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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            BRADLEY T., Appellant,

                                         v.

                   SYDNEY W., KEVIN R., J.W., Appellees.

                              No. 1 CA-JV 18-0231
                                FILED 12-4-2018


            Appeal from the Superior Court in Maricopa County
                              No. JS518233
               The Honorable Shellie Smith, Commissioner

                                   AFFIRMED


                                    COUNSEL

The Law Office of Denise L. Carroll, Scottsdale
By Denise L. Carroll
Counsel for Appellant

Jaburg & Wilk, P.C., Phoenix
By Kathi M. Sandweiss, Carissa K. Seidl
Counsel for Appellees
                    BRADLEY T. v. SYDNEY W., et al.
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Chief Judge Samuel A. Thumma
joined.


B R O W N, Judge:

¶1            In this private termination proceeding, Bradley T. (“Father”)
appeals the juvenile court’s order terminating his parental rights to J.W.
(“the child”) on grounds of chronic substance abuse and abandonment.
Father challenges the sufficiency of the evidence on both grounds and
argues the court erred in finding that termination is in the child’s best
interests. For the following reasons, we affirm.

                             BACKGROUND

¶2             Jessica W. (“Mother”) and Father are the biological parents of
the child, born in 2014. The two never married, having known each other
for approximately one year before Mother gave birth. Less than a month
after the child’s birth, he and Mother left Father’s California home and
moved to Arizona, where Mother obtained an order of protection against
Father. Mother also filed a petition for legal decision-making and parenting
time in Arizona. Father began his own similar action in California but, in
exchange for Mother dismissing the order of protection, agreed to dismiss
it and withdraw his objection to the Arizona family court’s jurisdiction. As
part of that stipulation, in September 2014, the Arizona family court issued
temporary orders requiring Mother to supervise Father’s exercise of
parenting time and directing him to submit to drug testing. If Father
provided clean tests for six months, testing would cease unless ordered
otherwise.

¶3            Father failed to appear at the subsequent hearing on Mother’s
family court petition. Proceeding by default, the family court awarded sole
legal decision-making to Mother and further limited Father’s supervised
parenting time to “once a week if Father arranges the visits.” The court
noted Father not only failed to drug test as directed, the few tests he
completed were either positive for amphetamines or diluted. The court
again ordered Father to submit to drug testing, this time on a weekly basis.
Father admits he did not comply with this order.

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                     BRADLEY T. v. SYDNEY W., et al.
                         Decision of the Court

¶4            When Mother and the child first arrived in Arizona, they lived
with the child’s maternal grandmother, Sydney W. (“Grandmother”), and
her significant other, Kevin R. (collectively “Petitioners”). Grandmother
assisted Mother in providing primary care for the child, doing so for several
days a week even after Mother obtained a job and her own residence.
Father lived in Arizona for several months before moving to Wisconsin,
where he still resides. He has not had direct contact with the child since
2014.

¶5             Following Mother’s untimely death in September of 2017,
Petitioners obtained temporary guardianship over the child. This matter
arises out of their desire to make that status permanent by terminating
Father’s parental rights and adopting the child as their own. Following a
contested termination hearing, the juvenile court found that Petitioners met
their burden of proving abandonment and chronic substance abuse under
Arizona Revised Statutes section 8-533(B) and that termination was in the
best interests of the child. Father’s timely appeal followed.

                                DISCUSSION

¶6              The juvenile court may terminate parental rights if it first
finds at least one statutory ground listed in § 8-533(B) by clear and
convincing evidence and then finds, by a preponderance of the evidence,
that termination serves the child’s best interests. Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 149, ¶ 8 (2018). Our role is “not to weigh the evidence,”
even if the facts are hotly contested, because resolving conflicting evidence
is “uniquely the province of the juvenile court.” Id. at 151, ¶ 18 (citations
omitted). We therefore “view the evidence in the light most favorable to
affirming” the juvenile court’s decision and “will only reverse . . . if there is
no reasonable evidence to support its findings.” Raymond F. v. Ariz. Dep’t
of Econ. Sec., 224 Ariz. 373, 376, ¶ 13 (App. 2010) (citations omitted).

       A.     Chronic Substance Abuse

¶7             Father argues Petitioners failed to prove by clear and
convincing evidence that he would be unable to discharge his parental
responsibilities because of chronic and prolonged substance abuse under
§ 8-533(B)(3).

¶8            The juvenile court may terminate parental rights under
§ 8-533(B)(3) if the “(1) parent has a history of chronic abuse of controlled
substances or alcohol; (2) parent is unable to discharge parental
responsibilities because of his chronic abuse . . . and (3) there are reasonable


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                    BRADLEY T. v. SYDNEY W., et al.
                        Decision of the Court

grounds to believe that the condition will continue for a prolonged and
indeterminate period.” Id. at 377, ¶ 15.

¶9            Father first argues the juvenile court erred in relying on the
testimony of Dr. Ann Schroeckenstein. He argues her opinion testimony
was significantly flawed because Schroeckenstein “did not talk to Father in
the process of creating her report,” “did not ask Father or his counsel
whether there were any additional records that would be helpful to her
document review,” and “would not make any recommendations, diagnosis
or definitive statements in her report and testimony.” But Father neither
argues that the report was inadmissible under Arizona Rule of Juvenile
Procedure 45, nor that Schroeckenstein gave improper expert opinion
testimony under Arizona Rules of Evidence 702 and 703. Accordingly, to
the extent Father’s argument attacks the admissibility of the evidence the
juvenile court relied upon, we reject the argument. And because we do not
reweigh the evidence on appeal, we conclude that reasonable evidence—
including Schroeckenstein’s report and testimony—supports the juvenile
court’s decision.

