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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             MIGUEL D., Appellant,

                                         v.

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

                              No. 1 CA-JV 17-0055
                                FILED 8-8-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD30631
                 The Honorable Cari A. Harrison, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
                         MIGUEL D., v. DCS, M.D.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.


J O N E S, Judge:

¶1            Miguel D. (Father) appeals the juvenile court’s order
terminating his parental rights to M.D. (Child). Father argues the
Department of Child Safety (DCS) failed to prove by clear and convincing
evidence the statutory ground for severance. For the following reasons, we
affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In June 2015, DCS received a police report advising Father
and Child’s mother (Mother) were arrested for and ultimately charged with
domestic violence assault. Child, then four-years-old, was present during
the incident that resulted in the assault charges. After responding to the
incident, a police officer escorted Child to his bedroom to find his shoes
and, in the process, noticed “at least 2 glass pipes commonly used for
smoking marijuana.” There was also a lidless, near-empty bottle of vodka
on a table in the room and “several empty beer cans” in the corner of the
room. Police contacted DCS, which assumed temporary physical custody
of Child.

¶3            DCS subsequently filed a petition alleging Child was
dependent as to Father on the grounds of abuse and neglect.2 Child was
initially placed with a DCS-licensed foster home in Phoenix but
subsequently relocated to Tucson to reside with Father’s uncle in


1       “We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights.” Marianne N. v. DCS, 240
Ariz. 470, 471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)).

2     DCS also alleged the Child was dependent as to Mother. The Child
was found dependent as to Mother, and her parental rights were eventually
terminated in January 2017. She did not appeal the termination of her
parental rights and is not a party to this appeal.


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                        MIGUEL D., v. DCS, M.D.
                          Decision of the Court

September 2015. Father, who lived in Tucson, was granted supervised
visitation at least once per week for two hours. As part of a preliminary
protective order, Father agreed to participate in parenting classes, domestic
violence counseling, substance abuse assessment and treatment, random
urinalysis testing (UAs), and parent aide services. However, after a
September 2015 evidentiary hearing, the juvenile court adjudicated Child
dependent as to Father and approved a case plan of family reunification.

¶4            At the time of his intake into substance abuse treatment in
July 2015 with La Frontera, Father had a pending DUI related to alcohol.
Moreover, Father previously had his parental rights to his eldest son
terminated based upon substance abuse. In September 2015, Father told La
Frontera about his drinking a “six-pack, two to three times per week” and
smoking marijuana. By October 2015, however, Father had completed
twelve sessions each of counseling for substance abuse relapse prevention,
healthy relationships, and parenting skills.

¶5            Despite Father’s participation in treatment, he continued to
drink alcohol and, in addition, use cocaine. Father’s UA testing period with
the Treatment Assessment Screening Center (TASC) began in June 2015 and
ended in June 2016. Father failed to test more than ten times during this
period, and, when Father did submit UAs, he tested positive for alcohol
four times and positive for cocaine four times. In January 2016, Father
sought additional substance abuse services at La Frontera, but by March
2016, Father stopped attending those group sessions altogether. Two
months later, Father was arrested for criminal nuisance. Father admitted
he had been drinking at the time but was just “having a conversation with
someone” where both were being “obnoxious.” Additionally, in a May
2016 appointment concerning Father’s prescribed medication, he
complained about persisting anxiety and mood swings, which he attributed
to his continuing use of cocaine.

¶6            In June 2016, the juvenile court ordered the case plan be
changed to severance and adoption. Thereafter, Father enrolled in a
twenty-one-week intensive outpatient program (IOP) for substance abuse
relapse prevention. Although Father ultimately completed the IOP, he
tested positive for cocaine in July 2016 and had two unexcused absences
during the program. Moreover, even though Father signed a lease on his
own apartment on August 1, he continued to stay with his dad, despite
admitting he had concerns with his dad’s use of alcohol. Father insisted his
dad’s use of alcohol had no effect on him because he was “strong enough”
to resist temptation, but Father also advised he would not leave Child alone
with his dad if his dad was intoxicated.


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                         MIGUEL D., v. DCS, M.D.
                           Decision of the Court

¶7            In July 2016, DCS moved to terminate Father’s parental rights,
alleging: (1) Father was unable to discharge parental responsibilities
because of a history of chronic substance and/or alcohol abuse, and
(2) Father had been unable or unwilling to remedy the circumstances
causing Child to be in an out-of-home placement for the statutory period of
time. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (8).3 Father objected to the
severance, and a two-day severance hearing was held in January 2017.

¶8             As of the severance hearing, Father had “not made [the DCS
case manager] aware of any [plans]” to continue treatment in the future.
Indeed, the case manager testified “Father has had over a year,
approximately 18 months, to establish a sober, stable, safe life-style [and]
[h]e’s not done so.” Moreover, despite complaints of persisting anxiety,
restlessness, and mood swings throughout the dependency, Father did not
fully accept his having mental health issues. Father did concede he had not
begun taking his medication obtained through substance abuse treatment
as prescribed until December 2016, after “us[ing] it under [his] discretion”
since approximately February 2016. Consequently, the case manager
expressed concern Father was “self-medicating, not medicating.”

¶9           Furthermore, Father’s continued association with individuals
misusing substances, such as Mother and his dad, was a concern. The case
manager “was not even sure where [Father] was staying . . . between his
home and his father’s home,” a situation the case manager believed would
be “very unstable” for Child. Finally, the case manager expressed concern
regarding Father’s aggression and “the uncertainty of whether or not his
mental health issues [were], in fact, treated and managed appropriately.”

