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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            WILLARD E., Appellant,

                                         v.

      DEPARTMENT OF CHILD SAFETY, E.E., H.E., T.E., Appellees.

                              No. 1 CA-JV 16-0540
                                FILED 9-26-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD 510749
                 The Honorable Rodrick J. Coffey, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee, Department of Child Safety
                          WILLARD E. v. DCS et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie joined.


C A M P B E L L, Judge:

¶1             Willard E. (“Father”) appeals the termination of his parental
rights to his three children.1 He challenges the juvenile court’s findings of a
prior dependency, Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(11), fifteen months
in an out-of-home placement, A.R.S. § 8-533(B)(8)(c), and chronic substance
abuse, A.R.S. § 8-533(B)(3). He also challenges the juvenile court’s findings
that termination was in the children’s best interests, and that DCS’s
reunification efforts were adequate. For the reasons explained, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In January 2013, the juvenile court found Father’s children
dependent and placed the children in ADES custody.2 ADES alleged Father
was unable to parent due to domestic violence, substance abuse
(methamphetamine), and neglect (inability to provide stable housing or
appropriate parental care). Subsequently, Father successfully completed
reunification services and the children were returned to his physical
custody. In December 2013, the juvenile court dismissed the first
dependency.

¶3            Seven months after the dismissal, Father was arrested for
possession or use of dangerous drugs (methamphetamine). Three months
later, the juvenile court again found the children dependent based on
similar concerns, and again placed the children into DCS’s custody. Father
was subsequently incarcerated for the drug offense. During the second
dependency proceeding, DCS provided reunification services, including
supervised visitation, parent-aide services, TASC, and TERROS.



1      The juvenile court also terminated Mother’s parental rights. She is
not a party to this appeal.
2      ADES is the predecessor agency to the Arizona Department of Child
Safety (“DCS”).


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                          WILLARD E. v. DCS et al.
                           Decision of the Court

¶4            Two years later, the children’s guardian ad litem moved for
termination of Father’s parental rights based on substance abuse, fifteen
months in an out-of-home placement, and a prior dependency. The juvenile
court held a contested severance hearing. DCS presented evidence that a
month after his arrest, Father missed drug testing. When he finally tested
later that month, he tested positive for methamphetamine. In October, he
continued to test positive for methamphetamine and continued to deny
using drugs. The DCS caseworker testified Father’s substance abuse was a
major ongoing concern, especially given his drug conviction, disclosure of
a history of methamphetamine use, and positive drug tests. Additionally,
Father had not consistently participated in drug treatment services before
or during his incarceration. Although Father’s last drug test was negative,
he had not submitted to drug testing for almost two years before the
severance hearing.

¶5             At the time of the hearing, Father was still incarcerated for the
drug offense and on work furlough. Father admitted he often failed to
participate in reunification services involving drug testing and treatment.
He claimed he was unable to participate, before his incarceration, because
of illness and frequent hospitalization. He also claimed to have participated
in alternative drug testing and drug therapy, both before and during his
incarceration, but provided the court no verification of his participation. See
infra ¶¶ 10-11. He denied that his drug use impacted his ability to parent
his children.

¶6              The juvenile court found DCS had proven the three statutory
grounds for termination by clear and convincing evidence. After finding by
a preponderance of evidence termination was in the children’s best
interests, the juvenile court terminated Father’s parental rights.

                                DISCUSSION

¶7              We view the evidence and reasonable inferences in the light
most favorable to sustaining the juvenile court’s termination order. Jordan
C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). 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.” Id. (citation omitted). This court will not, therefore, reweigh the
evidence. Id. We will affirm a termination order supported by reasonable
evidence. Id.

¶8           Termination of a parent’s parental rights requires the juvenile
court to find at least one statutory ground for termination by clear and



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                           WILLARD E. v. DCS et al.
                            Decision of the Court

convincing evidence, A.R.S. § 8-537(B), and that DCS has proven by a
preponderance of the evidence that termination is in a child’s best interests,
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Termination based on a
prior dependency requires the juvenile court to find: first, the child was
cared for in an out-of-home placement under court order; second, DCS
made diligent efforts to provide appropriate reunification services; and
third, pursuant to court order the child was returned to the legal custody of
the parent from whom the child was removed. A.R.S. § 8-533(B)(11). The
juvenile court must also find that

         Within eighteen months after the child was returned,
         pursuant to court order, the child was removed from that
         parent’s legal custody, the child is being cared for in an out-
         of-home placement under the supervision of the juvenile
         court, the division or a licensed child welfare agency and the
         parent is currently unable to discharge parental
         responsibilities.

A.R.S. § 8-533(B)(11). Finally, the juvenile court must consider the
availability of reunification services and the participation of the parent in
those services. A.R.S. § 8-533(D).


    I.      Prior Dependency—Parental Responsibilities3

¶9            Father challenges the juvenile court’s finding that at the time
of the severance hearing, he was not currently “capable of parenting his
children” within the meaning of A.R.S. § 8-533(B)(11). Father does not
challenge the juvenile court’s findings on the other statutory factors.

¶10             Reasonable evidence supports the finding that, at the time of
the severance hearing, Father was “currently” unable to discharge his
parental responsibilities. While Father offered “a number of excuses” for
his failure to participate in drug testing and drug treatment, the juvenile
court did not find him to be credible. For example, Father claimed he had
been hospitalized during most of the dependency, but he offered
inconsistent testimony on the length and dates of his hospitalizations; he
first testified he was hospitalized “at least two weeks out of the month” but


3      Because we affirm termination of Father’s parental rights on the
ground of a prior dependency, “we need not consider whether the trial
court’s findings justified severance on the other grounds announced by the
court.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000).


