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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              RYAN W., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, J.W., Appellees.

                              No. 1 CA-JV 16-0143
                                FILED 11-3-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD29174
                   The Honorable Connie Contes, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
                          RYAN W. v. DCS, J.W.
                          Decision of the Court


                      MEMORANDUM DECISION

Judge Thomas C. Kleinschmidt1 delivered the decision of the Court, in
which Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson
joined.


K L E I N S C H M I D T, Judge:

¶1            Ryan W. (“Father”) appeals the juvenile court’s order
terminating his parental rights to J.W. He challenges the sufficiency of the
evidence supporting termination. Because we conclude that the court’s
findings are supported by reasonable evidence, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Father is the biological parent of J.W., born in August 2014.2
Father has a history of substance abuse and was incarcerated for burglary,
retail theft, possession of drug paraphernalia, and possession/use of a
dangerous drug at the time of J.W.’s birth.

¶3             At the time of the child’s birth, both Mother and J.W. tested
positive for opiates. As a result, J.W. remained hospitalized for several
weeks and the Department of Child Safety (“DCS”) took temporary custody
of the child after discharge.

¶4           During Father’s incarceration, the juvenile court adjudicated
the child dependent and ordered DCS to attempt family reunification
concurrent with severance and adoption. Father was offered paternity
testing by DCS and encouraged to participate in all services available to him
during his incarceration.      While incarcerated, Father sent J.W.
approximately three cards and four letters but was unable to visit with the
child.



1      The Honorable Thomas C. Kleinschmidt, Retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      Samantha C. (“Mother”) had her parental rights terminated in the
same proceeding, however, because she has not joined in this appeal we do
not review her findings.


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                           RYAN W. v. DCS, J.W.
                           Decision of the Court

¶5             Father was released from prison in September 2015 and met
J.W. for the first time the day after his release. Father found employment
after his release and later obtained his own apartment. As part of his case
plan after release, Father was required to participate in random urinalysis
testing, substance-abuse treatment, parent-aide services, a psychological
evaluation, and individualized counseling.

¶6            In December 2015 Father allowed Mother, who has a history
of substance abuse and who had not participated in drug testing for over a
year, to move into his apartment. Thereafter, as discussed in detail below,
Father did not comply with recommended testing and counseling.

¶7            In August 2015 DCS filed a motion to terminate Father’s
parental rights to the child and in February 2016 filed an amended motion
for termination of the parent-child relationship on the grounds of
abandonment and fifteen-months out-of-home placement pursuant to
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(1), 8(c).3 Father
contested the severance and the court held a two-day severance trial in
February 2016. Afterwards, the court filed a severance order based upon
Father’s failure to remedy circumstances that caused the child to be in an
out-of-home placement for more than fifteen months and found that
severance was in the best interests of the child.4 Father timely appealed and
we have jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution, A.R.S. §§ 8-235(A) (2016), 12-2101 (2016) and Rule 103(A) of
the Arizona Rules of Procedure for the Juvenile Court.

                               DISCUSSION

¶8           The right to custody of one’s child is fundamental, but it is not
absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). To support termination of parental rights, one or more of the
statutory grounds for termination must be proven by clear and convincing
evidence. A.R.S. § 8-537(B); Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz.
174, 176-77, ¶ 9 (App. 2014). In addition, the court must find by a
preponderance of the evidence that termination is in the best interests of the




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

4     The court did not find that DCS met its burden of proof as to Father
regarding the ground of abandonment.


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                            RYAN W. v. DCS, J.W.
                            Decision of the Court

child. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 11 (App.
2011); A.R.S. § 8-533(B).

¶9             We view the evidence in the light most favorable to sustaining
the juvenile court’s findings. Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz.
231, 234, ¶ 13 (App. 2011). As the trier of fact, the juvenile court “is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). We will accept the juvenile
court’s findings of fact unless no reasonable evidence supports those
findings. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App.
2002).

       Reasonable Evidence Supports a Termination of Parental Rights
       Under A.R.S. § 8-533(B)(8)(c)

¶10            To justify termination of parental rights under A.R.S. § 8-
533(B)(8)(c), DCS must prove (1) the child has been in a court-ordered out-
of-home placement for fifteen months or longer; (2) the parent has been
unable to remedy the circumstances which led to the out-of-home
placement; and (3) there is a substantial likelihood that the parent will be
incapable of providing “proper and effective parental care and control in
the near future.” Father challenges the juvenile court’s findings that he
failed to remedy the circumstances that caused the child’s out-of-home
placement and that he would be unable to properly care for the child in the
near future.5 Specifically, Father asserts that “despite not completing some
of the services that DCS offered,” he “demonstrated sobriety, maintained
employment, and secured housing.”

