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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             LIONEL M., Appellant,

                                         v.

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

                              No. 1 CA-JV 18-0203
                                FILED 12-13-2018


            Appeal from the Superior Court in Yavapai County
                         No. P1300JD201700008
                 The Honorable Anna C. Young, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Florence M. Bruemmer, Anthem
By Florence M. Bruemmer
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
                         LIONEL M. v. DCS, L.M.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.


B E E N E, Judge:

¶1           Leon James Mason (“Father”) appeals the superior court’s
order terminating his parental rights to his child, L.J. For the following
reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In January 2017, the Department of Child Safety (“DCS”)
became involved with Father due to allegations of child neglect and
substance abuse. A DCS investigation found Father and Mother1 smoking
marijuana in the same room as L.J., resulting in his removal from their care.
Father admitted to exposing L.J. to marijuana as well as to leaving L.J.
unattended while he smoked marijuana outside his apartment building. In
February 2017, the superior court adjudicated L.J. dependent as to both
parents.

¶3            Father participated in the services DCS provided, including
individual counseling, anger management and domestic violence
counseling, case management services, parenting classes, visitation,
daycare assistance, substance abuse assessment, urinalysis testing, and
referrals for community resources. Father eventually progressed to
supervised visits with L.J., and then, in October 2017, L.J. was returned to
Father’s physical custody.

¶4           In November 2017, DCS recommended a dismissal of the
dependency. Within days, however, Father tested positive for marijuana
but cited medicinal use for a work-related injury, for which he had a
medical marijuana card. DCS later withdrew its recommendation for
dismissal of the dependency, but did not request L.J. be removed from
Father’s physical custody. DCS also stated the need to confirm if L.J. had
been exposed to marijuana again.


1    The superior court terminated the parental rights of Mother,
Samantha Erin Johnson, in April 2018, and she is not a party to this appeal.


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                           LIONEL M. v. DCS, L.M.
                             Decision of the Court

¶5            In December 2017, a hair follicle sample was taken from L.J.
The results showed exposure to marijuana at an amount well above the
testing threshold. In November and December 2017, Father tested positive
for marijuana on multiple occasions. Moreover, Father admitted to using
marijuana while in L.J.’s presence. All other members of the household
were tested for THC and tested negative for the substance.

¶6             Over Father’s objection, the superior court granted DCS’s
motion to change the case plan to severance and adoption. DCS filed a
motion to terminate Father’s parental rights based on Arizona Revised
Statutes (“A.R.S.”) sections 8-533(B)(2) (neglect), -533(B)(3) (chronic
substance abuse), and -533(B)(8)(b) (out-of-home care for six months or
longer). After a termination hearing, the court severed Father’s parental
rights to L.J. based on each ground alleged in the motion. Father timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1).

                                 DISCUSSION

¶7            Father appeals based on sufficiency of the statutory grounds
for time-in-care, neglect, and substance abuse, as well as the finding that
termination was in L.J.’s best interests.

¶8             The superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citation omitted). Unless no reasonable evidence supports the
court’s factual findings, we accept those findings and will affirm the
termination order unless it is clearly erroneous. Bobby G. v. Ariz. Dep’t of
Econ. Sec., 219 Ariz. 506, 508, ¶ 1 (App. 2008) (citations omitted). The
superior court may terminate parental rights if it finds, “by clear and
convincing evidence, at least one of the statutory grounds set out in section
8-533,” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12 (2000),
and by a preponderance of the evidence that termination is in the best
interests of the child, Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005).

I.     Termination Under A.R.S. § 8-533(B) Has Been Proven by Clear
       and Convincing Evidence.

¶9            Under § 8-533(B), a parent’s rights may be terminated upon
findings that: (1) the child is three years of age or younger; (2) the child has
been in the out-of-home placement for six months or longer; (3) “the parent
has substantially neglected or willfully refused to remedy the
circumstances that cause the child to be in an out-of-home placement”; and


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                           LIONEL M. v. DCS, L.M.
                             Decision of the Court

(4) the agency has made “a diligent effort to provide appropriate
reunification services.” A.R.S. § 8-533(B).