                                       4
                         WILLARD E. v. DCS et al.
                          Decision of the Court

later said there were “times it might have been three or four days” some
months. DCS also impeached Father’s testimony with evidence that he was
available for testing, as evidenced by his participation in other services on
the dates he claimed to be hospitalized.

¶11             Father never submitted any documentation verifying trips to
the hospital which resulted in him being unable to participate in drug
testing or treatment. While Father claimed he was routinely tested for drugs
during his frequent hospitalizations and subsequent incarceration, he failed
to provide DCS or the court with any evidence to substantiate the existence
or results of alternative drug tests.

¶12           The juvenile court determined that Father “lack[ed] insight
into the seriousness of his drug abuse.” At the start of the dependency, in
the face of multiple positive drug tests and prosecution for possession of
methamphetamine, Father continued to deny using drugs; at the severance
hearing, he blamed his wife for his methamphetamine use. He never
acknowledged any understanding of the impact of his drug use on the
children when they were in his home. For instance, he testified it had not
impacted his ability to parent because he only used drugs at “a certain time
in the evening,” after his children went to bed, and when they were not “in”
the house.

¶13            Finally, we agree with the juvenile court’s conclusion that
Father did not demonstrate he had stable income or housing. At the
hearing, Father claimed he was on work furlough and working for his own
business earning $900 a week, but provided nothing to support this claim.
He also testified that he recently purchased a home for his children to live
in upon his release, but provided nothing to verify this claim.

¶14           Accordingly, reasonable evidence supports the juvenile
court’s finding that Father is currently unable to discharge his parental
responsibilities. See Maricopa Cty., Juv. Action No. JS-5894, 145 Ariz. 405, 408
(App. 1985) (in determining if a parent is “unable to discharge the parental
responsibilities[,]” juvenile court has flexibility to consider the unique
circumstances of each termination case).

   II.    Reunification Services

¶15           Next, Father argues DCS failed to provide him “with the time
and opportunity to participate in programs designed to help him [become]
an effective parent.” We reject this argument.




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                            WILLARD E. v. DCS et al.
                             Decision of the Court

¶16          The juvenile court considered the availability of reunification
services and Father’s participation in those services. A.R.S. § 8-533(D).4
Father was offered a multitude of reunification services and he admitted he
did not consistently participate in the services offered. The juvenile court
did not find his numerous “excuses” credible. As such, the record
demonstrates that Father did not participate in the reunification services
provided.

¶17            Father argues the juvenile court “improperly” shifted the
burden of proving the statutory ground for termination because it ignored
the lack of “diligence” by DCS. He claims that by failing to obtain his
medical and probation records, DCS failed to “appropriately assess and
provide the best services for [Father].” We reject this argument. The court
properly weighed the evidence and held DCS to its burden. DCS was
required to provide Father “with the time and opportunity to participate in
programs designed to improve the parent’s ability to care for the child” and
to “undertake measures with a reasonable prospect of success” in reuniting
the family. Jordan C., 223 Ariz. at 94, ¶ 20 (citations omitted). As discussed,
throughout the dependency Father did not participate in the services
offered.5 Accordingly, reasonable evidence supports the juvenile court’s
findings that DCS provided appropriate reunification services.

    III.   Best Interests

¶18          Father argues the juvenile court erred in finding that
termination of his parental rights was in the children’s best interests
because of their bond with Father and there was “no harm to the children
to extend [reunification] services for an additional period of time.” We
conclude otherwise.

¶19              Termination of parental rights is in the best interests of a child
if it is either a benefit to the child or the child will be harmed if the parent’s


4      In its termination order the juvenile court did not explicitly reference
A.R.S. § 8-533(D), but the court did make findings that DCS had acted
diligently in providing Father with reunification services and Father failed
to consistently participate in those services.

5      At the hearing, Father attempted to admit certificates of completion
for an addiction class and a parenting class but the juvenile court found that
there was not good cause for Father’s failure to submit the exhibits by the
deadline, a finding that Father does not contest.



                                        6
                         WILLARD E. v. DCS et al.
                          Decision of the Court

rights are not terminated. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16
(2016). Factors that support the juvenile court’s findings that termination is
in a child’s bests interests are: immediate availability of adoption
placement; whether the existing placement meets the child’s needs; and
whether the child is adoptable. Id. “In a best interests inquiry . . . we can
presume that the interests of the parent and child diverge because the court
has already found the existence of one of the statutory grounds for
termination by clear and convincing evidence.” Id. at 4, ¶ 15. Thus, “[i]n
most cases, the presence of a statutory ground will have a negative effect
on the children.” Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350,
¶ 13 (App. 2013) (citation omitted).

¶20            Here, reasonable evidence supports the juvenile court’s
findings that termination was in the best interests of the children. The court
found the children’s current placement was willing to adopt and that they
were otherwise adoptable. It found the placement was meeting the
children’s needs and the children wanted to remain at their current
placement. Although Father claims that he has a bond with the children, he
is essentially asking this court to reweigh the evidence, which we will not
do. See id. at 351, ¶ 31 (appellate court will not reweigh evidence or
substitute its judgment for that of juvenile court).

                               CONCLUSION

¶21          For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to his children.




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




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