS gathered through its later investigations suggested
N.N. was born substance-exposed and may have suffered withdrawals,
though there is no record N.N. was provided with medical care. Mother’s
older children reported acting as I.N. and N.N.’s primary caregivers while
the parents used and dealt drugs. They witnessed domestic violence. Drugs
and drug paraphernalia surrounded them in the home and I.N. was burned
by the parents’ drug equipment multiple times.

¶6 Soon after N.N.’s birth, an extended family member informed
police of the family’s location. Mother and Father were arrested on
outstanding warrants, and DCS took the children into custody. In a DCS
interview, the parents denied drug use but refused drug testing. After the
investigation, DCS placed I.N. and N.N. with a foster family who later
expressed a desire to adopt them. DCS also began dependency proceedings
as to I.N. and N.N.

¶7 Neither parent contested the dependency, resulting in the
court determining that both children were dependent. At that time, the
court ordered Father to receive paternity testing and noted that Father had
signed an acknowledgment of paternity, which Mother did not contest. The
court then set a reunification plan. As part of its reunification plan, DCS
referred Father for substance abuse testing and treatment, but his referrals
lapsed after he did not participate. Although Father did not test with DCS,
he began methadone treatment in December 2022 through Community
Medical Services (“CMS”) to comply with his probation requirements. Five
months into the dependency, he completed three drug tests with
AverHealth, all of which returned positive for fentanyl. A few months later,
the parents were evicted from their apartment. Thereafter, Father failed to
verify his place of residency with DCS, though he claimed he was staying
at a sober living facility.

¶8 The court held a contested termination trial over two days in
February and March 2024. Father testified he completed treatment on his
own, but did not submit any evidence of his sobriety or stable living
conditions. He claims to have participated in monthly counseling as part of
his methadone treatment at CMS but provided no records confirming this.

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Decision of the Court

¶9 Father testified that DCS failed to provide him with a
paternity test for N.N. because it did not send his information to
AverHealth. He stated that he visited the testing center three times, but each
time, AverHealth claimed he was not in its system. He contacted his case
manager about the issue but said it was never resolved. However, his case
manager testified that after Father notified her of the problem, she
confirmed that his information was in AverHealth’s system. As of the final
date of trial, Father’s paternity of N.N. had not been established by testing,
though he had signed an acknowledgment of paternity.

¶10 After taking the matter under advisement, the court
ultimately found Father “remain[ed] in the midst of [his] addictions and
[has] not demonstrated a prolonged period of sobriety.” The court found
the likely adoptive placements adequate to meet the special needs of each
child. It further found DCS had proved by a preponderance of the evidence
that the children’s best interests necessitated terminating their biological
parents’ rights.

¶11 The court terminated Father’s parental rights to I.N. on the
grounds of nine and fifteen months’ out-of-home placement, and as to N.N.,
on the grounds of chronic substance abuse and failure to initiate paternity
proceedings. Father timely appealed, and we have jurisdiction under
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 8-235(A), 12-120.21(A), -2101(A), and Arizona Rule of
Procedure for the Juvenile Court 601(a).

DISCUSSION

¶12 Father argues the juvenile court erred in (1) issuing N.N.’s
dependency order without establishing Father’s paternity, (2) finding that
Father had been unable to remedy the circumstances that caused out-of-
home placement, and (3) finding that termination was in the best interests
of the children.

¶13 A parent’s right to care, custody, and control of his child is
fundamental but not absolute. Brionna J. v. Dep’t of Child Safety, 255 Ariz.
471, 476 ¶ 18 (2023). A court may terminate parental rights if it finds, by
clear and convincing evidence, the existence of at least one of the statutory
grounds under A.R.S. § 8-533(B) and, by a preponderance of the evidence,
that termination is in the child’s best interests. Id. at 477 ¶ 20. We view the
facts in the light most favorable to upholding the court’s findings. Id. at 479
¶ 32.

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I. We Lack Jurisdiction to Address Father’s Appeal of N.N.’s
Dependency Order.

