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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                   NEIL B.,
                                   Appellant,

                                        v.

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

                             No. 1 CA-JV 18-0399
                                 1 CA-JV 18-0426
                                 (Consolidated)
                               FILED 5-16-2019


           Appeal from the Superior Court in Maricopa County
                         No. JD24293; JS19329
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee DCS
                           NEIL B. v. DCS, C.B.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Neil B. ("Father") appeals the superior court's termination of
his parental rights to his child ("Child"), born in 2012. For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In 2013, the superior court found Child dependent based on
neglect arising from the parents' domestic violence and use of alcohol.
Father thereafter received services related to substance abuse and domestic
violence. Father admitted to a psychologist he had a history of abusing
alcohol. The psychologist diagnosed Father as having "Alcohol Use
Disorder" and concluded Father remained "at risk for continued substance
abuse, particularly due to his history of relapse" and that his continued use
of alcohol placed Child "at risk for neglect and endangerment."
Nevertheless, based on evidence that Father was participating in services,
the superior court dismissed the dependency in June 2014.

¶3             The following month, however, Father assaulted Child's
mother ("Mother") in the presence of Child. When police asked Mother if
Father had struck her before, she responded, "Only when he is drinking
does he hit." Police arrested Father after another domestic violence incident
against Mother in October 2015, and the resulting report again noted Child
was present and Father had been drinking. The Department of Child Safety
("DCS") then took custody of Child and filed a dependency petition. As in
2013, the petition alleged Father and Mother neglected Child due to alcohol
abuse and domestic violence.

¶4            In February 2016, DCS moved to change the case plan to an
in-home dependency with Mother, and the superior court granted the
motion. But two months later, Father brandished a meat cleaver as he
threatened to kill a neighbor of Mother's. Again, Father had been drinking.
The court then granted a motion by DCS to take Child back into its custody.
During the second dependency, Father generally did not participate in the



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                           NEIL B. v. DCS, C.B.
                           Decision of the Court

services DCS offered him. He did, however, participate in drug testing in
April through October 2016, with mostly negative tests, although he tested
positive for alcohol once in August 2016 and refused to submit tests on
multiple occasions. Father also received substance-abuse counseling.

¶5            Father was arrested in July 2016 and charged with assaulting
Mother. According to the police report, he had been drinking and assaulted
Mother because she had "refus[ed] to buy [Father] alcohol." Police arrested
Father again in October 2016. On that occasion, Father had been drinking
and attacked and restrained Mother from leaving their home. Ultimately,
Father pled guilty to kidnapping and aggravated assault. The court
imposed five years' probation and ordered Father to have no contact with
Mother.

¶6             Mother, meanwhile, obtained a protective order against
Father. DCS then moved to dismiss the dependency; according to the
minute entry, DCS indicated "there is not a current safety risk at this time."
Finding Mother had successfully engaged in services, the court dismissed
the dependency and granted her temporary sole custody of Child. Noting
that "Father's substance abuse continues to be an issue, as well as domestic
violence," the court granted Father limited supervised parenting time.

¶7            In October 2017, Father was arrested yet again after assaulting
Mother. Child, who was present at the time, told police Father had thrown
a vodka bottle at Mother, and a DCS report stated Father was intoxicated
during the incident. DCS then took custody of Child for a fourth time and
filed another dependency petition, again alleging Mother and Father were
unable to parent due to alcohol abuse and domestic violence.

¶8            Soon thereafter, DCS filed a petition to terminate both
parents' rights. As to Father, the petition sought termination based on, inter
alia, Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2) and (B)(3)
(2019), neglect and substance abuse, respectively.1 During a three-day
hearing, the court heard testimony from Father, Mother, the DCS case
manager, and Mother's and Child's counselor. Ultimately, the superior
court terminated Father's rights under both the neglect and substance-
abuse grounds.

¶9             Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2019),


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                            NEIL B. v. DCS, C.B.
                            Decision of the Court

12-120.21(A)(1) (2019), -2101(A)(1) (2019) and Arizona Rule of Procedure for
the Juvenile Court 103(A). The superior court also severed Mother's
parental rights, but that portion of the order is not at issue in this appeal.

