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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            JOSEPH W., Appellant,

                                        v.

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

                             No. 1 CA-JV 16-0043
                               FILED 8-30-2016


           Appeal from the Superior Court in Mohave County
                        No. L8015JD201407012
               The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellees
                         JOSEPH W. v. DCS, C.W.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1           Joseph W. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his minor child, C.W., on three grounds,
including substance abuse under A.R.S. § 8–533(B)(3). For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In April 2014, the Department of Child Safety1
(“Department”) received a report that Father had physically abused then
three-year-old C.W., causing his lip to bleed. When a Department
investigator spoke with Father, Father admitted that he used
methamphetamine. The investigator also noted that Father had inadequate,
dirty housing and learned that before this incident, C.W. lived in filthy
motel rooms and moved between the care of his parents and maternal
grandmother. As a result, the Department removed C.W. and placed him
with his maternal grandmother. The Department then petitioned for
dependency, alleging that Father neglected C.W. by committing domestic
violence, using illegal substances, and failing to provide C.W. with the basic
necessities of life.

¶3           Over the next month, the Department provided Father with
substance abuse treatment, random drug testing, mental health services,
parenting classes, and supervised visitations. Father, however, failed to
attend his mental health services and parenting classes. Although the
Department had scheduled numerous supervised visits during that time,
Father attended only two. Father also missed ten required drug tests. Of the
five drug tests Father completed in that month, three were positive for
methamphetamine. Then in May 2014, Father, who was on probation for
drug offenses committed before the Department petitioned for


1      The Department of Child Safety is substituted for the Arizona
Department of Economic Security. See S.B. 1001, Section 157, 51st Leg., 2nd
Spec. Sess. (Ariz. 2014) (enacted); Ariz. R. Civ. App. P. 27.


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                         JOSEPH W. v. DCS, C.W.
                           Decision of the Court

dependency, was arrested for violating that probation by testing positive
for methamphetamine and had his probation revoked. Because of his arrest
and incarceration, Father did not complete any of the reunification services
that the Department provided.

¶4           The week following Father’s arrest, the juvenile court
conducted a dependency hearing on the Department’s petition. Father
denied the allegations in the petition, but entered a no contest plea and
submitted the dependency to the court. The court adjudicated C.W.
dependent as to Father and ordered family reunification concurrent with
severance and adoption as the case plan. After the hearing, in June 2014,
Father was sentenced to three years’ imprisonment for the previous drug
offenses.

¶5            In September 2015, while Father remained incarcerated, the
Department moved to terminate Father’s parental rights to C.W. The
Department alleged that Father neglected C.W. and was unable to
discharge his parental responsibilities due to substance abuse and that
Father’s incarceration length was such that it would deprive C.W. of a
normal home for a period of years. At the contested severance hearing, the
Department introduced a February 2014 pre-sentence investigation report
from Father’s criminal case, in which Father reported that he had abused
methamphetamine since the age of 16. According to the report, Father
stated that he then was using the drug three or four times each week and
had abused other drugs in the past, including marijuana, cocaine, LSD, and
heroin.

¶6            The case manager testified that Father remained unable to
properly parent C.W. due to his substance abuse and his inability to provide
adequate housing while incarcerated. The case manager testified that she
believed Father’s substance abuse would continue for a prolonged period
of time because he tested positive for methamphetamine before being
incarcerated and was incarcerated for a drug related offense. She further
believed Father’s substance abuse would continue because, before he was
incarcerated, he failed to comply with his random drug tests and did not
complete any substance abuse treatment.

¶7             Regarding C.W.’s best interests, the case manager testified
that C.W. was placed with his maternal grandmother. The case manager
stated that this was the least restrictive placement and that the placement
was meeting C.W.’s needs. She further stated that C.W. was adoptable and
that his maternal grandmother was willing to adopt him. The case manager
testified that termination of Father’s parental rights was in C.W.’s best


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                           JOSEPH W. v. DCS, C.W.
                             Decision of the Court

interests because C.W. needed a permanent, good, and stable home, but
Father could not meet those needs. Additionally, the case manager testified
that if Father’s parental rights were not terminated, he would still need to
successfully complete reunification services upon his release before the
Department could return C.W. to him. The case manager stated that this
would harm C.W. because C.W. would not have a permanent home in the
meantime.

