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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               JUAN V., Appellant,

                                         v.

                     DEPARTMENT OF CHILD SAFETY,
                           J.V., E.V., Appellees.

                              No. 1 CA-JV 16-0113
                                FILED 9-13-2016


            Appeal from the Superior Court in Maricopa County
                              Nos. JD16257
                                   JD18172
                 The Honorable Lisa Daniel Flores, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
                          JUAN V. v. DCS, et al.
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1           Juan V. ("Father") appeals from the superior court's order
terminating his parental rights to his two daughters. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Father and a woman not a party to this appeal are the parents
of two daughters, one born in 2014 and the other in 2015. Both girls were
born substance-abused and were taken into custody of the Department of
Child Safety ("DCS") soon after their births.

¶3             Father, 30 years old at the time of the severance trial, first
began using marijuana at the age of nine or ten. He testified he used
marijuana every other day until he stopped using in 2012. He pled guilty
to possession of marijuana in 2012 and was placed on two years' probation.
In 2014, he pled guilty to possession of drug paraphernalia and was placed
on two years' probation, to run concurrently with his initial probation term.
After DCS took custody of his older daughter, DCS offered Father various
services, including substance-abuse assessment and treatment through
TERROS, random drug testing through TASC, psychiatric and
psychological evaluations, parent-aide services and supervised visits.
Father substantially failed to participate in services. Most significantly,
during the first six months of 2015, he provided only 10 of 25 mandatory
drug tests. During that time, three times he tested positive for opiates,
which he attributed to having taken pain-killers he borrowed from a friend.
Because of his failure to participate in drug testing, TERROS closed out
referrals for him in November 2014 and April 2015. Father also failed to
attend three scheduled psychological evaluations.

¶4             After the younger daughter was born in August 2015, DCS
continued to try to provide substance-abuse and drug-testing services to
Father. Father did not engage in the services, causing TERROS to close out
his third referral; TASC also closed his referral.

¶5           After a trial in February 2016, the superior court issued an
order terminating Father's rights to both children on grounds of substance


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                            JUAN V. v. DCS, et al.
                             Decision of the Court

abuse and nine months' time in care. We have jurisdiction of Father's timely
appeal pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes ("A.R.S.") sections 8-235(A) (2016), 12-2101 (2016) and
Arizona Rule of Procedure for the Juvenile Court 103A.1

                                DISCUSSION

¶6            The right to custody of one's child 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-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8-533(B) (2016). Michael J., 196 Ariz. at 249, ¶ 12.
Additionally, the court 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,
284, ¶ 22 (2005). We review a termination order for an abuse of discretion.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Because the superior court is in the best position to "weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings," we will accept its findings of fact unless no
reasonable evidence supports them. See Jesus M. v. Ariz. Dep't of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶7            Pursuant to A.R.S. § 8-533(B)(3), the court may terminate the
rights of a parent who is "unable to discharge parental responsibilities
because of . . . a history of chronic abuse of dangerous drugs, controlled
substances or alcohol and there are reasonable grounds to believe that the
condition will continue for a prolonged indeterminate period."

¶8            Father argues he has not used marijuana since 2012, and that
the superior court mistakenly understood him to say that at the time of trial,
he used marijuana every day. He also argues that the only times he tested
positive for drugs during the dependency and severance proceedings were
the occasions on which he took a friend's pain-killers. Notwithstanding
Father's arguments, reasonable evidence supported the superior court's
finding that he has a history of chronic drug abuse and that it would
continue for a prolonged period.            Father repeatedly disregarded
opportunities to resolve his drug issues. His contention that he no longer
uses drugs is belied by the fact that he missed more random drug tests than
he took during these proceedings and, as noted, he abused a friend's
prescription drugs. Furthermore, at trial, Father denied he had a drug


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


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                          JUAN V. v. DCS, et al.
                           Decision of the Court

problem and minimized the effects his drug use had on his family. Based
on Father's record, the case manager testified Father had not remedied his
drug use, his drug abuse would continue for a prolonged indeterminate
period and that in the meantime, absent termination, his children would be
at risk.

¶9            Under the circumstances, Father's failure to demonstrate that
he could and had abstained from drug use, combined with the evidence
recounted above, supports the court's finding of the statutory ground for
severance based on clear and convincing evidence. See Raymond F. v. Ariz.
Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010). Because we affirm
the court's termination order based on chronic drug abuse, we need not
consider its order of termination based on time in care.

                              CONCLUSION

¶10          For the reasons stated above, we affirm the superior court's
order terminating Father's rights to his two daughters.




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




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