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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               GUY N., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, B.N., Appellees.

                              No. 1 CA-JV 14-0294
                               FILED 6-16-2015


            Appeal from the Superior Court in Maricopa County
                              No. JD509751
                  The Honorable David J. Palmer, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Eric Knobloch
Counsel for Appellee Department of Child Safety
                           GUY N. v. DCS, B.N.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


C A T T A N I, Judge:

¶1            Guy N. (“Father”) appeals the superior court’s order
terminating his parental rights as to his daughter B.N. For reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In December 2010, B.N. was born substance-exposed to
methadone. In November 2011, the Arizona Department of Child Safety
(“DCS”) received a report of neglect regarding B.N. A DCS caseworker
smelled a strong odor of marijuana while inspecting the home where B.N.
and her mother were staying. Mother informed DCS that she and Father
had been involved in a domestic violence incident and that Father had
returned to Illinois. DCS filed an in-home dependency petition and set up
a safety plan, appointing relatives to provide supervision.

¶3             Approximately one month later, DCS received a report that
the safety plan was not being carried out, and after a caseworker found B.N.
in an unsafe situation in a hotel room, DCS filed a motion to change physical
custody. The superior court granted the motion, and subsequently found
B.N. dependent as to both Mother and Father.

¶4           DCS offered Father substance abuse treatment and testing,
parenting classes, supervised visitation, and a psychological evaluation to
help demonstrate he could parent B.N. Father failed to complete a required
substance abuse test while in Arizona, and although he reported he was
attending regular alcoholics anonymous meetings in Illinois, he failed to
provide any documentation to confirm his attendance.

¶5            In October 2012, Father admitted himself into a halfway
house and began participating in substance abuse testing and a treatment
program. Father was asked to leave the treatment program, however,
because of a physical altercation with another participant.




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                             GUY N. v. DCS, B.N.
                             Decision of the Court

¶6             In January 2013, Father was arrested on an outstanding
warrant for theft, and he was later sentenced to two years in prison. In
September 2013, DCS moved to sever Mother and Father’s parental rights
on grounds of chronic substance abuse and six, nine, and fifteen months’
time in care. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (B)(8)(a), (B)(8)(b),
(B)(8)(c).1 Father thereafter provided DCS with a certificate of completion
of a ten-week parenting class, and after his release from prison in December
2013, he began participating in drug treatment services. But Father missed
scheduled drug tests in February and March 2014, and he gave a diluted
sample in April 2014. Father thereafter stopped complying with required
substance abuse testing.

¶7            At a contested severance hearing in June 2014, a DCS
caseworker testified that Father was unable to discharge his parental
responsibilities due to a lengthy history of substance abuse and his failure
to complete substance abuse testing and treatment. Father admitted that
his substance abuse began at a young age and continued through
adulthood. Father also admitted having missed several drug tests even
though he knew a missed test would be treated the same as testing positive.

¶8            The court found that Father was unable to discharge his
parental responsibilities because of his lengthy history of substance abuse,
and also that B.N. had been in an out-of-home placement for fifteen months
or longer.2 The court further found that severance would be in B.N.’s best
interests because it would allow B.N. to be placed for adoption in a more
permanent and stable environment. Based on those findings, the court
terminated Father’s parental rights.

¶9            Father timely appealed. We have jurisdiction under A.R.S §
8-235(A).

                                DISCUSSION

¶10           Father argues the superior court erred by admitting improper
evidence, by finding grounds for termination despite DCS’s alleged failure
to make diligent efforts to reunify the family, and by finding severance to
be in B.N.’s best interests.


1     Absent material revisions after the relevant date, we cite a statute’s
current version.

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


                                        3
                             GUY N. v. DCS, B.N.
                             Decision of the Court

I.     Evidentiary Issues.

¶11           Father argues that the superior court improperly admitted
police reports and treatment records that contained hearsay evidence and
lacked foundation.

¶12           We review evidentiary rulings for an abuse of discretion.
Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 42, ¶ 11, 178 P.3d 511, 514
(App. 2008). We will not reverse unless there has been an abuse of
discretion resulting in prejudice. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210
Ariz. 77, 82–83, ¶ 19, 107 P.3d 923, 929–30 (App. 2005).

¶13           Prior to trial, Father filed a timely objection to DCS’s initial
disclosure statement, objecting to the admission of:

       Any and all caseworker reports, case notes, psychological/
       psychiatric/medical/mental evaluations/reports/records,
       doctor/hospital reports/records, police reports, criminal
       records/reports, court reporter transcripts, polygraph
       tests/results, therapists reports, home studies, parent aide
       reports and/or other documentation in reference to this case
       and/or any of the parties involved unless the State or other
       party presents the author of the report/documentation and
       removes all statements which originated from someone other
       than the report/documents author.

¶14          DCS subsequently filed a supplemental notice disclosing
anticipated witnesses. DCS advised the court that it had made the
witnesses available for interview, and had invited Father’s counsel to
identify any other individuals counsel intended to interview, but had
received no response. At the severance hearing, the superior court
admitted police reports and several substance abuse evaluation and
treatment reports over Father’s objection.

¶15          Father alleges error, relying on Rule 45(D) of the Arizona
Rules of Procedure for the Juvenile Court, which provides that “[a report]
shall be admitted into evidence if the report has been disclosed to the
parties pursuant to Rule 44(B)(1) and the author of the report is available
for cross-examination.” Father asserts that because DCS did not call
witnesses to testify regarding the police reports and his treatment and
evaluation reports, the reports should not have been admitted.

