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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    ANDRES M., ROBERT M., Appellants,

                                         v.

  DEPARTMENT OF CHILD SAFETY, A.F., M.M., S.M., N.M., Appellees.

                              No. 1 CA-JV 16-0456
                                FILED 5-2-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD 28694
                 The Honorable Cari A. Harrison, Judge

                                   AFFIRMED


                                    COUNSEL

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

John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant, Robert M.

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Appellee, Department of Child Safety
                  ANDRES M., ROBERT M. v. DCS et al.
                       Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1            Andres M. and Robert M. appeal from orders terminating
their parental rights. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           The children at issue in these proceedings have the same
biological mother (“Mother”), who is not a party to this appeal. In July
2014, the Department of Child Safety (“DCS”) asked the superior court to
find M.M., S.M., and N.M. dependent as to their father — Robert, and A.F.
dependent as to his father — Andres. The children had been taken into
care after N.M. and Mother tested positive for methamphetamine at the
time of N.M.’s July 2014 birth. The court found all four children
dependent.

¶3            In February 2016, DCS petitioned the court to sever the
parental rights of Mother, Robert, and Andres, alleging the children had
been in out-of-home placements for more than 15 months, the
circumstances warranting their placements had not been remedied, and
there was a substantial likelihood the parents would not be able to
exercise proper and effective parental control in the near future. See Ariz.
Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c). A contested termination hearing
ensued, after which the court terminated all three parents’ rights.

¶4           Robert and Andres timely appealed. We have jurisdiction
pursuant to A.R.S. §§ 8-235(A) and 12-120.21(A)(1).

                              DISCUSSION

¶5            As relevant here, a court may terminate parental rights if it
finds, by clear and convincing evidence, that the children have been cared
for in an out-of-home placement for 15 months or longer, and despite
diligent efforts to provide reunification services, “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


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                  ANDRES M., ROBERT M. v. DCS et al.
                       Decision of the Court

not be capable of exercising proper and effective parental care and control
in the near future.”1 A.R.S. § 8-533(B)(8)(c); Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005) (clear and convincing evidence standard). Section
8-533(B)(8)(c)’s reference to “circumstances” means “those circumstances
existing at the time of the severance that prevent a parent from being able
to appropriately provide for his or her children.” Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 96 n.14, ¶ 31 (App. 2009).

¶6             The superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Id. at 93, ¶ 18. We view the evidence in the light
most favorable to sustaining a severance order and will affirm unless
there is no reasonable evidence to support it. See Lashonda M. v. Ariz. Dep’t
of Econ. Sec., 210 Ariz. 77, 81–82, ¶ 13 (App. 2005); In re Maricopa Cty. Juv.
Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996).

I.     Robert

¶7            Robert contends the only barrier to his parenting is Mother,
who left his home in June 2016.

¶8            At the time of the termination hearing, Robert’s relationship
with Mother spanned 26 years and produced ten children. N.M. was the
third child to be born substance-exposed. Robert knew his children had
tested positive for methamphetamine.

¶9         One year after DCS took custody of the children, Robert
underwent a psychological evaluation. The evaluating psychologist
concluded:

       [Robert] minimizes the difficulties experienced between him
       and [Mother] related to her methamphetamine abuse. In
       order to make the changes required by DCS, he will need to
       develop insight and acknowledge his role as a parent and
       how enabling [Mother’s] drug abuse has negatively
       influenced the children. These issues are likely to continue

1      The court must also find by a preponderance of the evidence that
termination is in the children’s best interests. Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005). Because neither Robert nor Andres has
challenged the superior court’s best interests findings, we do not address
that requirement. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004)
(claims not raised in an opening brief are waived).



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                  ANDRES M., ROBERT M. v. DCS et al.
                       Decision of the Court

      for an indeterminate amount of time if he continues to turn a
      “blind eye” to [Mother’s] methamphetamine abuse and the
      neglect of the children.

Robert acknowledged receiving reports that “pretty consistent[ly]” noted
Mother’s repeated positive and missed drug tests. Nevertheless, he
remained with her because he was “trying to give her the benefit of the
doubt.”

¶10           Mother testified at the termination hearing that she had last
used methamphetamine five months earlier. When asked about positive
drug tests in the three months preceding the termination hearing,
including a positive test only two weeks earlier, she insisted she last used
“[f]ive months ago.” Robert claimed he was “at work constantly,” never
saw Mother use drugs, did not know where she obtained drugs, and had
no idea how she paid for them given her lack of employment. He did not
ask Mother about these matters, though, because he did not want it “to
escalate into a quarrel” and worried Mother would be upset if he asked
too many questions.

¶11         Robert testified that if his rights were not severed and the
children were returned to him, he would permit them to see Mother.
Asked how he would protect the children if he could not tell when Mother
was using drugs, Robert responded he could “probably” gauge her
“mood swings . . . depending how aggressive [she] is or acts,” even
though he had previously observed her “mood swings” and did not
equate them with drug use.