¶11           In determining whether the parent has been able to remedy
the circumstances resulting in out-of-home placement, we consider the
circumstances that prevent a parent from being able to appropriately
provide for the child at the time of the severance. Marina P. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007). The dependency petition
alleged that Father was unable to provide proper, effective parental care
and control due to substance abuse. In connection with its obligation to
provide reunification services, DCS requested that Father participate in



5       DCS is also required to establish that it made diligent efforts to
provide appropriate reunification services. A.R.S. § 8-533(B)(8). Father
does not challenge the juvenile court’s finding that DCS made reasonable
efforts to reunify the family.


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                           RYAN W. v. DCS, J.W.
                           Decision of the Court

random urinalysis testing, substance-abuse treatment, parent-aide services,
a psychological evaluation, and individualized counseling.

¶12            The record reflects that Father participated in numerous
services after his release in September 2015, including four months of clean
urinalysis testing, substance-abuse treatment with SAGE Counseling,
parent-aide services, supervised visits with J.W., and a psychological
evaluation. However, after the psychological evaluation in December 2015,
the treating psychologist and DCS recommended that Father continue
random urinalysis testing, begin long-term substance-abuse treatment, and
participate in individualized counseling. Instead of continuing to comply
with these services, Father failed to complete a single random urinalysis test
after December 2015 and willfully refused to participate in a hair follicle test
pursuant to court order. Father also refused to complete intake for long-
term substance-abuse treatment or participate in individual counseling
after being referred to TERROS by DCS. These failures coincided with
Mother’s moving into his apartment.

¶13           Father argues that it is “not a requirement that a parent
participate in all services offered by DCS.” While there is no statutory
requirement that a parent complete all of the reunification services DCS
recommends, a parent’s failure to complete or finish some services, despite
completing others, can support a court’s order of severance. See Raymond
F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 28 (App. 2010). It was
reasonable, based on the failure to continue random testing or long-term
substance-abuse treatment, for the juvenile court to find that Father had not
demonstrated complete sobriety. We therefore conclude that reasonable
evidence supports the court’s decision that Father failed to remedy the
circumstances causing the child’s court-ordered out-of-home placement.

¶14          We also find adequate support in the record for the court’s
conclusion that a substantial likelihood exists that Father will not be able to
properly parent the child in the near future. Despite his acknowledgement
that Mother has not proven sobriety, Father failed to appreciate the
potential danger Mother poses to the child until she is sober. Father
allowed Mother, who has continued to refuse the substance-abuse
treatment services offered by DCS, to move into a one-bedroom apartment
with him, and has failed to participate in random urinalysis testing since.
While Father argues that Mother was “in the process of moving out” and
that she would not see the child while the child was in Father’s custody, the
court may well have suspected this plan was not sincere, and if it was, it
would not last. In any event, we must consider the circumstances as they



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                           RYAN W. v. DCS, J.W.
                           Decision of the Court

exist at the time of the severance hearing. See Marina P., 214 Ariz. at 330, ¶
22.

¶15           Additionally, the record contains evidence of Father’s temper
and inability to maintain emotional stability. A DCS Case Worker testified
at trial that Father had become angry and argumentative with staff
members at TERROS, and his outbursts during trial proceedings further
displayed an inability to control himself. Accordingly, sufficient evidence
exists to support the juvenile court’s determination that severance of
Father’s parental rights was justified under A.R.S. § 8-533(B)(8)(c).

       Severance is in the Best Interest of J.W.

¶16            Father also contends that severance of his parental rights is
not in the best interest of the child. “[A] determination of the [child’s] best
interest must include a finding as to how the [child] would benefit from a
severance or be harmed by the continuation of the relationship.” Raymond
F., 224 Ariz. at 379, ¶ 30 (citing Maricopa Cty. Juv. Action No. JS-500274, 167
Ariz. 1, 5 (1990)). The court will consider whether (1) an adoptive
placement is immediately available; (2) the existing placement is meeting
the needs of the child; and (3) the child is adoptable. Id.

¶17           The juvenile court found that severance was in the child’s best
interests because it would allow a plan of adoption to go forward which
would benefit the child by providing him with “permanency, stability,
safety, and protection in a substance-free home.” The court’s ruling is
supported by the fact that the child is already in a prospective adoptive
placement that is meeting all of the child’s needs. Furthermore, the child is
adoptable and has no special needs.

¶18            Father does not dispute that the child benefits from his
current placement, but argues that the court did not find leaving his
parental rights intact would impair those benefits. However, the juvenile
court must find only that the child would benefit from severance or be
harmed by the continuation of the parent-child relationship. Raymond F.,
224 Ariz. at 379, ¶ 30. The court need not find that the continuation of the
parent-child relationship would harm the child. Thus, the juvenile court
did not err in finding that severance was in the child’s best interest.




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                          RYAN W. v. DCS, J.W.
                          Decision of the Court

                              CONCLUSION

¶19          For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights.




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




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