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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            RICHARD M., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, T.M., Appellees.

                              No. 1 CA-JV 18-0395
                                FILED 5-2-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD33675
                  The Honorable M. Scott McCoy, Judge

                                   AFFIRMED


                                    COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Toni M. Valadez
Counsel for Appellee Department of Child Safety
                        RICHARD M. v. DCS, T.M.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1           Richard Patrick McCann, II (“Father”) appeals the juvenile
court’s severance of his parental rights to his infant child, T.M. Father
challenges only the court’s best-interests findings. Finding no error, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2          At the time of her birth in September 2016, T.M. tested
positive for methamphetamine, amphetamine, and opioids.            The
Department of Child Safety (“DCS”) initiated an investigation of T.M.’s
parents. Upon submitting to urinalysis, Father tested positive for
methamphetamine; accordingly, DCS took temporary custody of T.M.
upon the newborn’s release from the hospital.

¶3              DCS initiated a dependency case and offered Father several
services in order to help him regain permanent custody of T.M. Over the
following year, Father tested positive for methamphetamine use multiple
times, he missed several ordered urinalysis tests, and he closed out
unsuccessfully from substance abuse treatment on four separate occasions
and from parent-aide services once. Father’s failure to complete any
services and repetitive positive urinalysis tests resulted in DCS again
temporarily removing T.M. from the home in November 2016, in January
2017, and for the last time in February 2017, at which point T.M. was placed
in foster care.

¶4            Thereafter, Father violated his terms of probation from a 2013
conviction for possession or use of a dangerous drug. As a result, Father
was sentenced in October 2017 to serve two years’ imprisonment at the
Arizona Department of Corrections, where he remained as of the filing date
of this appeal.

¶5          A contested severance hearing was set for August 22, 2018.
The following month, the juvenile court ordered that Father’s parental



                                     2
                         RICHARD M. v. DCS, T.M.
                           Decision of the Court

rights to T.M. be severed.1 The juvenile court found that DCS proved by
clear and convincing evidence that Father was unable to discharge his
parental duties because of his history of chronic drug abuse, Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(3), despite DCS’ reasonable efforts to provide
appropriate rehabilitative services; and that T.M. had resided in an
out-of-home placement for fifteen months or greater, that Father was
unable to remedy the circumstances leading to the placement, and that it
was substantially unlikely that he would be able to properly and effectively
parent T.M. in the near future, id. at (B)(8)(c). The court further found by a
preponderance of the evidence that severance of Father’s parental rights
was in T.M.’s best interests. Id. at (B).

¶6            Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235,
12-120.21(A)(1), and -2101(A)(1).

                                 ANALYSIS

¶7             Father challenges only the juvenile court’s best-interests
findings. In his opening brief, Father argues that the court failed to “explain
sufficiently how maintaining Father’s parental rights would be a detriment
to the child currently or in the future.”2

¶8           The juvenile court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009). Accordingly, absent clear error, we accept the juvenile court’s
findings. Maricopa Cty. Juvenile Action No. JS-4374, 137 Ariz. 19, 21 (App.
1983).




1      The court also severed the rights of T.M.’s mother. The mother’s
attorney filed an affidavit avowing they had “reviewed the entire record on
appeal and [found] no non-frivolous issue to raise.” Ariz. R.P. Juv. Ct.
106(G).

2      This argument is wholly at odds with the previous paragraph in
Father’s opening brief, where he concedes that the juvenile court’s order
“addressed benefits to [T.M.] from a termination such as a plan for
adoption” and “addressed whether maintaining the parent-child
relationship would be detrimental to [T.M.]”



                                      3
                         RICHARD M. v. DCS, T.M.
                           Decision of the Court

¶9             In addition to finding adequate statutory grounds for
severance of parental rights, the juvenile court “shall also consider the best
interests of the child.” A.R.S. § 8-533(B). “[T]ermination is in the child’s
best interests if either: (1) the child will benefit from severance; or (2) the
child will be harmed if severance is denied.” Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 150, ¶ 13 (2018) (emphasis added) (citation omitted). The
court must look to the totality of the circumstances in making its
determination. Id. at 150-51, ¶ 13 (citation omitted). The best-interests test
is notably disjunctive; therefore, even if Father’s argument was true—that
the court inadequately explained how severance would be detrimental to
T.M.—the court’s explicit determination that T.M. would benefit from
severance of Father’s rights would nevertheless be sufficient.

¶10             Here, the juvenile court addressed both benefit and detriment
in its order, finding:

       Termination of the relationship [with Father] would benefit
       [T.M.] because it would further the plan of adoption, which
       would provide [T.M.] with permanency and stability.
       Continuation of the parent-child relationship would also be
       detrimental to [T.M.] because it would delay permanency,
       requiring [T.M.] to linger in care for an indeterminate period
       since [T.M.] does not have parents who are able to care for
       her.

The court further identified T.M.’s adoptability, and specifically noted the
existence of paternal relatives in Washington state with whom DCS
intended to place T.M., and about whom “[p]reliminary reports are that
[such placement] is approved.” Even absent successful placement with
T.M.’s paternal relatives, the DCS case manager testified that T.M.’s current
foster placement is willing to adopt.

¶11            The court’s order further reflects that, in considering the
totality of the circumstances, the court also weighed:

          •   Father’s long history of abusing methamphetamine,
              heroin, and opiates;

          •   Father’s several prior criminal charges, each of which
              was drug-related;

          •   Father’s violation of the terms of his probation which
              led to his current term of incarceration;



                                      4
                       RICHARD M. v. DCS, T.M.
                         Decision of the Court

         •   Father’s failure to complete substance abuse treatment
             each of the four times he was referred by DCS between
             September 2016 and August 2017;

         •   Father’s repeated failure to comply with urinalysis
             testing;

         •   Father’s failure to participate in or achieve the
             objectives of parent-aide services resulting in his
             unsuccessful discharge; and

         •   As the cumulative result of all of this, Father’s inability
             “to discharge parental responsibilities.”

¶12          In light of these factors, we hold that the juvenile court
properly addressed the best interests of T.M. As importantly, the record
more than adequately supports the court’s best-interests finding.

                              CONCLUSION

¶13          Finding no error, we affirm the decision of the juvenile court.




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




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