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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              BILLY K., Appellant,

                                        v.

        DEPARTMENT OF CHILD SAFETY, K.K., K.K., Appellees.

                             No. 1 CA-JV 16-0248
                              FILED 1-4-2017


           Appeal from the Superior Court in Maricopa County
                             No. JS517867
               The Honorable Karen L. O’Connor, Judge

                                  AFFIRMED


                                   COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee
                           BILLY K. v. DCS et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco (Retired) joined.


S W A N N, Judge:

¶1           Billy K. (“Father”) appeals the severance of his rights to K.K.
and K.K. (individually “older child” and “younger child,” collectively “the
children”). The juvenile court found clear and convincing evidence that the
children had been in care for more than nine and fifteen months and that
Father had chronic drug problems that would continue for a long period of
time. The juvenile court also found by a preponderance of the evidence that
severance was in the children’s best interests. Father appeals on evidentiary
and due process grounds. We affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Beginning in April 2013 there were reports that the older child
and M.L. (a half sibling not party to this appeal) were not properly
supervised, not attending school, possibly subject to physical abuse, and
malnourished. The younger child was taken into custody in December
2014, shortly after birth, by the Department of Child Safety (“DCS”) because
the child was exposed to methamphetamine. The older child was living
with friends of Father and Marissa K. (“Mother”),1 and DCS was not able
to locate them until February 2015. The older child was then taken into DCS
custody.

¶3           The younger child was found dependent as to Father in
February 2015 and the older child was found dependent as to Father in July
2015. DCS attempted to provide services to Father, but he did not complete
them or meet the goals in the case plan. After a trial, the juvenile court
severed Father’s rights. He appeals.




1     Mother’s rights were also terminated, but she is not a party to this
appeal. Mother and Father are still married but living apart. They have
regular contact.


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                           BILLY K. v. DCS et al.
                           Decision of the Court

                               DISCUSSION

¶4            Father argues that he was denied due process during the
proceedings and that DCS did not present sufficient evidence to support
the three severance grounds or the best interests findings.

¶5            The right to custody of one’s child is fundamental but not
absolute. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). Parents’ due process rights in severance actions entitle them to a
hearing and proper notice of that hearing. Matter of Appeal in Maricopa Cty.
Juv. Action No. JS-4942, 142 Ariz. 240, 242 (App. 1984). Father was given a
hearing and was properly given notice. He testified twice at the hearing
and rebutted the evidence presented by DCS. We perceive no deprivation
of due process.

¶6             To terminate the parent-child relationship, the juvenile court
must find at least one of the statutory factors by clear and convincing
evidence. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002); see also A.R.S. § 8-533(B). The juvenile court must also find by a
preponderance of the evidence that severance is in the children’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). “We will not
disturb the juvenile court’s disposition absent an abuse of discretion or
unless the court’s findings of fact were clearly erroneous, i.e., there is no
reasonable evidence to support them.” Matter of Appeal in Maricopa Cty. Juv.
Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996). When the juvenile
court finds multiple grounds for severance, we will affirm if one of them is
supported by the evidence. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 376, ¶ 14 (App. 2010).

¶7            We need not directly address Father’s arguments on the
evidence of drug dependence or nine months’ time-in-care, because the
evidence supports the juvenile court’s findings of fifteen months’ time-in-
care. A.R.S. § 8-533(B)(3), (B)(8)(a), (B)(8)(c). The parent-child relationship
may be severed if:

       The 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.




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                           BILLY K. v. DCS et al.
                           Decision of the Court

A.R.S. § 8-533(B)(8)(c). Before severing a parent’s rights, DCS must
undertake reasonable efforts to reunite the parent and child. Mary Ellen C.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).

¶8            The facts support the juvenile court’s findings. First, when
the juvenile court severed Father’s rights, the younger child had been in
custody pursuant to court order for eighteen months and the older child for
sixteen months. Second, Father has not remedied the circumstances that
led to the children’s removal. Pursuant to the family-reunification plan
from April 2015, Father had to (1) maintain sobriety, (2) provide stable
housing and proof of employment, and (3) attend all parenting classes and
services.

¶9            First, Father has not proven sobriety. To help address his
drug abuse and its effects on the children, DCS referred Father to TASC for
drug testing and to TERROS for drug treatment, and requested a
psychological evaluation to be completed after three months of sobriety.
Father closed out of several TASC referrals before he started successfully
completing urinary drug testing in August 2015. However, he still has not
submitted a hair follicle for testing pursuant to his open TASC referral.
Father only started participating in TERROS after the case plan shifted from
reunification to severance and adoption.          Moreover, Father never
completed the psychological evaluation as ordered. Though he has
partially complied with the drug testing, Father has not sufficiently
demonstrated sobriety.

¶10          Second, Father has not demonstrated stable housing or
employment. He resides in an adult sober-living home, which he
acknowledges is not appropriate for the children. Though he has self-
reported jobs and income, he never provided proof of his employment to
DCS, apart from a single pay stub.