¶10           After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence termination of
Father’s parental rights was warranted based upon, among other grounds,
Father’s prolonged drug abuse. The court also found severance was in
Child’s best interests and entered an order terminating Father’s parental
rights. Father timely appealed. We have jurisdiction pursuant to A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for
the Juvenile Court 103(A).




3     Absent material changes from the relevant date, we cite a statute’s
current version.


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                          MIGUEL D., v. DCS, M.D.
                            Decision of the Court

                                DISCUSSION

¶11            To terminate a parent’s rights, the juvenile court must find
clear and convincing evidence to support at least one statutory ground for
severance. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000).4 We “will affirm the juvenile
court’s termination order ‘absent an abuse of discretion or unless the court’s
findings of fact were clearly erroneous.’” E.R. v. DCS, 237 Ariz. 56, 58, ¶ 9
(App. 2015) (quoting Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004)). A finding is clearly erroneous if no reasonable evidence
supports that finding. Mary Lou C., 207 Ariz. at 47, ¶ 8 (quoting Maricopa
Cty. Juv. Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996)). This Court
will not reweigh the evidence, however, because the juvenile court, as a
direct observer of the parties’ credibility, is “in the best position to weigh
the evidence.” Id. (citations omitted).

¶12           A parent’s rights may be terminated when “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.” A.R.S. § 8-533(B)(3). Father does not
dispute that he has struggled with chronic substance abuse but argues the
juvenile court abused its discretion in finding his substance abuse would
continue for a prolonged, indeterminate period. Specifically, Father
contends the court’s finding is inconsistent with the evidence that: (1) he
did not submit any positive drug screens for six months leading up to the
severance hearing; and (2) he graduated from the IOP within a month prior
to the severance hearing.

¶13          In determining whether a parent would be able to overcome
his drug abuse, the juvenile court must consider:

       the treatment history of the parent to gauge the likelihood the
       parent will be in a position to parent the child in the
       foreseeable future. Where the parent has been unable to rise
       above the addiction and experience sustained sobriety in a
       noncustodial setting, and establish the essential support


4      The juvenile court must also find by a preponderance of the evidence
severance is in the child’s best interests. A.R.S. § 8-533(B); Ariz. R.P. Juv.
Ct. 66(C); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Father does
not argue insufficient evidence supported the court’s finding as to Child’s
best interests and, therefore, we need not address it on appeal.


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                         MIGUEL D., v. DCS, M.D.
                           Decision of the Court

       system to maintain sobriety, there is little hope of success in
       parenting.

Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 378, ¶ 25 (App. 2010)
(citing In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)). Moreover,
“drug abuse need not be constant to be considered chronic.” Id. at 377,
¶ 16. A parent’s “temporary abstinence from drugs and alcohol does not
outweigh [a] significant history of abuse or [a] consistent inability to abstain
during th[e] [dependency and termination proceedings].” Id. at 379, ¶ 29.
When determining whether to terminate parental rights because of a
parent’s chronic substance abuse, “a child’s interest in permanency must
prevail over a parent’s uncertain battle with drugs.” Jennifer S. v. DCS, 240
Ariz. 282, 287, ¶ 17 (App. 2016) (citing N.F., 579 N.W.2d at 341).

¶14           Although commendable, Father’s recent efforts do not
overcome his history of substance abuse. The record reflects Father started
using drugs and/or drinking alcohol more than twenty years ago.
Throughout the eighteen-month dependency, Father consistently failed to
abstain from drugs and alcohol as he frequently missed tests and tested
positive for substances on multiple occasions, most recently for cocaine in
July 2016. And because Father’s UAs through the IOP were unmonitored
and no separate drug testing evidence was introduced for the period after
July 2016, it is unclear whether Father truly stopped using drugs and
drinking alcohol. Indeed, the juvenile court found Father “ha[d] a history
of not being honest about his use of alcohol and drugs as evidenced by his
DUI while in treatment and his failure to report his historical use of
cocaine,” suggesting it was hesitant to accept Father’s self-report of
sobriety.

¶15           Moreover, by waiting until the “eleventh hour” to complete
the IOP, Father failed to establish his ability to maintain sobriety outside of
the program for any period of time. Father also consistently failed to follow
instructions related to his use of prescription medication and continued to
use alcohol even after being charged in three separate incidents — for DUI,
domestic violence assault, and criminal nuisance — all of which occurred
while he was using alcohol. Indeed, Father’s use of drugs and alcohol
persisted even after his parental rights to an older child were terminated
based upon his unremitting substance abuse.

¶16          We cannot say the juvenile court’s finding that Father’s
substance abuse was chronic and likely to continue for a prolonged,
indeterminate period is inconsistent with the extensive evidence of Father’s
recent and historical drug and alcohol abuse. See, e.g., Maricopa Cty. Juv.


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                          MIGUEL D., v. DCS, M.D.
                            Decision of the Court

Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (concluding parent’s
eventual efforts toward a successful recovery from substance abuse,
beginning eight months prior to the severance hearing, were “too little, too
late”). The court’s findings are supported by the record, and we find no
abuse of discretion.5

                               CONCLUSION

¶17            The juvenile court’s order terminating Father’s parental rights
to Child is affirmed.




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




5      Because we conclude clear and convincing evidence supports
termination of Father’s parental rights on the ground of chronic substance
abuse, we need not address whether severance was warranted based upon
any other grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 3 (App. 2002) (citing Michael J., 196 Ariz. at 251, ¶ 27, and Maricopa Cty.
Juv. Action No. JS-6520, 157 Ariz. 238, 242 (App. 1988)).


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