¶10           On appeal, Father does not dispute that L.J. was three years
or less of age, had been in an out-of-home placement for six months or
longer, or that DCS made diligent efforts to provide appropriate
reunification services. Rather, Father denies he substantially neglected or
willfully refused to remedy the circumstances that brought L.J. into care
and caused L.J. to be in an out-of-home placement. Father states “there [is]
no evidence that Father’s legal use of medical marijuana rendered him
unable to safely parent [L.J.].” Father further alleges “[t]he removal of the
Child was based SOLELY on the fact that Father had obtained his medical
marijuana card and began using marijuana again.”

¶11           The record, however, indicates that termination of Father’s
parental rights was not due to his use of marijuana, but rather to L.J.’s
continued exposure to marijuana while in Father’s custody, the very reason
that brought L.J. into care. Notably, the basis for removal is not solely
whether a drug is legal or illegal under state law but rather the impact of
the drug’s use on the child. See Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz.
92, 97, ¶¶ 19-20 (App. 2009) (finding that despite the lack of any evidence
that children were “dirty, unfed, poorly clothed, [or] sick,” a parent’s
“continuing abuse of alcohol seriously threatened her children’s emotional
and physical security”).

¶12           In order to protect L.J., DCS investigated to determine “the
amount and length of time the marijuana ha[d] been used and whether it
was used around [L.J.] in the home in the last 3 months,” as well as “to
assess how [Father]’s use of medical marijuana affect[ed] his ability to
safely parent.” Father understood he should not use marijuana unless L.J.
“was not present in the home, or [Father] had someone to supervise [L.J.]
while [Father] stepped outside, [and] those were the only times [Father]
would [use marijuana].” Yet, contrary to Father’s assertion that he did not
use marijuana around L.J., a “hair follicle test of the child confirmed that
the child ingested THC while in father’s care.”2

¶13          The record contains reasonable evidence to support the
superior court’s finding that Father substantially neglected or willfully
refused to remedy the circumstances that caused L.J. to be in an out-of-


2      Tetrahydrocannabinol (“THC”) is a metabolite of marijuana that
evidences marijuana exposure. State ex rel. Montgomery v. Harris, 234 Ariz.
343, 343-44, ¶ 4 (2014).


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                          LIONEL M. v. DCS, L.M.
                            Decision of the Court

home placement, L.J.’s exposure to marijuana while in Father’s care. The
court did not abuse its discretion in terminating Father’s parental rights.

¶14            Because the court did not err in terminating Father’s parental
rights under A.R.S. § 8-533(B)(8)(b), we need not consider whether the
court’s findings justified severance on the other statutory grounds alleged.
See Michael J., 196 Ariz. at 251, ¶ 27.

II.    Best Interests Has Been Proven by a Preponderance of the
       Evidence.

¶15            Father also challenges the superior court’s finding that
termination of his parental rights was in L.J.’s best interests. Termination
is in the best interests of a child “if either: (1) the child will benefit from
severance; or (2) the child will be harmed if severance is denied.” Alma S.
v. Dep’t of Child Safety, 245 Ariz. 146, 150-51, ¶ 13 (2018). “At the best-
interests stage of the analysis, we can presume that the interests of the
parent and child diverge because the court has already found the existence
of one of the statutory grounds for termination by clear and convincing
evidence.” Id. at ¶ 12 (quotation omitted).

¶16           Here, the DCS caseworker testified that a continued
relationship between Father and L.J. would be harmful because Father
failed to understand that exposing a young child to marijuana is dangerous,
despite two removals from Father’s custody for marijuana exposure.
Additionally, the court found that Father failed to put L.J.’s needs before
his own desire to use marijuana, even after tests confirmed L.J. had been
exposed to THC. The superior court weighed the credibility of the evidence
and found:

       Father does not seem to grasp that while the medical
       marijuana card gives him the ability to use marijuana legally,
       [the card] does not excuse his child being exposed to
       substances while in Father’s care. Father’s use of marijuana
       in front of the child [once] the child was back in his care
       indicates his inability to meet the needs of the child and keep
       him safe from drug exposure, which is especially troubling
       given the fact that it was the child’s exposure to marijuana
       that resulted in the original removal and filing of this
       dependency action.

¶17          The superior court further found L.J. would benefit from
termination as “the child is considered adoptable and DCS is making efforts
to locate an adoptive placement” that would provide him with


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                          LIONEL M. v. DCS, L.M.
                            Decision of the Court

“permanency and stability.” This evidence is sufficient to support the
court’s finding that termination of Father’s parental rights is in L.J.’s best
interests.

                               CONCLUSION

¶18             The superior court’s order terminating Father’s parental
rights to L.J. is affirmed.




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




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