In Re Term of Parental Rights as to K.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0077
FILED 03-18-2025

Appeal from the Superior Court in Maricopa County
No. JD39460
The Honorable Melody Harmon, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Angela K. Paton joined.

B A I L E Y, Judge:
 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

¶1 Jonathan C. (“Father”) appeals the termination of his parental
rights to K.C. (“Child”) on the statutory grounds of mental illness and
fifteen months’ out-of-home placement. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(3), (8)(c). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We review the facts in the light most favorable to upholding
the superior court’s order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010).

¶3 Father and Yolanda C. (“Mother”)1 are the biological parents
of Child, who was born in April 2021. Mother is also the biological mother
of K.H.C., who was born in January 2020.

¶4 Before Child was born, the Department of Child Safety
(“DCS”) became involved with Mother and Father due to domestic violence
between them and Mother’s substance abuse, mental health, and physical
health issues. In its dependency petition, DCS alleged that police had
responded to a series of domestic violence incidents in early 2020 between
Mother and Father, in which Mother reported that Father had pushed her
and scratched the side of her neck while she was holding K.H.C. and later,
strangled her in front of K.H.C. In June 2020, K.H.C. was adjudicated
dependent as to Mother and placed in a licensed foster home.

¶5 Based on these circumstances, DCS removed Child the day
after she was born and placed her in the same foster home as K.H.C. DCS
then filed its dependency petition against Mother and Father, alleging
dependency against Father based on his domestic violence with Mother and
his inability to provide a safe home environment due to his unmanaged
epileptic seizures. DCS alleged that Father experienced seizures ten to
fifteen times a month, with each seizure lasting five to ten minutes. Father
claimed these seizures were not an issue because he took seizure
medication, but he also admitted he sometimes forgot to take this
medication. At the dependency adjudication hearing, Father
acknowledged he might need a caregiver due to these seizures. The
superior court found Child dependent as to Mother and Father.

¶6 DCS provided Father with various rehabilitative and
reunification services, including a referral for a psychological evaluation;
parenting skills services, including parent aide services and Family

1 The superior court also terminated Mother’s rights. Mother is not a party
to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
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Connections; domestic violence counseling; supervised visitation; drug
testing; substance abuse treatment; referrals for individual counseling; and
case management services. Child remained in foster care throughout the
dependency.

¶7 During the dependency, Father continued to engage in
domestic violence with Mother. In an October 2021 incident, Father
punched Mother multiple times in her face and head, and she cut him with
a knife. In December 2021, Father was arrested for assaulting a resident of
his apartment complex who intervened in Father’s verbal altercation with
Mother. And between March and May 2022, police responded to at least
ten reports of domestic violence at Mother’s and Father’s residence.

¶8 Following Father’s psychological evaluation in October 2022,
the psychologist diagnosed Father with unspecified personality disorder
with mixed traits (antisocial, borderline, and narcissistic) and severe alcohol
disorder. During the evaluation, Father reported having a Seriously
Mentally Ill designation, which he had received in 2018. The psychologist
gave a “very guarded” prognosis of Father’s ability to safely parent in the
foreseeable future, due to Father’s “complex amalgamation of emotional
and character and substance-related conditions . . . made even more
worrisome due to [Father’s] reliance on dysfunctional coping strategies and
lack of consistent treatment involvement.” The psychologist made various
treatment recommendations, including abstinence from non-prescribed
mind- or mood-altering substances, clinical approval and monitoring of
any ongoing prescribed cannabis use, regular substance-abuse testing, and
intensive outpatient treatment and standard outpatient treatment for
substance abuse. Over the course of the dependency, Father failed to
adhere to his mental health and seizure medications by skipping dosages
and consuming marijuana alongside his prescribed medications. Because
marijuana interfered with the efficacy of his medications, his providers
repeatedly advised him to become sober.

¶9 Father consistently participated in parent-aide services,
Family Connections, and domestic violence counseling, but after he
completed the services, his service providers continued to have concerns
regarding his ability to care for Child. Among these concerns was Father’s
unaddressed mental health, which limited his ability to benefit from the
parenting services. The providers noted that when Father completed
Family Connections, he showed only a three-point improvement (on a scale
of 0-100) between his initial and final assessment scores. And after he
completed domestic violence counseling, Father was arrested in November
2023 for a domestic violence incident with Mother.

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
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¶10 Father did not participate consistently in drug testing,
substance abuse treatment, and individual therapy. Throughout the
dependency, Father completed less than half of his scheduled drug tests.
Throughout 2022 and 2023, all his tests were positive for marijuana, and
one test was also positive for methamphetamine. Father only began testing
consistently and returning negative test results in January 2024, the month
leading up to his termination trial. To address his substance abuse, Father
completed a medical marijuana education class, but he did not complete
intensive outpatient treatment or standard outpatient treatment as
recommended by the psychologist. Father also failed to participate
consistently in individual therapy, causing the service to nearly close on
multiple occasions due to his consecutive absences.