¶16          We need not address whether the police reports and
substance abuse treatment and evaluation reports were properly admitted,


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                             GUY N. v. DCS, B.N.
                             Decision of the Court

however, because any arguable error in admitting the reports was harmless.
Father testified that he began using alcohol at age 12, marijuana at age 13,
cocaine at age 16, acid in his junior year of high school, and heroin at age
19. Father admitted that after DCS referred him for substance abuse testing,
he did not comply with testing requirements. And Father did not dispute
that he provided a diluted sample on one required drug test and that he
missed other scheduled tests even though he knew a missed test would be
deemed to be a positive test. Moreover, Father’s only claim of sobriety
related to his time in prison and to the period of time after DCS sought to
terminate his parental rights. Therefore, there was overwhelming evidence
of Father’s continuing substance abuse independent of documentary
evidence, and any error relating to the documentary evidence was
harmless. See Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 73, ¶ 12, 345 P.3d
125, 128 (App. 2015) (noting that even if juvenile court erred in admitting
disputed exhibits, the error was harmless); see also State v. Davolt, 207 Ariz.
191, 205, ¶ 39, 84 P.3d 456, 470 (2004) (noting that error is harmless when
“the reviewing court can say beyond a reasonable doubt that the error did
not contribute to the verdict”).

II.    Severance Ruling.

¶17            In order to terminate a parent’s rights, the court must find at
least one statutory severance ground by clear and convincing evidence and
also must find by a preponderance of the evidence that termination is in the
child’s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 22, 110 P.3d 1013, 1018 (2005). We accept the court’s factual findings
unless no reasonable evidence supports those findings, and we will affirm
a termination of parental rights unless it is clearly erroneous. Christy C. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 1078 (App.
2007) (citation omitted).

       A.     Severance Grounds and Reunification Services.

¶18            To terminate parental rights on the ground of chronic
substance abuse, DCS must establish that the parent was “unable to
discharge parental responsibilities because of . . . a history of chronic abuse
of dangerous drugs, controlled substances or alcohol and there [were]
reasonable grounds to believe that the condition w[ould] continue for a
prolonged indeterminate period.” A.R.S. § 8-533(B)(3); Jennifer G. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005).
Substance abuse “need not be constant to be considered chronic.” Raymond
F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 16, 231 P.3d 377, 381 (App.
2010).


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                             GUY N. v. DCS, B.N.
                             Decision of the Court

¶19           Severance under § 8-533(B)(3) also requires that DCS make
reasonable efforts to reunify the family, unless such efforts would be futile.
See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 191–92, ¶¶ 31–34,
971 P.2d 1046, 1052–53 (App. 1999). DCS must undertake reunification
measures that have “a reasonable prospect of success.” Id. at 192, ¶ 34, 971
P.2d at 1053.

¶20            Here, the superior court did not abuse its discretion by
finding that Father was unable to discharge his parental responsibilities due
to a history of substance abuse and that there were reasonable grounds to
believe the condition would continue for a prolonged indeterminate period.
During the period between December 2011 and May 2012, Father only
completed two drug tests. Father did not make serious efforts to comply
with required services until several months after the court changed the case
plan to severance and adoption. As noted previously, Father admitted to
his extensive history of substance abuse beginning at a young age. Despite
warnings to Father that missed and diluted drug tests would be treated as
positive tests, Father missed several scheduled tests.

¶21           The court’s finding that DCS exercised due diligence in
offering Father services to help him address his substance abuse issues is
similarly supported by the record. DCS offered Father substance abuse
testing and treatment, parenting classes, supervised visitation, and a
psychological evaluation. Father was referred for numerous drug tests and
treatment during his stay in Arizona, as well as in Illinois. Although Father
asserted that he stopped drug testing because of transportation issues, he
never requested assistance in obtaining transportation. Thus, DCS
provided services as required, and the superior court did not abuse its
discretion by finding chronic substance abuse as a ground for severance.

¶22            Because we affirm the court’s finding that Father was unable
to discharge parental responsibilities due to a history of substance abuse,
we need not address the alternative ground of fifteen months’ time in care.
See, e.g., Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995
P.2d 682, 687 (2000).

       B.     Best Interests.

¶23            Father asserts that the superior court’s finding regarding
B.N.’s best interests was not supported by sufficient evidence. We disagree.

¶24            In addition to finding a statutory ground for severance, the
court must find by a preponderance of the evidence that termination is in
the best interests of the child. A.R.S. § 8-533(B); see also Kent K., 210 Ariz. at


                                        6
                            GUY N. v. DCS, B.N.
                            Decision of the Court

284, ¶ 22, 110 P.3d at 1018. To establish a basis for such a finding, DCS
“must present credible evidence demonstrating ‘how the child would
benefit from a severance or be harmed by the continuation of the
relationship.’” Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 587, ¶
8, 177 P.3d 327, 329 (App. 2008) (citation omitted).

¶25            B.N.’s foster parents reported that B.N. improved during her
stay with them and “beg[an] to develop a sense of humor . . . [and] finally
beg[an] to smile.” In its termination order, the superior court found that
termination was in the best interests of B.N., noting that she was in an
adoptive placement with her paternal aunt. Implicit in the court’s finding
that B.N. was adoptable was its conclusion that B.N. would benefit from the
greater permanency and stability that would be provided by an adoptive
home. We thus affirm the superior court’s ruling that terminating Father’s
rights was in B.N.’s best interests. See Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating that current
adoptive placement meeting the child’s needs supports best interests
finding); see also Lawrence R., 217 Ariz. at 587, ¶ 8, 177 P.3d at 329 (noting
that evidence that child is adoptable is sufficient to support a finding that
child would benefit from terminating the parent’s rights).

                              CONCLUSION

¶26          For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights as to B.N.




                                  :ama




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