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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            FRANSWA C., Appellant,

                                         v.

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

                              No. 1 CA-JV 16-0249
                                FILED 12-22-2016


            Appeal from the Superior Court in Maricopa County
                          No. JD20783, JS18073
                 The Honorable John R. Ditsworth, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
                         FRANSWA C. v. DCS, J.C.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.


G E M M I L L, Judge:

¶1           Franswa C. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his son, J.C. For the following reasons,
we affirm.

¶2             Father and Jessica W. (“Mother”) are the biological parents of
J-P.C. and J.C.2 Father’s parental rights to J-P.C. were terminated in January
2015 on the basis of abandonment. J.C. was born in June 2015. J.C. and
Mother tested positive for methamphetamine at the time of his birth and
Father was homeless. The Department of Child Safety (“DCS”) took
custody of J.C. and filed a petition of dependency. DCS set reunification
goals for Father and initiated services including substance abuse testing
and treatment and parent aide services. However, Father continued to
abuse substances, marijuana in particular, and participated minimally in
the services provided. DCS filed a motion to terminate Father’s parental
rights under Arizona Revised Statutes (“A.R.S.”) section 8-533, and a
severance hearing was scheduled. At the time of the severance hearing,
Father had not established housing or income, and his participation in
services, including drug testing and treatment, had not improved.

¶3            After receiving testimony and exhibits, the court determined
that Father was unable to discharge his parental responsibilities due to
prolonged substance abuse and found there had been a prior termination
of parental rights for the same cause. Father timely appeals and we have



1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2       Mother’s parental rights regarding J-P.C. were severed on October
27, 2014 and her rights regarding J.C. were severed on May 2, 2016. Mother
is not a party to this appeal.



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                          FRANSWA C. v. DCS, J.C.
                            Decision of the Court

jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1) and
Arizona Rules of Procedure for the Juvenile Court 103(A).

                                  ANALYSIS

I.     Chronic Substance Abuse

¶4             Although the right to the custody and control of one’s
children is fundamental, it is not absolute. See Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12 (2000). To justify termination of the
parent-child relationship, the juvenile court must find clear and convincing
evidence supporting at least one of the statutory grounds under A.R.S. § 8-
533(B). Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 18 (App.
2007). Additionally, the court must find by a preponderance of the
evidence that the termination is in the best interests of the child. Mario G.
v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 11 (App. 2011); A.R.S. § 8-
533(B). 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.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004). We will not disturb the court’s order terminating
parental rights unless its factual findings are clearly erroneous and no
reasonable evidence exists to support them. Minh T. v. Ariz. Dep’t of Econ.
Sec., 202 Ariz. 76, 78–79, ¶ 9 (App. 2001). “[W]e will presume that the
juvenile court made every finding necessary to support the severance order
if reasonable evidence supports the order.” Mary Lou C. v. Ariz. Dep’t of
Econ. Sec., 207 Ariz. 43, 50, ¶ 17 (App. 2004).

¶5            Under A.R.S. § 8-533(B)(3), the juvenile court may terminate
parental rights to a child if “the parent 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.”3




3      Because we conclude that reasonable evidence supports termination
for chronic substance abuse, this court need not address whether clear and
convincing evidence supports severance pursuant to A.R.S. § 8-533(B) (10),
prior termination for same cause. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 3 (App. 2002) (if sufficient evidence supports any of the
statutory grounds on which the court ordered severance, it is unnecessary
to address arguments relating to the other grounds).


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                        FRANSWA C. v. DCS, J.C.
                          Decision of the Court

¶6             At the severance hearing in May 2016, a DCS case manager
testified that Father failed to fully participate in rehabilitation services
offered by DCS, including drug testing and treatment, and housing
assistance. In addition, she described Father’s involvement with a parent
aide as inconsistent and noted that Father never completed parenting
classes. Concerning drug testing, the case manager explained that Father’s
last drug test was in August 2015 and it was positive for THC. After August
2015, Father failed to report for further drug testing. Father completed an
intake with a substance abuse treatment provider in April 2016 but failed
to participate in the recommended treatment. The case manager also
expressed her opinion that Father would continue to abuse controlled
substances for a prolonged, indeterminate period of time. Additionally, she
testified he was unable to discharge parental duties, including basic care of
J.C., because of his substance abuse, homelessness, and failure to engage in
the rehabilitative services provided. She further asserted that Father’s
substance abuse was a concern because it impaired his ability to adequately
supervise J.C., who was less than a year old and needed constant
supervision. Finally, the case manager testified that the conditions that
existed in J-P.C.’s situation, including substance abuse, continued as of the
hearing date in this proceeding.

¶7            Based on the case manager’s testimony and exhibits
presented at the hearing, the court permissibly found, consistent with
A.R.S. § 8-533(B)(3), that Father has a history of chronic and continuing
substance abuse, replete with positive drug tests, and was unable to
discharge his parental responsibilities as evidenced by his inability or
refusal to participate in the services DCS offered him.

¶8             Father argues that marijuana use, like alcohol use, generally
does not disqualify someone from successfully parenting, and asks us to
hold that marijuana use alone is an insufficient ground for severance in this
case. The key question here, however, is whether, based on the evidence
presented to the juvenile court, Father’s marijuana use prevents him from
adequately parenting his son. The juvenile court found that while Father
“deeply and truly loves his children,” he “also loves marijuana” and “is
incapable of giving up marijuana in favor of his son.” In other words, the
juvenile court found the facts to be adverse to Father’s position by
identifying a direct correlation between Father’s love of marijuana and his
inability to discharge parental responsibilities. We conclude the evidence
of record is legally sufficient to support the court’s order terminating
parental rights.




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                          FRANSWA C. v. DCS, J.C.
                            Decision of the Court

II.    Reasonable Efforts

¶9           Father further claims the court erred by severing parental
rights before DCS provided him a second psychological evaluation.
Because Father failed to mention to the juvenile court his desire to complete
an updated psychological evaluation, he has waived the right to argue the
matter on appeal. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179, ¶ 16 (App. 2014) (holding that a parent’s failure to question the
adequacy of services in the juvenile court precludes such challenge on
appeal).

¶10           Even if this issue were not considered waived, the record
supports the court’s finding of appropriate reunification services. The court
considered the numerous services offered by DCS, beginning in 2013 after
J-P.C. was born through the date of the hearing regarding J.C., and
concluded that DCS had made reasonable efforts to preserve the family
relationship. See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192,
¶ 34 (App. 1999) (noting that DCS is required to make reasonable efforts to
preserve the family but is not required to provide every conceivable service
or undertake measures that are futile).             Regarding psychological
examinations, the case manager testified that a referral for a psychological
evaluation was submitted on February 14, 2016, but an evaluation had not
been completed; however, Father completed a psychological evaluation in
2014 in conjunction with J-P.C.’s termination case and it was “not in favor
of [Father] being able to parent his child.” On this record, there is sufficient
evidence to support the juvenile court’s finding that DCS made reasonable
efforts toward reunification and that further efforts would have been futile.

                               CONCLUSION

¶11             The evidence in this record is sufficient to support the juvenile
court’s findings that Father was unable to discharge his parental
responsibilities due to substance abuse, and that this condition is chronic
and will continue for a prolonged indeterminate period. See A.R.S. § 8-
533(B)(3). Although not challenged by Father, the record also supports the
juvenile court’s finding that termination of Father’s parental rights is in
J.C.’s best interests.




                                       5
                        FRANSWA C. v. DCS, J.C.
                          Decision of the Court

¶12           For these reasons, we affirm the juvenile court’s termination
of Father’s parental rights regarding J.C.




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




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