¶11            Finally, Father has not successfully completed the services
provided by the department or proven he can successfully parent the
children. DCS provided Father with supervised parenting visits. The goals
for the visits were to (1) demonstrate age-appropriate parenting skills and
nurturing — including coming prepared to visits with nutritious foods,
diapers, formula, and clothes; (2) learn “how substance abuse affects
parenting”; (3) demonstrate his ability to care for the older child’s special
needs; (4) demonstrate an understanding of how domestic violence affects
children; and (5) “demonstrate an understanding of appropriate child
supervision.”




                                     4
                            BILLY K. v. DCS et al.
                            Decision of the Court

¶12           Though Father did improve his preparation and came to a
later session with proper food and supplies for the children, he did not
consistently attend sessions. Father did not submit any proof of sobriety to
the parent-aid service provider and did not complete any of his homework
assignments related to substance abuse. Father did not demonstrate an
understanding of how to provide appropriate foods to cope with the older
child’s special needs. Father refused to discuss domestic violence with the
parent aid, insisting that there were no domestic-violence issues between
Mother and Father. Finally, Father was not able to show that his living
situation was conducive to appropriate child supervision. He lived with
people “for a major[ity] of [the] services” who had substance-abuse
problems and could not identify anyone who could help provide a safe
environment for the children. The provider’s final report notes that Father
did improve but has not shown that he can consistently or reliably provide
the supervision the children require.

¶13             Father argues that the trial court did not give enough weight
to the facts that he had a “turn around” in August 2015, that he has made
good faith efforts, and that his rights should not be terminated based on his
failure to overcome all of the circumstances that led to the children’s
removal. See Matter of Appeal in Maricopa Cty. Juv. Action No. JS-501568, 177
Ariz. 571, 576 (App. 1994). We disagree. The parent-aid provider issued its
final report in March 2016 and most of the parent-aid services were
rendered after Father’s “turn around.” Though he did start providing
regular urine samples for drug testing, he has not submitted a hair follicle
for testing, or completed a psychological evaluation — despite starting one.
The improvement from little or no participation to partial participation is
insufficient to show that Father has “remed[ied] the circumstances that
cause[d] the child[ren] to be in an out-of-home placement.” A.R.S. § 8-
533(B)(8)(c). Moreover, though he testified that he could “quickly” arrange
appropriate living spaces for the children, he has had eighteen months to
find a suitable living situation but has failed to do so. Father is not entitled
to an indefinite period of time to remedy the circumstances. No. JS-501568,
177 Ariz. at 577.

¶14           Father finally argues that DCS did not provide sufficient
evidence that severance was in the children’s best interests. Separate from
the severance ground, the juvenile court must find that the children will
affirmatively benefit from the severance or be harmed by a continued
relationship with the parent. James S. v. Ariz. Dept. of Econ. Sec., 193 Ariz.
351, 356, ¶ 18 (App. 1998); Matter of Appeal in Maricopa Cty. Juv. Action No.
JS-500274, 167 Ariz. 1, 6 (1990). In determining best interests, the juvenile
court can consider whether the current placement is meeting the children’s


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                            BILLY K. v. DCS et al.
                            Decision of the Court

needs and whether there is an adoptive placement available. Audra T. v.
Ariz. Dept. of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998).

¶15            The children are currently living together in the least
restrictive placement available, which is potentially adoptive. The older
child has bonded to her current placement and feels like a part of a family
and even asked the case manager’s permission to refer to the placement
parents as “mom” and “dad.” The case manager testified that Father has
not proven sobriety, employment, or housing, and that there are concerns
that if Father regained custody, the children would return to the state they
were in before DCS took them into custody.

¶16             Father argues that there is a relationship between him and the
children “that is worth saving.” Father relies on cases dealing with
incarcerated fathers trying to maintain or establish a relationship with their
children. See Michael J. v. Ariz. Dept. of Econ. Sec., 196 Ariz. 246, 247, 250–51,
¶¶ 3–5, 21, 23–24 (2000) (upholding a severance when the father was
incarcerated and did not try to connect with his son or protect his legal
rights upon learning of the dependency petition); Michael M. v. Ariz. Dept.
of Econ. Sec., 202 Ariz. 198, 198, 200–01, ¶¶ 1–2, 10, 13 (App. 2002) (reversing
the juvenile court’s order denying an incarcerated father’s request to visit
with his child when there was no evidence of harm to the child from a
potential visit). Father is not incarcerated, and these cases are factually
distinguishable. While there is evidence of a bond between Father and the
children, particularly the older child, Father still has not demonstrated he
is capable of parenting the children. The juvenile court properly balanced
the children’s interests with Father’s parental interest. See Matter of Appeal
in Pima Cty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 101 (1994) (“The
law recognizes that judges cannot craft perfect justice for all sides in these
disputes. Judges must simultaneously protect the parent’s interests and
safeguard the child’s stability and security.”). The trial court did not abuse
its discretion.

                                CONCLUSION

¶17           For the foregoing reasons, we affirm.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA
                                         6