¶12           Robert failed to take any action when his two older children
were born substance-exposed and did not urge Mother to pursue
treatment then. He also saw no problem with Mother caring for the
children while using drugs because “she’s the biological mother, I mean I
didn’t think nothing of it.” Indeed, Robert perceived Mother’s drug use as
a problem only because of DCS’s involvement and “the long process of . . .
being without the kids.” Robert agreed he had prioritized his relationship
with Mother over the children’s well-being while they remained in foster
care and Mother continued using methamphetamine. See In re Maricopa
Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (The time
limits in A.R.S. § 8-533(B)(8) serve as “an incentive [for parents] to begin
. . . assuming their parental responsibilities as soon as possible.” Belated
efforts at remedying the circumstances which cause out-of-home
placement may be “too little, too late” to rebut evidence justifying
severance.).


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                  ANDRES M., ROBERT M. v. DCS et al.
                       Decision of the Court

¶13            Additionally, the superior court expressed skepticism about
Robert’s assertion that he and Mother had separated. No evidence was
offered regarding Mother’s new residence or how she was paying living
expenses. When meeting with the DCS case manager one month after the
purported separation, neither Mother nor Robert mentioned that Mother
had moved out of the family home. On the contrary, the case manager
testified that, at that meeting, Robert stated separation “was something
they were considering.”

¶14            The superior court concluded that Robert’s inability to detect
Mother’s drug use, combined with his intent to allow her contact with the
children, would place the children at risk if they were returned to his care.
Reasonable evidence supports this determination.             The court also
expressed concern about Robert’s ability to exercise proper and effective
parental care and control in the near future. Mother had been the
children’s primary caregiver. And the case manager testified that Robert
“made it quite clear [in July 2016] that six children would be too much for
him.” Robert admitted saying that, but testified that he would be willing
to “take all of them,” stating that the couple’s 19-year-old daughter would
watch her younger siblings. Robert lacked knowledge about N.M.’s
medical needs and did not inquire about his medical visits or ask to
participate. The case manager testified that despite being repeatedly told
N.M. needed to remain indoors during visits due to severe asthma, Robert
and Mother continued taking him outside, necessitating post-visitation
trips to the emergency room. She opined that Robert did not “seem to
understand the severity of [N.M.’s medical issues] and what needs to be
done to keep him safe.”

¶15           The superior court concluded that Robert “chose to support
Mother and remain in a relationship with her over becoming independent
of Mother so as to allow the children to be returned to his care.”
Reasonable evidence supports this finding, as well as the conclusion that
Robert would be incapable of exercising proper and effective parental care
and control in the near future.

II.   Andres

¶16         Andres contends DCS failed to provide him with
appropriate reunification services and argues his recent sobriety
demonstrates he “is amenable to rehabilitative services.”

¶17           DCS alleged that Andres failed to provide A.F. with basic
necessities of life, including appropriate shelter and financial support.



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                  ANDRES M., ROBERT M. v. DCS et al.
                       Decision of the Court

DCS offered Andres reunification services, including a parent aide, case
aide, substance abuse treatment, and drug testing. Andres completed
substance abuse treatment but continued testing positive for alcohol.

¶18            Andres claimed DCS did not tell him until mid-2016 that he
needed to refrain from drinking alcohol. He asserted that he did not
know continued drug or alcohol use would be a barrier to reunification,
despite his positive tests being discussed at hearings he attended.2 Andres
did, however, acknowledge he “at least understood that the Court was
concerned and did not want [him] to be drinking alcohol.” Despite three
DUI convictions — the most recent in December 2011 — and two
aggravated assault convictions arising from accidents with injuries,
Andres denied having a problem with alcohol, testifying, “I just had back
luck with it.” A psychological evaluation diagnosed Andres with Alcohol
Use Disorder and Stimulant Use Disorder. Although DCS did not refer
Andres for a second round of substance abuse treatment, Andres testified
he would have told the staff he did not have a problem with alcohol. DCS
is only obligated to pursue services that “offer a reasonable possibility of
success” and need not offer “futile rehabilitative measures.” Mary Ellen C.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186–87, ¶ 1 (App. 1999).

¶19             More fundamentally, Andres admitted he could not care for
A.F. even if his parental rights were not severed. At the time of the
termination hearing, Andres was living with his parents and other
relatives. Notwithstanding his desire to live independently, he could not
do so because he owed approximately $50,000 in criminal restitution.
Andres testified that due to his financial situation, “it could be anywhere
from one year to three years” before he could take A.F. back. See Maricopa
Cty. Juv. Action No. JS-501568, 177 Ariz. at 577 (“Leaving the window of
opportunity for remediation open indefinitely is not necessary, nor do we
think that it is in the child’s or the parent’s best interests.”).

¶20           Reasonable evidence supports the determination that
Andres was unable to remedy the circumstances that caused A.F.’s out-of-
home placement and would remain incapable of exercising proper and
effective parental care and control in the near future.




2     Additionally, in its February 2016 severance motion, DCS stated:
“Despite participating in services, [Andres] continues to test positive for
alcohol.”



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                 ANDRES M., ROBERT M. v. DCS et al.
                      Decision of the Court

                             CONCLUSION

¶21           For the foregoing reasons, we affirm the orders terminating
the parental rights of Robert and Andres.




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




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