                               DISCUSSION

¶10           The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). When DCS seeks termination of a parent-child relationship, it must
prove, by clear and convincing evidence, the existence of a statutory ground
under A.R.S. § 8-533(B), Michael J., 196 Ariz. at 249, ¶ 12, 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, 288, ¶ 41 (2005). The superior
court is the trier of fact in a termination proceeding, and "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). We view the evidence and reasonable
inferences drawn from the evidence in the light most favorable to
sustaining the court's decision and will reverse only if no reasonable
evidence supports the court's factual findings. Jordan C., 223 Ariz. at 93, ¶
18.

¶11            Under § 8-533(B)(3), termination of parental rights may be
ordered when "the parent is unable to discharge parental responsibilities
because of . . . a history of chronic abuse of . . . alcohol and there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period." Additionally, DCS must show it made
"reasonable efforts to reunify the family or that such efforts would have
been futile," Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12
(App. 2005), and that the parent's substance abuse "be proven not to be
amenable to rehabilitative services," id., ¶ 12, n.3. "Chronic" substance
abuse is long lasting, but not necessarily continuous. Raymond F. v. Ariz.
Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Temporary
abstinence from alcohol does not generally outweigh a parent's "significant
history of abuse" or "consistent inability to abstain during the case." Jennifer
S. v. Dep't of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016). Because
"children should not be forced to wait for their parent to grow up, . . . a
child's interest in permanency must prevail over a parent's uncertain battle
with" substance abuse. Id.

¶12          Father does not challenge the superior court's findings that
DCS made reasonable efforts or that future efforts would be futile. He also
does not challenge the court's finding that termination was in Child's best


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                           NEIL B. v. DCS, C.B.
                           Decision of the Court

interests. Instead, Father only contests the court's determination that he has
a history of abusing alcohol, is unable to discharge his parental
responsibilities because of his alcohol abuse and will continue abusing
alcohol for a prolonged indeterminate period.

¶13            Father argues his partially successful drug testing,
participation in Alcoholics Anonymous, and the superior court's decision
to return Child to him after the first dependency all show he has not
historically abused alcohol and will not do so in the future. Ultimately,
Father's argument is merely a request to reweigh the evidence, which we
will not do. Jordan C., 223 Ariz. at 93, ¶ 18. The record fully supports the
superior court's findings. As noted, during a psychological evaluation in
2013, Father admitted he has a history of abusing alcohol, and, after the
evaluation, the psychologist diagnosed Father with "Alcohol Use Disorder"
and concluded his continued use of alcohol placed Child at risk. The court
heard evidence that, over the years since then, Father several times attacked
or threatened people while he was under the influence of alcohol. Father
nevertheless testified he does not have a problem with alcohol, he will
continue to drink, and he only participated in substance-abuse services to
satisfy DCS so that he could get his son back. This evidence was a sufficient
basis for the court to find that Father has a history of abusing alcohol and
that such abuse would continue for a prolonged indeterminate period. See
Jordan C., 223 Ariz. at 93, ¶ 18.

¶14             Reasonable evidence also supports the court's finding that
Father is unable to discharge his parental responsibilities because of the
effects his alcohol abuse has had on Child. Child witnessed Father's attack
on Mother in October 2017, the event that precipitated the third
dependency. At an April 2018 hearing, moreover, the DCS case manager
testified that, when DCS removed Child after that incident, she heard Child
say he knew whiskey was a drug and could turn a person "into a beast."
Furthermore, Child's foster parents have reported Child has made
comments such as "Daddy is in jail for hitting Mommy, and that Daddy and
Mommy fight and [Child] ha[s] to stand between them." This evidence,
along with Father's repeated alcohol-related arrests, reasonably support the
court's finding that Father's alcohol abuse has created an unsafe and chaotic
home environment for Child, such that Father is unable to discharge his
parental duties.

                              CONCLUSION

¶15         For the reasons stated above, we affirm the superior court's
order terminating Father's parental rights. Because substantial evidence


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                         NEIL B. v. DCS, C.B.
                         Decision of the Court

supports the court's decision under A.R.S. § 8-533(B)(3), we need not
address Father's arguments relating to the neglect ground for severance.
See Michael J., 196 Ariz. at 251, ¶ 27.




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




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