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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                   JASON B.,
                                    Appellant,

                                        v.

              DEPARTMENT OF CHILD SAFETY, E.B., M.B.,
                           Appellees.

                             No. 1 CA-JV 16-0305
                               FILED 2-7-2017


          Appeal from the Superior Court in Maricopa County
                            No. JD27040
         The Honorable William R. Wingard, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee DCS
                          JASON B. v. DCS, et al.
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1           Jason B. ("Father") appeals the superior court's order
terminating his parental rights to his two children. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Father and Leslie B. ("Mother") are the biological parents of
E.B., born in March 2013, and M.B., born in March 2014. In September 2013,
when E.B. was five months old, the Department of Child Safety ("DCS")
took her into custody based on evidence that Father and Mother were
abusing substances and were not providing her with a safe and stable home
environment, and Father was engaging in criminal activity. The following
month, Father was arrested and charged with identity theft and forgery. In
February 2014, Father was sentenced to five years' incarceration after
pleading guilty to both charges. While Father was in custody, Mother gave
birth to M.B., and E.B. was returned to her care. Several months later,
Mother tested positive for methamphetamine, and DCS removed both
children.1

¶3             On a motion by DCS and after a contested hearing in June
2016, the superior court terminated Father's parental rights based on
Father's incarceration and the children's out-of-home placement for 15
months or longer, pursuant to Arizona Revised Statutes ("A.R.S.") sections
8-533(B)(4), (B)(8)(c) (2017), respectively.2 The court found that Father "has
not completed his substance abuse treatment, cannot provide a stable home
for his children and his criminal issues remain." Father timely appealed.
We have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 8-235(A) (2017), 12-2101(A)(1) (2017) and
Arizona Rule of Procedure for the Juvenile Court 103(A).



1      Mother's rights have been terminated and are not at issue here.

2     Absent material revision after the relevant date, we cite a statute's
current version.


                                      2
                           JASON B. v. DCS, et al.
                            Decision of the Court

                               DISCUSSION

¶4             The right to custody of one's children is fundamental, but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent's rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B) and
upon a finding by a preponderance of the evidence that termination is in
the best interests of the child. Michael J., 196 Ariz. at 249, ¶ 12. We review
the superior court's termination order for an abuse of discretion; we will
affirm the order unless its factual findings are clearly erroneous, "that is,
unless there is no reasonable evidence to support them." Audra T. v. Ariz.
Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998).

¶5            Under A.R.S. § 8-533(B)(8)(c), a parent's rights may be
terminated upon a finding that (1) the child has been in out-of-home
placement for 15 months or longer; (2) the agency has made diligent efforts
to provide appropriate reunification services; (3) the parent is unable to
remedy the circumstances that caused the placement; and (4) 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). In determining whether the parent has been able to remedy
the circumstances causing placement, we consider the circumstances
existing at the time of the severance rather than at the time of the initial
dependency petition. Maricopa County Juv. Action No. JS-8441, 175 Ariz. 463,
468 (App. 1993).

¶6             Father does not dispute that the children have been in
placement for longer than 15 months or that DCS made diligent efforts to
provide appropriate reunification services. Nor does Father dispute the
court's best-interest finding.

¶7             Reasonable evidence supports the superior court's findings
that Father is unable to remedy the circumstances that caused the
placement and that he will not be able to exercise proper and effective
parental care and control in the near future. At trial, Father testified that he
remained incarcerated and has substance abuse issues. A DCS case
manager testified that Father will not be able to maintain a normal parent-
child relationship with the children "because he won't be able to provide for
the kids' basic needs, mental, educational, physical, as well as establish and
maintain a bond," and neither parent has proved to be a "permanent,
consistent, stable caregiver." The case manager explained that when Father
asked for visits with his children, DCS consulted a psychologist to
determine whether visitation would be appropriate. The psychologist


                                       3
                          JASON B. v. DCS, et al.
                           Decision of the Court

recommended the children not visit Father while he is incarcerated, because
prison visits cause "stress and anxiety to the younger children," especially
if "there's already not a bond" between the children and the person they are
visiting.

¶8            Father argues he has shown he can care for his children
because he has participated in services while in prison, has a paying job in
prison, and has tried to maintain contact with his children while
incarcerated. He testified he has completed as many classes as he could in
prison to better himself. He testified he earns approximately $600 each
month–enough money to provide housing for the children. He testified he
has not sent any of his earnings for the support of the children because he
has not been approved to send them money. Despite Father's reported
desire to support and parent his children, sufficient evidence supports the
court's finding that he is currently unable to do so, and will not be able to
in the near future.

¶9             Because the superior court did not abuse its discretion in
severing Father's parental rights based on 15 months' out-of-home
placement, we need not consider whether the superior court's findings
justified severance based on the length of Father's incarceration, pursuant
to A.R.S. § 8-533(B)(4). See Michael J., 196 Ariz. at 251, ¶ 27.

                              CONCLUSION

¶10          For the foregoing reasons, we affirm the superior court's order
terminating Father's parental rights.




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




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