¶8             During his testimony, Father stated that he had completed
drug counseling while incarcerated. But Father admitted that while in
prison, he could not parent C.W., which included “taking care of[,]
feeding[,] playing with[, and] clothing” him. The juvenile court terminated
Father’s parental rights to C.W., finding that the Department proved all
three grounds alleged in its motion by clear and convincing evidence.
Specifically, the juvenile court found that although the time between C.W.’s
removal and Father’s incarceration was brief, Father was unable to control
his drug addiction even for that time. The court also noted that Father
should have known that he might be incarcerated if he violated his
probation for the drug offenses, but “that wasn’t enough to get him to stop
using drugs, stay out of custody and be in a position where he could work
on a case plan and be a father.”

¶9            The court also found that termination was in C.W.’s best
interests because his placement was meeting his needs and C.W. was
excelling there. The court specifically stated that waiting for Father’s release
from custody to see if he could properly parent C.W. and remain drug free
was too speculative to be in C.W.’s best interests. Father untimely appealed,
but the juvenile court granted his motion to allow the appeal.

                                 DISCUSSION

¶10             Father argues that insufficient evidence supports the juvenile
court’s order terminating his parental rights on any of the three grounds.
We review a juvenile court’s termination order for an abuse of discretion.
E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58 ¶ 9, 344 P.3d 842, 844 (App. 2015).
We accept the juvenile court’s factual findings unless no reasonable
evidence supports them and will affirm a severance order unless it is clearly
erroneous. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 508 ¶ 1, 200
P.3d 1003, 1005 (App. 2008). Additionally, we will affirm the juvenile
court’s termination order if any one statutory ground is proved and if the
termination is in the child’s best interests. Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 376 ¶ 14, 231 P.3d 377, 380 (App. 2010). Because sufficient
evidence supports the juvenile court’s order terminating Father’s parental


                                        4
                          JOSEPH W. v. DCS, C.W.
                            Decision of the Court

rights for substance abuse and its finding that termination was in C.W.’s
best interests, the juvenile court did not err.

              1. Statutory Ground for Termination

¶11            As relevant to our disposition of this appeal, Father argues
that insufficient evidence supports the juvenile court’s order terminating
his parental rights to C.W. for chronic substance abuse. Although a parent’s
right to care, custody, and control of his child is fundamental, it is not
absolute. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78 ¶ 6, 117 P.3d
795, 797 (App. 2005). The juvenile court may terminate a parent’s
fundamental right to a child if clear and convincing evidence shows the
existence of at least one statutorily enumerated ground in A.R.S. § 8–533.
A.R.S. § 8–533; Ariz. R.P. Juv. Ct. 66(C).

¶12            As relevant here, the juvenile court may terminate parental
rights if (1) the parent has a history of chronic substance abuse; (2) the
parent is unable to discharge his parental responsibilities because of his
chronic substance abuse; and (3) reasonable grounds exist to believe that
the abuse will continue for a prolonged and indeterminate period. A.R.S.
§ 8–533(B)(3); Raymond F., 224 Ariz. at 377 ¶ 15, 231 P.3d at 381. The juvenile
court must also consider the “availability of reunification services to the
parent and the participation of the parent in these services.” A.R.S.
§ 8–533(D).

¶13           The juvenile court did not err in terminating Father’s parental
rights because sufficient evidence supports the elements of the substance
abuse ground. First, the record shows that Father has a history of chronic
substance abuse. Father began abusing methamphetamine when he was 16
years old and used the drug up to four times per week at least until
February 2014. Even after the Department removed C.W. in April 2014,
Father continued to abuse methamphetamine. In the span of just one month
between C.W.’s removal and Father’s subsequent May 2014 arrest, Father
missed ten required drug tests. Of the five he completed, three were
positive for methamphetamine. Father also failed to attend his substance
abuse treatment in that month. This shows, as the juvenile court found, that
Father was unable to control his addiction even briefly. In addition to
methamphetamine, Father admitted to using other serious drugs in the
past.

¶14          Second, sufficient evidence supports the finding that Father
could not discharge his parental responsibilities because of his substance
abuse. Parental responsibilities include, among other things, providing a



                                      5
                         JOSEPH W. v. DCS, C.W.
                           Decision of the Court

child with food, shelter, education, and ordinary medical care. Matter of
Appeal in Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178,
185, 692 P.2d 1027, 1034 (App. 1984). The record shows that Father could
not discharge his parental responsibilities due to his substance abuse even
before he was incarcerated. On one occasion, Father was under the
influence of methamphetamine while caring for C.W. and physically
abused the child, giving him a bloody lip. The Department investigator
noted that at that time, Father had provided inadequate and dirty housing
for C.W. In addition to inadequate housing, Father did not provide C.W.
with stable housing because of his drug use. C.W. constantly moved
between different homes and filthy motel rooms with Father and was
shuffled between the care of Father and the maternal grandmother. Father’s
incarceration for violating his probation further shows that Father had little
consideration for C.W.’s health and safety, as he admitted that he could not
parent C.W. or provide him with care, food, or clothing while incarcerated.