¶11 In August 2023, the superior court changed the case plan to
severance and adoption, and DCS moved to terminate Father’s parental
rights. After a three-day contested trial in February 2024, the superior court
terminated Father’s parental rights based on the statutory grounds of
mental illness and fifteen months’ out-of-home placement. See A.R.S. § 8-
533(B)(3), (8)(c). The court also found that termination would be in Child’s
best interests. See A.R.S. § 8-533(B). Father timely appealed.

¶12 In September 2024, DCS moved to stay the appeal, stating it
was unable to confirm that it had disclosed all relevant documents before
trial. This court granted that stay and continued it upon two subsequent
motions by DCS. While the appeal was stayed, DCS completed its
disclosure.

¶13 In December 2024, the superior court issued a ruling stating it
had conducted a review of the additionally disclosed documents and found
they were “not material to the Court’s previous decision and would not
have impacted the Court’s order to terminate parental rights.” This court
then lifted the stay of this appeal. Father did not file a separate notice of
appeal from the superior court’s December 2024 ruling.

¶14 To confirm whether Father sought to challenge the superior
court’s December 2024 ruling as part of his appeal, this court issued an
order allowing Father to file an optional supplemental brief. Father
submitted a supplemental brief confirming that he was not seeking review
of the December 2024 ruling.

¶15 We have jurisdiction under A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and 12-2101(A)(1).

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

DISCUSSION

¶16 To terminate parental rights, a court must find clear and
convincing evidence of at least one statutory ground in A.R.S. § 8-533(B)
and 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, 288, ¶ 41 (2005).
“The [superior] 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 make appropriate findings.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002) (citation omitted). We
will affirm a termination order unless clearly erroneous. Id.

¶17 To terminate parental rights for mental illness or mental
deficiency, the superior court must find that (1) the parent is unable to
discharge parental responsibilities because of mental illness or a mental
deficiency, and (2) reasonable grounds exist to believe the condition will
continue for a prolonged indeterminate period. A.R.S. § 8-533(B)(3). Under
the fifteen months’ out-of-home-placement ground, the court may
terminate a parent’s rights when (1) “[t]he child has been in an out-of-home
placement for a cumulative total period of fifteen months or longer
pursuant to court order or voluntary placement,” (2) “the parent has been
unable to remedy the circumstances that cause the child to be in an out-of-
home placement,” and (3) “there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental care and
control in the near future.” A.R.S. § 8-533(B)(8)(c).

¶18 On appeal, Father argues that clear and convincing evidence
did not support the statutory grounds found by the superior court for
termination. Father does not challenge the court’s best interests finding on
appeal, and accordingly, we accept the finding and do not address it
further. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 13
(2000).

¶19 Father argues that the superior court improperly relied on
evidence of Child’s apparent discomfort during supervised visits. But the
superior court did not rely on such evidence in finding either termination
ground. Rather, the court merely noted this evidence while describing the
services provided by DCS, and it did not mention Child’s discomfort in its
analysis of the termination grounds.

¶20 Father also argues that the superior court improperly
considered evidence of his substance abuse because the only substance he
regularly used was marijuana, he purportedly used it for the legitimate

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

medical purpose of managing his epilepsy and leg pain, and he apparently
decreased his usage by the time of trial. Father argues the superior court
should not have relied on his marijuana use in terminating his parental
rights unless it “renders him so impaired that he cannot safely parent.”
Gerald M. v. Dep’t of Child Safety, 2 CA-JV 15-0130, 2016 WL 2585919, at *7,
¶ 33 (Ariz. App. May 4, 2016) (mem. decision). Even accepting Father’s
premise that his substance use was limited to medical marijuana, such use
was contrary to his health providers’ advice. And although Father had
begun testing clean by the time of trial, the court found that Father’s
marijuana use was part of a pattern of noncompliance with his seizure and
mental-health medications. With his epilepsy and mental illnesses
continuing to go unmanaged, Father was unable to demonstrate the
necessary sobriety and stability to parent. Father does not challenge these
findings, which the record supports.

¶21 Father next argues that the superior court improperly
considered evidence of his domestic violence with Mother, given that
Father’s last documented domestic violence incident took place in
November 2023 and his relationship with Mother purportedly ended after
the incident. Father is essentially recounting favorable trial evidence and
asking this court to reweigh the evidence, something this court will not do.
See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Reasonable evidence supports the superior court’s finding that Father’s
domestic violence pattern continued throughout the dependency and
therefore supports both grounds for termination.

CONCLUSION

¶22 The superior court’s order terminating Father’s rights to
Child is affirmed.

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

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