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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      JESUS R., DEANNA C., Appellants,

                                         v.

DEPARTMENT OF CHILD SAFETY, L.C., E.C., A.C., Defendants/Appellees.

                              No. 1 CA-JV 18-0376
                                FILED 3-19-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD31366
              The Honorable Pamela Hearn Svoboda, Judge

                                   AFFIRMED


                                    COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Father

Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Mother

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee, Department of Child Safety
                    JESUS R., DEANNA C. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


C A M P B E L L, Judge:

¶1             Deanna C. (“Mother”) and Jesus R. (“Father”) appeal from the
superior court’s order terminating their parental rights. Mother argues
insufficient evidence supports the termination of her parental rights based
on her substance abuse and her children’s out of home placement in excess
of fifteen months. Father argues that if Mother’s appeal is successful, this
court should reverse his severance as well so the superior court may
reconsider the termination of his rights under the factors articulated in
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246 (2000), regarding the
length of his incarceration as well as the court’s best interest determination.
We have consolidated the parties’ appeals and, because sufficient evidence
supports the superior court’s findings, we affirm.

                              BACKGROUND

¶2              Mother is the biological parent of three girls: L.C., born in
2008; E.C., born in 2011; and A.C., born in 2012. Father is the biological
parent of the youngest child. Mother has a history of consuming alcohol to
excess and, in September 2015, Mother tried to drive a car with the children
while intoxicated. To prevent Mother from driving the children in that
condition, Mother’s sister tried to stop her, leading to a physical altercation
between the women. During the altercation, Mother swung her purse at her
sister, striking her sister and Mother’s two youngest children, who the sister
was holding. As a result of this incident, the children were taken into care
by the Department of Child Safety (“DCS”).

¶3            DCS filed a petition alleging that the children were dependent
as to Mother due to substance abuse, physical abuse, and neglect and that
the youngest child was dependent as to Father because he had no parental
relationship with her and his whereabouts were unknown. Father later
contacted DCS. The youngest child was placed in his care and the superior
court dismissed her dependency action. Shortly thereafter, Father tested
positive for THC and methamphetamines. DCS removed the child from
Father’s care and filed a second dependency petition. All three children


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                   JESUS R., DEANNA C. v. DCS, et al.
                          Decision of the Court

were subsequently placed with a maternal great aunt (“Great Aunt”). While
in Great Aunt’s care, the eldest child expressed reluctance to visit Mother
but often attended visits to make sure her siblings were safe.

¶4            DCS referred Mother and Father to parent-aide services, drug
screening, and substance abuse treatment. Both parents’ participation was
inconsistent. Father eventually lost contact with DCS. In mid-2016, Father
was arrested and sentenced to three years in prison for misconduct
involving weapons. Upon release, he will be placed on three years of
supervised probation for shoplifting. In early 2017, Mother was arrested for
DUI after she drove her vehicle into a tree. Later that year, the superior
court changed the case plan from reunification to severance and adoption
for both parents.

¶5            In August 2018 the superior court held a termination hearing.
After hearing testimony and reviewing evidence, the court terminated the
parental rights of both parents. Specifically, the superior court terminated
Mother’s parental rights under Arizona Revised Statutes (“A.R.S.”) section
8-533(B)(3) (chronic substance abuse) and § 8-533(B)(8) (fifteen months
out-of-home placement) and Father’s rights under § 8-533(B)(8) (fifteen
months out-of-home placement).

¶6            The court found Mother had a history of chronic substance
abuse. Based on failed drug screenings, the court found that Mother was
unable to discharge parental responsibilities and that it was reasonable to
believe Mother’s chronic drug abuse would continue given the three-year
history of the case and her drug history. For the same reasons, the court
found that Mother had not remedied the circumstances that had caused the
children to be in care. The court also found that Father had not remedied
the circumstances that had caused the youngest child to be in care. The
court noted that based on Father’s inconsistent performance with DCS-
referred services before he was incarcerated, nothing guaranteed that he
would be successful in services when he was released. The court
determined that termination would be in the children’s best interests
because they were together in an adoptive placement with Great Aunt, who
had been caring for them for almost three years, thus establishing
permanency and stability.

                              DISCUSSION

¶7           On appeal, Mother argues insufficient evidence supports the
superior court’s order terminating her rights on the statutory grounds of
substance abuse and fifteen-months out-of-home placement. Father argues



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                    JESUS R., DEANNA C. v. DCS, et al.
                           Decision of the Court

that if Mother’s appeal is successful, we should also reverse his termination
of rights so the superior court may reconsider severance under the factors
articulated in Michael J., 196 Ariz. 246.