¶10            The juvenile court first described how, in 2014, Father once
tested positive for amphetamines, twice gave diluted samples, and
eventually stopped providing drug tests altogether, even though the family
court order required him to engage in weekly drug testing as a condition of
exercising his limited parenting time. Father’s failure to comply with this
requirement is troubling given that, under the September 2014 temporary
orders, testing would cease if Father provided just six months of clean tests.
The court next reviewed Father’s legal history, noting each of his four
arrests (two of which led to convictions) since 2006 involved drugs or
alcohol. Particularly noteworthy was a conviction stemming from Father’s
guilty plea to a charge of possession of marijuana with intent to distribute
in 2014, nine months after the child’s birth. Significantly, Father told the
arresting officer that the eight pounds of marijuana were for his personal
use. Also significant was evidence that, within one year of the termination
hearing, Father consumed alcohol before an altercation with his parents
that led to his arrest for domestic disturbance. Only after reviewing all this
evidence did the court reference Schroeckenstein’s opinion, agreeing with
her that the evidence showed “patterns of concern related to Father’s
history of substance use.” The court cited much of this same evidence to
conclude Father’s substance abuse would make him unable to discharge his
parental responsibilities. Although Father discredits Schroeckenstein for
not speaking with him, asking him for additional records, or providing a
specific diagnosis, he does not point to other evidence that he offered (or
could have) to counter her conclusions.

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                     BRADLEY T. v. SYDNEY W., et al.
                         Decision of the Court

¶11            Father also argues that, because two negative drug tests from
June and September of 2017 show he is sober now, there are not reasonable
grounds to believe his condition will continue for a prolonged period.
However, “[i]t is not the number of times that Father has tested positive or
negative for drug abuse that is key, . . . rather, it is the fact that he has
consistently failed to abstain from drugs and alcohol.” Id. at 379, ¶ 29. To
make this finding, the court again looked to Father’s interactions with law
enforcement, each incident involving drugs or alcohol. It also relied on
Father’s admission that he had not participated in substance abuse
counseling or treatment as well as his own mother’s testimony that he
drank daily while residing in her home. Given the prominent role alcohol
played in his 2017 domestic disturbance arrest, Father’s lack of participation
in counseling or treatment is particularly compelling evidence, especially
considering Schroeckenstein’s testimony that the risk of relapse is greatest
in the first year. See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 288,
¶ 23 (App. 2016). In short, Father has demonstrated a consistent inability
to “establish the essential support system to maintain sobriety,” meaning
the child’s interest in permanency must prevail over Father’s “uncertain
battle.” Raymond F., 224 Ariz. at 378–79, ¶¶ 25, 29 (citation omitted).

¶12           Accordingly, reasonable evidence supports the juvenile
court’s findings outlined above and its decision to terminate Father’s
parental rights on the grounds of chronic substance abuse. Thus, we need
not address the abandonment ground. See id. at 376–77, ¶ 14.

       B.     Best Interests of the Child

¶13             Father also argues that Petitioners failed to prove by a
preponderance of the evidence that termination is in the child’s best
interests, citing such facts as his requests to see the child via FaceTime and
that, over the years, he sent some gifts and cards to the child.

¶14           For support, Father cites this court’s opinion in Alma S. v.
Department of Child Safety, 244 Ariz. 152 (App. 2017), contending he can
“properly parent his child, which demonstrates that severance will result in
a considerable detriment to the child.” That decision, however, was
recently vacated by our supreme court. Alma S., 245 Ariz. at 152, ¶ 23. As
the supreme court explained, courts must not “subordinate the interests of
the child to those of the parent once a determination of unfitness,” by
finding a substantive ground for termination, has been made. Id. at 151,
¶ 15. Instead, courts should “presume that the interests of the parent and
child diverge because the court has already found the existence of one of
the statutory grounds for termination,” and consider, under the totality of

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                     BRADLEY T. v. SYDNEY W., et al.
                         Decision of the Court

the circumstances, whether the child will either (1) benefit from termination
or (2) suffer harm from a failure to terminate. Id. at 150–51, ¶¶ 12–13
(citations omitted); see also Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 12
(2016) (“When a current placement meets the child’s needs and the child’s
prospective adoption is otherwise legally possible and likely, a juvenile
court may find that termination . . . is in the child’s best interests.”).

¶15            Addressing bests interests, the juvenile court noted that
Grandmother assisted Mother in providing primary care to the child before
Mother passed away and that he has resided with her ever since Mother’s
death. The court explained this placement is meeting the child’s needs,
relying in part on a social study that describes the child as “an articulate,
healthy, well-mannered child who is actively involved in his preschool and
with friends in the family’s neighborhood.” The court also found,
supported by Schroeckenstein’s report, that failure to sever would likely
harm the child because “reunification with Father, with whom the child has
virtually no memory of, would likely have a detrimental emotional effect
on the child, especially given the untimely loss of his mother.” Based on
Petitioners’ demonstrated history of providing for the child, and their
commitment to adopt him, the court found termination would benefit the
child. See Demetrius L., 239 Ariz. at 5, ¶¶ 16–17 (“A child may . . . reap
benefits from adoption, warranting a best-interests finding primarily on
that basis, even in a private severance action and when the child is not a
ward of the state.”). Because the record supports these findings, the court
did not err in finding that termination is in the child’s best interests.

                              CONCLUSION

¶16          The juvenile court’s order terminating Father’s parental rights
is affirmed.




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




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