¶15           Finally, reasonable grounds exist to believe that Father’s
substance abuse will continue for a prolonged and indeterminate period.
Although Father stated that he had completed drug counseling while
incarcerated, the record shows that when out of prison, Father cannot
maintain his sobriety. As the juvenile court found, even though Father
knew he would be incarcerated and possibly lose his child if he used
methamphetamine and violated his probation, this was not enough to keep
him from using the drug. See Raymond F., 224 Ariz. at 379 ¶ 29, 231 P.3d at
383 (“Father’s failure to remedy his drug abuse, despite knowing the loss
of his children was imminent, is evidence that he has not overcome his
dependence on drugs.”). Even with the assistance of the services that the
Department provided, Father continued to test positive for
methamphetamine. He failed to attend his substance abuse treatment class
and failed to report for several required drug tests. Because Father could
not maintain sobriety for even that brief time, reasonable grounds exist to
believe his addiction will continue for a prolonged period.

¶16           The record further shows that the Department made diligent
efforts to provide Father with reunification services but Father failed to
make the necessary sobriety changes to permit reunification. The
Department provided Father with referrals for drug testing, substance
abuse treatment, parenting classes, mental health services, and supervised
visitations. But Father only sporadically appeared for scheduled drug
testing and failed to appear for any other service during the dependency.
Because Father was then incarcerated for violating his probation for drug
offenses by using methamphetamine, his referrals to these services expired.
Accordingly, sufficient evidence supports the juvenile court’s order


                                      6
                          JOSEPH W. v. DCS, C.W.
                            Decision of the Court

terminating Father’s parental rights to C.W. on the ground of chronic
substance abuse and we need not address the other grounds. See Jesus M. v.
Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3, 53 P.3d 203, 205 (App. 2002).

              2. Child’s Best Interests

¶17             Father next argues that insufficient evidence supports the
juvenile court’s finding that termination of his parental rights was in C.W.’s
best interests. Finding one of the statutorily enumerated grounds by clear
and convincing evidence does not suffice to terminate a parent’s rights.
A.R.S. § 8–533(B). Instead, the juvenile court must also find by a
preponderance of the evidence that termination would be in the child’s best
interests. Id.; Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d 1013, 1022
(2005). Termination is in the child’s best interests if the Department proves
that the child would either benefit from the termination or be harmed by
the continuation of the parent-child relationship. Shawnee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179 ¶ 20, 319 P.3d 236, 241 (App. 2014). Relevant
factors in determining whether a child would benefit from the termination
include whether the current placement is meeting the child’s needs, an
adoption plan is in place, and the child is adoptable. See Tina T. v. Dep’t of
Child Safety, 236 Ariz. 295, 300 ¶ 19, 339 P.3d 1040, 1045 (App. 2014); Mario
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 288 ¶ 26, 257 P.3d 1162, 1168
(App. 2011).

¶18            Sufficient evidence supports the juvenile court’s finding that
terminating Father’s parental rights was in C.W.’s best interests. C.W. had
been in his maternal grandmother’s care for over a year at the time of the
severance hearing. Even though Father wants to have contact with C.W.,
severance is in C.W.’s best interests because it provides the child with
permanency and consistency. The record shows that C.W. was adoptable
and excelling in his placement, which was meeting C.W.’s needs. C.W.’s
maternal grandmother also was willing to adopt him. Finally, the case
manager testified that if Father’s rights were not terminated, Father would
still need to successfully complete his reunification services once released
from prison before the Department would return C.W. to him. C.W. would
consequently not have a permanent home for a longer, indeterminate
period of time. Accordingly, the juvenile court did not err in finding that
terminating Father’s parental rights was in C.W.’s best interests.




                                       7
                 JOSEPH W. v. DCS, C.W.
                   Decision of the Court

                      CONCLUSION

¶19   For the foregoing reasons, we affirm.




                 Amy M. Wood • Clerk of the court
                 FILED: AA




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