¶8             We will not disturb the superior court’s termination of
parental rights unless its factual findings are clearly erroneous—that is,
unless no reasonable evidence exists to support them. See Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 78-79, ¶ 9 (App. 2001). As the trier of fact in
a termination proceeding, the superior 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). Accordingly, we will not reweigh the evidence,
but rather view all evidence and reasonable inferences therefrom in the
light most favorable to affirming the superior court’s order. Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). “If clear and convincing
evidence supports any one of the statutory grounds on which the superior
court ordered severance, we need not address claims pertaining to the other
grounds.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002). The court must also find by a preponderance of the evidence that
severance is in the child’s best interests. See A.R.S. § 8-533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

I.     The court did not err in terminating Mother’s parental rights.

¶9           The superior court may terminate parental rights under
A.R.S. § 8-533(B)(8)(c) if DCS “has made a diligent effort to provide
appropriate reunification services” and

       [t]he child has been in an out-of-home placement for a
       cumulative total period of fifteen months or longer pursuant
       to court order . . . , the parent has been unable to remedy the
       circumstances that cause the child to be in an out-of-home
       placement and 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.

The relevant circumstances are those existing at the time of termination that
prevent a parent from appropriately providing for his or her children. See
Jordan C., 223 Ariz. at 96, ¶ 31, n.14. The fifteen-months out-of-home
placement termination ground does not require the superior court to
measure the parent’s efforts at remedying those circumstances, but rather
to assess the parent’s ultimate ability or inability to cure them. See A.R.S.
§ 8-533(B)(8)(a), (c).



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                   JESUS R., DEANNA C. v. DCS, et al.
                          Decision of the Court

¶10           It is undisputed that the children were in an out-of-home
placement for fifteen months and that DCS made diligent efforts to provide
services to Mother. Rather, Mother challenges the sufficiency of the
evidence only as to the determination that she was unable to remedy the
circumstances of placement and that she will be unable to properly and
effectively parent the children in the near future. The record supports the
juvenile court’s determinations on both issues. At trial, the DCS case
manager testified that the children could not be safely returned to Mother’s
care based on inconsistent sobriety, minimal participation in counseling,
and recent positive drug testing. Although Mother participated in DCS-
referred services, it was intermittent. The court had discretion to find that
intermittent participation in services did not equate to legitimate behavioral
change. Accordingly, sufficient evidence supports the juvenile court’s
findings.1

II.    The court did not err in terminating Father’s parental rights.

¶11            Father argues the trial court erred by failing to analyze the
termination of his parental rights under Michael J., which applies to
severance adjudications under A.R.S. § 8-533(B)(4)—the length-of-
incarceration ground. See Michael J., 196 Ariz. at 251, ¶ 29. Father failed to
raise this issue to the superior court and has therefore waived the issue on
appeal. See Paloma Inv. Ltd. P’ship v. Jenkins, 194 Ariz. 133, 137, ¶ 17 (App.
1998) (“New arguments may not be raised for the first time on appeal.”). As
a further matter, Father argues that “if this Court determines that the trial
court erred in its decision to terminate appellant Mother’s parental rights,
then fairness dictates that this Court assess how that incorrect decision
impacting Mother” affected termination of his parental rights. Because we
affirm the superior court’s findings regarding the termination of Mother’s
parental rights, Father’s argument fails.

¶12           Finally, although Father is incarcerated, length of
incarceration was not the statutory basis for termination of Father’s
parental rights. Rather, the superior court terminated Father’s rights under
A.R.S. § 533(B)(8)(c)—the fifteen-month out-of-home placement ground.
The Michael J. factors do not apply to an analysis of the fifteen-month out-
of-home placement ground or the best interest assessment. See Michael J.,
196 Ariz. at 251, ¶ 29 (Michael J. is to be used in determining “when a[n]

1      Because we affirm the superior court’s order granting severance on
the basis of fifteen months in an out-of-home placement, we need not
address Mother’s argument concerning chronic substance abuse under
A.R.S. § 8–533(B)(3). See Jesus M., 203 Ariz. at 280, ¶ 3.


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                   JESUS R., DEANNA C. v. DCS, et al.
                          Decision of the Court

[incarceration] sentence is sufficiently long to deprive a child of a normal
home for a period of years”). Because clear and convincing evidence
supports the court’s order on the basis of fifteen months in an out-of-home
placement, and a preponderance of the evidence supports the court’s
determination that termination is in the child’s best interest, we affirm the
court’s termination of Father’s parental rights.

                              CONCLUSION

¶13           Because reasonable evidence supports the superior court’s
findings, we affirm termination of both Mother and Father’s parental rights.




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




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