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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             GUTHRIE S., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, A.S., Appellees.

                              No. 1 CA-JV 16-0344
                               FILED 1-24-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD527936
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
                         GUTHRIE S. v. DCS, A.S.
                          Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.1


B R O W N, Chief Judge:

¶1           Guthrie S. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his son, challenging the sufficiency of the
evidence supporting the statutory grounds for termination. Because
reasonable evidence supports the court’s order, we affirm.

                             BACKGROUND

¶2            Father and Lindsey B. (“Mother”) 2 are the biological parents
of A.S. (“the child”), born in July 2014. The Department of Child Safety
(“DCS”) became involved almost immediately, after learning the child was
born substance exposed and was diagnosed with Neonate Abstinence
Syndrome. At the time of the child’s birth, Father had pending criminal
charges for armed robbery, burglary, and aggravated assault.3 In August
2014, DCS filed a petition requesting an in-home dependency. Following a
hearing, the court entered a preliminary protective order allowing Mother
to maintain physical custody of the child, with a safety plan. From the
outset of the safety plan, Father received supervised visits, parent aide
services, substance abuse assessment, treatment and testing, and family
preservation services.

¶3           The following week, DCS removed the child from Mother’s
care because the parents violated the safety plan. That same day, Father


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      Mother’s parental rights to the child were also terminated in 2016
but she is not a party to this appeal.

3      In February 2016, Father pled guilty to armed robbery, a class two
felony, in exchange for dismissal of the remaining charges. He was
sentenced to three years’ probation.


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                          GUTHRIE S. v. DCS, A.S.
                           Decision of the Court

filed a motion for the return of the child. The juvenile court promptly
conducted an evidentiary hearing to consider Father’s request. The court
denied Father’s motion, finding Father’s July 2014 hair follicle test was
positive for cocaine, which contradicted his statements under oath that he
had not used cocaine since the beginning of the year. The court also noted
that although Father’s pending criminal charges were “not grounds for
removal of the child, given the other circumstances of the case, it . . . should
be concerning.” Finally, the court found that the parents took the child
“from the safety monitor when they had no authority to do so and knowing
they were violating” the court’s orders. The child was placed in a licensed
foster-care home.

¶4            The child was found dependent as to the parents in January
2015 and the court adopted a case plan of family reunification. With DCS’s
approval, Father completed intensive outpatient treatment with Calvary
Recovery Inc. and the parents successfully completed parent aide services
in June 2015. Parents continued to struggle, however, with substance abuse
and treatment, and in October 2015 the court approved DCS’s request to
place the child with maternal grandmother in South Dakota. In November
2015, the case plan was changed to severance and adoption and DCS filed
a motion for termination based on Arizona Revised Statutes (“A.R.S.”)
sections 8-533(B)(3) (chronic substance abuse) and 8-533(B)(8)(c) (fifteen
months’ out-of-home placement).

¶5            At the severance adjudication in August 2016, DCS case
manager Carolyn Skytta testified that over the previous twenty-two
months, there were numerous problems with Father’s substance abuse test
results including positive tests, failing to test, and attempts to manipulate
tests. DCS made four referrals for Father to begin drug treatment through
Terros, but he failed to complete any referral. Although Father completed
the intensive outpatient program with Calvary, he failed to complete the
recommended after-care.        Father’s last urinalysis test occurred in
September 2015 and was positive for opiates. Skytta testified that Father
failed to “have a full understanding of [his] substance abuse” and, in light
of recent domestic violence allegations involving Mother and Father, she
worried that the child “would be in danger of neglect and possible abuse.”

¶6           The juvenile court granted the motion for termination on both
statutory grounds. Addressing Father’s substance abuse, the court
reasoned in part as follows:

       While Father did successfully complete an Intensive
       Outpatient treatment with Calvary in June 2015 as stated


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                           GUTHRIE S. v. DCS, A.S.
                            Decision of the Court

       above, he did not follow through with aftercare treatment.
       His last drug test was September 10, 2015, after he completed
       the Calvary program. He tested positive for cocaine and
       opiates. He has not drug tested for DCS since then. To date,
       Father has not successfully completed a drug treatment
       program or demonstrated that he can maintain long-term
       sobriety.

       ....

       Before trial, Father disclosed three hair follicle tests each three
       months apart. These are tests he did on his own and not
       through DCS. Father asserts that this establishes his sobriety
       for the last nine months. The Court disagrees. Father has not
       demonstrated over the past two years that he can maintain
       long-term sobriety in order to parent [the child]. Father has
       not provided DCS a urinalysis test since September 2015.
       Further, Father has not successfully completed a drug
       treatment program.

The court also determined that termination was in the child’s best interests,
and this timely appeal followed.