¶14 “Generally, a party must file a notice of appeal within thirty
days of the entry of an appealable order pursuant to Arizona Rule of Civil
Appellate Procedure (“ARCAP”) 9.” Dowling v. Stapley, 221 Ariz. 251, 264 ¶
39 (App. 2009). “[A] dependency disposition order is a final, separately
appealable order.” Lindsey M. v. Arizona Dep’t of Econ. Sec., 212 Ariz. 43, 46
¶ 12 (App. 2006).

¶15 Here, the dependency order in question was entered on
January 23, 2023. But Father did not contest the dependency petition’s
allegations and did not timely appeal the resulting dependency order.
Therefore, we lack jurisdiction to address his arguments regarding the
dependency order and dismiss Father’s untimely appeal thereof
accordingly.

II. DCS Failed to Establish Father’s Paternity or to Provide Father
with a Notice Compliant with A.R.S. § 8-106(G).

¶16 “The parent’s interest in the parent-child relationship may not
be changed without due process and compliance with the statutes
involved.” Matter of Appeal in Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 355 (App. 1994) (cleaned up). Due process requires “notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and to afford them an opportunity to
present their objections.” Id.

¶17 The court found termination was proper as between N.N. and
Father on grounds of prolonged and chronic substance abuse per A.R.S. §
8-533(B)(3) and Father’s failure to file a paternity action per A.R.S. § 8-
533(B)(5). But neither ground is availing on this record.

¶18 First, to establish termination under the prolonged and
chronic substance abuse grounds, the court must determine, by clear and
convincing evidence, “[t]hat the parent is unable to discharge parental
responsibility because of . . . 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) (emphasis added). For purposes of this statute,
a “parent” is defined as “the natural or adoptive mother or father of a
child.” A.R.S. § 8-531(10).

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Decision of the Court

¶19 Here, Father’s paternity was not established at the time of
trial. Thus, the court could not find that Father was a “parent,” whose rights
to N.N. could be terminated under A.R.S. § 8-533(B)(3) and its findings to
that effect were in error.

¶20 Second, to establish termination on grounds of failure to
timely file a paternity action, the court must find that “the potential father
failed to file a paternity action within thirty days of completion of service
of notice as prescribed in § 8-106, subsection G.” A.R.S. § 8-533(B)(5). The
statutory notice provided in termination proceedings affords potential
fathers the opportunity to assert their right to parent. Richard M. v. Patrick
M., 248 Ariz. 492, 497 ¶ 19 (App. 2020). Potential fathers identified by the
mother must be served notice of termination proceedings and specifically
advised of the steps they must take to avoid forfeiture of any potential
interest in their right to parent the child. Id.; A.R.S. §§ 8-533(B)(5), -106(G).

¶21 Here, the court found that Father had been served sufficient
notice to terminate his parental rights under A.R.S. § 8-533(B)(5). However,
notwithstanding this finding, DCS concedes on appeal that, at the time of
the termination hearing, it had failed to serve Father with the required
notice. Father had the right to be properly served with a notice of the
termination proceedings, in a form required by statute. A.R.S. § 8-106(G),
(I); Richard M., 248 Ariz. at 498 ¶ 19.

¶22 Because DCS concedes that Father was not served a compliant
notice as required by the statute, we vacate the termination order regarding
N.N. and remand the case to the court for further proceedings as to N.N.

III. Termination of Father’s Parental Rights to I.N. Was Not Clearly
Erroneous.

¶23 The court may terminate the parent-child relationship if the
moving party proves at least one of the statutory grounds set forth in A.R.S.
§ 8-533(B) by clear and convincing evidence. Brionna J., 255 Ariz. at 474 ¶ 1;
A.R.S. § 8-537(B). We accept the court’s factual findings so long as
reasonable evidence and inferences support them, and we affirm the court’s
legal conclusions about the statutory grounds for termination unless they
are clearly erroneous. Brionna J., 255 Ariz. at 478–79 ¶¶ 30–31. We do not
reweigh the evidence. Maria G. v. Dep’t of Child Safety, 253 Ariz. 364, 366 ¶ 8
(App. 2022).