                                 DISCUSSION

¶7              To support an order terminating parental rights, the juvenile
court must find at least one statutory ground is supported by clear and
convincing evidence. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78,
¶ 6 (App. 2005). Additionally, the court must find by a preponderance of
the evidence that the termination is in the best interests of the child. Mario
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 11 (App. 2011); Ariz. Rev.
Stat. § 8-533(B). As the trier of fact, the juvenile court “is in the best position
to weigh the evidence, observe the parties, judge the credibility of the
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004). Accordingly, we will accept the court’s
findings of fact “unless no reasonable evidence supports those findings.”
Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555 (App. 1997).

¶8            Under A.R.S. § 8-533(B)(3), the juvenile court may terminate
parental rights to a child if “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.” Chronic substance abuse is long-lasting but not necessarily


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                          GUTHRIE S. v. DCS, A.S.
                           Decision of the Court

constant substance abuse. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 377, ¶ 16 (App. 2010). Generally, a parent’s temporary abstinence from
drugs and alcohol does not outweigh a significant history of abuse or
consistent inability to abstain during the case. Id. at 379, ¶ 29. And, a child’s
interest in permanency must prevail over a parent’s uncertain battle with
drugs. Id. (citing In re N.F., 579 N.W.2d 338, 341 (Iowa App. 1998)).

¶9            Father argues the juvenile court erred in finding him unable
to discharge his parental responsibilities due to substance abuse. He asserts
he demonstrated continued sobriety, pointing to his participation in the
Calvary treatment program, and three hair follicle tests between December
2015 and May 2016 showing the absence of drug use. Father therefore
contends that DCS failed to meet its burden of proving that he has a history
of chronic substance abuse that would continue for an indeterminate period
and prevent him from being able to parent the child.4 Notwithstanding
Father’s efforts, we conclude that reasonable evidence supports the court’s
ruling.

¶10           Contrary to Father’s suggestion, § 8–533(B)(3) does not
“require that the parent be found unable to discharge any parental
responsibilities but rather that the parent be unable to discharge ‘the
parental responsibilities.’” Maricopa Cty. Juv. Action No. JS–5894, 145 Ariz.
405, 408 (App. 1985). Additionally, as the trier of fact, the juvenile court
could properly consider the evidence of Father’s prior substance abuse
when evaluating whether reasonable grounds exist to conclude an inability
to discharge parental responsibilities would continue for a prolonged and
indeterminate period. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 283, 288,
¶ 20 (App. 2016). That evidence includes the length and frequency of
Father’s substance abuse, the types of substances abused, prior efforts to
maintain sobriety, and prior relapses. Id. (internal quotations omitted).

¶11             Father acknowledged a decades-long history of substance
abuse dating from his teen years until the birth of the child and continuing
through much of the dependency proceedings. Father maintained that he
was “clean and sober” at the time of the hearing and presented the three
hair follicle tests. However, Father did not submit any drug test results in
the three months leading up to the severance hearing to demonstrate
sobriety during that critical time. Additionally, DCS records indicate



4      Father does not challenge any specific factual finding made by the
juvenile court nor does he challenge the court’s legal conclusion that he has
a history of chronic drug abuse.


                                       5
                          GUTHRIE S. v. DCS, A.S.
                           Decision of the Court

Father missed more than 40 required drug tests during the nearly two years
between August 2014 and April 2016.

¶12            At different times in this proceeding, Father tested positive
for various substances including heroin, cocaine, morphine,
hydromorphone, codeine, oxycodone, oxymorphone, methamphetamine,
and amphetamines. Father admitted to frequent use of substances
throughout the case. Father’s last urinalysis was taken in September 2015,
after he completed the treatment program at Calvary, and it was positive
for opiates, cocaine, and heroin. Although Father testified that he
completed the aftercare program with Calvary and participated with a
mentor, he did not provide any confirming documentation, and the records
DCS obtained from Calvary did not reflect such participation. These facts
support the caseworker’s opinion that Father was unable to provide the
child a safe and sober environment, and that reasonable grounds existed to
believe that Father’s condition would continue for a prolonged, uncertain
period of time.

¶13            Father’s temporary abstinence from drugs, as suggested by
three hair follicle tests, does not outweigh his significant history of abuse or
his consistent inability to abstain during this case. See Raymond F., 224 Ariz.
at 379, ¶ 29 (explaining that when a parent consistently fails to remedy
substance abuse, despite knowing the loss of a child is imminent, the parent
has not overcome his or her dependence on drugs). The evidence in this
record is sufficient to support the juvenile court’s findings that Father is
unable to discharge his parental responsibilities due to chronic substance
abuse and that there are reasonable grounds to believe the condition will
continue for a prolonged indeterminate period.5




5      Because we conclude that reasonable evidence supports termination
for chronic substance abuse, we need not address the out-of-home
placement ground. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 3 (App. 2002) (stating if sufficient evidence supports any of the statutory
grounds on which the court ordered severance, it is unnecessary to address
arguments relating to the other grounds). Similarly, as Father does not
challenge the juvenile court’s best interests finding, we need not address it.



                                       6
                        GUTHRIE S. v. DCS, A.S.
                         Decision of the Court


                             CONCLUSION

¶14          Based on the foregoing, the juvenile court’s order terminating
Father’s parental rights to the child is affirmed.




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




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