¶24 After fifteen-months’ time-in-care, DCS may prove to the
court that the parent is unable to remedy the circumstance leading to the
out-of-home placement and petition for termination of parental rights.

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Decision of the Court

A.R.S. § 8-533(B)(8)(c). Father argues the court erred by terminating his
parental rights because DCS failed to prove by clear and convincing
evidence his inability to remedy the circumstances that originally led to the
out-of-home placement. See id.

¶25 As the trier of fact, “the juvenile court is in the best position
to weigh evidence and assess witness credibility,” therefore, “we accept the
juvenile court’s findings of fact if reasonable evidence and inferences
support them.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3 ¶ 9 (2016). The
record establishes that, while Father participated in some treatment, his
actions limited both his access to services and DCS’ ability to evaluate his
progress.

¶26 The court noted that, despite persistent requests and court
orders, Father did not undergo drug testing for DCS during the 17 months
the dependency was open. Father claims he recovered from his addictions
via his participation in methadone treatment. However, of the three drug
tests he did submit to the court, all were positive for fentanyl, two were
positive for cannabinoids, and only one was positive for methadone.
Additionally, Father testified that he used fentanyl for 12 out of the 17
months of the dependency and relapsed three months before trial.

¶27 We conclude that sufficient evidence supports the court’s
determination that Father failed to remedy the circumstances that led to
I.N.’s out-of-home placement. Because we affirm on the statutory ground
of fifteen-months’ time-in-care, we need not consider Father’s argument
regarding the nine-months’ time-in-care ground. See Ariz. R.P. Juv. Ct.
353(h); Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577–78 ¶ 5 (App.
2017).

IV. The Court Did Not Err in Finding Termination is in I.N.’s Best
Interests.

¶28 When considering the child’s best interests, the court must
consider the totality of the circumstances, emphasizing the child’s stability
and security. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150–51 ¶¶ 12 13
(2018). The court must find that the child would benefit from terminating
the parent’s rights or would be harmed by continuing the parent-child
relationship. Id. at 150 ¶ 13. We accept a court’s best-interests findings “if
reasonable evidence and inferences support them.” Brionna J., 255 Ariz. at
478 ¶ 30.

¶29 The best-interests requirement may be met if the petitioner
proves that the child is adoptable. Mary Lou C. v. Arizona Dep’t of Econ. Sec.,

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Decision of the Court

207 Ariz. 43, 50 ¶ 19 (App. 2004). For the term “adoptable” to have meaning,
it must be shown that the potential for adoption is likely, not just
theoretically possible. See Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370–
71 ¶ 22 (App. 2018). However, DCS does not need to show an adoption plan
to show the child is adoptable. Id. at 370 ¶ 19 (internal citations omitted).
The court may consider evidence that an existing placement meets the
child’s needs to determine that termination is in the child’s best interests.
Mary Lou C., 204 Ariz. at 50 ¶ 19.

¶30 Here, the court found that terminating Father’s parental
rights was in I.N.’s best interests because Father was “unwilling to interface
with the Department to show sustained sobriety and stability.”
Additionally, I.N. requires specialized care, which she was receiving in her
adoptive placement. She is on a waitlist for speech and occupational
therapy and is undergoing testing to determine her need for physical and
feeding therapy. Her foster parents also plan to enroll her in a
developmental school to address her developmental concerns. This record
shows the adoptive placement was meeting I.N.’s needs, including her
special needs, and they desired to adopt her.

¶31 The court considered Father’s testimony about his love for his
children and commitment to sobriety but ultimately determined that his
record of substance abuse and neglect weighed in favor of termination.
Here, the court considered the totality of the circumstances in its decision.
See Alma S., 245 Ariz. at 150–51 ¶¶ 12–13. Because reasonable evidence
supports the court’s best-interests finding for termination of Father’s
parental rights, we discern no error.

CONCLUSION

¶32 We dismiss Father’s appeal of N.N.’s dependency order for
lack of jurisdiction. We vacate N.N.’s termination order and remand to the
juvenile court for further proceedings consistent with this decision. We
affirm as to all remaining issues.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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