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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERIC R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.R., G.R.,
Appellees.
No. 1 CA-JV 17-0445
FILED 4-3-2018
Appeal from the Superior Court in Maricopa County
No. JD 29749
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
ERIC R. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.
O R O Z C O, Judge:
¶1 Eric R. (Father) appeals the court’s termination of his parental
rights to his daughter, D.R., and his son, G.R. (collectively, the children).
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Both children were born substance exposed to Mother and
Father.2 In January 2015, the Arizona Department of Child Safety (DCS)
initiated dependency proceedings as to Father, alleging abuse or neglect
due to substance abuse and inappropriate care and supervision. The court
found the children dependent as to Father after Father waived his right to
contest the dependency allegations. A case plan was set for family
reunification concurrent with severance and adoption.
¶3 DCS provided Father reunification services including
referrals to Terros and TASC, parent aide services and visitation. Initially,
Father did not fully participate in these services. In March 2016, DCS
requested and the court ordered the case plan to be changed to severance
and adoption. DCS filed a motion for termination of parental rights as to
Father and the children. DCS alleged Father’s neglect of the children,
Father’s chronic abuse of dangerous drugs rendered him unable to
discharge his parental responsibilities, and the length of time in out of home
placement, as grounds for termination.
1 The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
2 The court terminated Mother’s rights as part of the same
proceedings, but she is not a party to this appeal.
2
ERIC R. v. DCS et al.
Decision of the Court
¶4 After a six-day contested severance trial, the court took the
matter under advisement and terminated Father’s rights due to neglect,
prolonged substance abuse, and length of time in out of home placement.
The court also found DCS proved by preponderance of the evidence
termination of Father’s parental rights was in the children’s best interests.
Father timely appealed. We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.)
sections 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).3
DISCUSSION
¶5 Father argues the court erred in terminating his parental
rights on the grounds of the length of time in out of home placement,
neglect, and substance abuse. Father further contends that terminating his
rights is not in the children’s best interests because “he can be the father
that the children deserve.”
¶6 A court may terminate parental rights if it finds at least one of
the statutory grounds in A.R.S. § 8-533(B) is established by clear and
convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 280, ¶ 1 (2005). The
court must also find by a preponderance of the evidence that termination is
in the child’s best interests. Id. at 284, ¶ 22. We view the evidence in the
light most favorable to sustaining the court’s findings, Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008), and we will not reverse
an order terminating parental rights unless the court’s factual findings are
unsupported by any reasonable evidence. Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998).
I. Statutory Grounds for Termination of Father’s Parental Rights
¶7 A parent’s rights can be terminated when the parent has a
history of chronic drug abuse, resulting in an inability to discharge parental
responsibilities. A.R.S. § 8-533(B)(3). Severance on this basis is appropriate
when the court also finds “there are reasonable grounds to believe that the
condition will continue for a prolonged and indeterminate period.”
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010).
Additionally, the court must also find that DCS “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).
3 We cite to the current version of applicable statutes absent any
change material to this decision.
3
ERIC R. v. DCS et al.
Decision of the Court
A. History of Chronic Drug Abuse
¶8 Father argues the court erred in concluding that he has a
history of substance abuse, “which would continue for an indeterminate
period and prevent him from being able to parent his children.”
Additionally, he contends by completing inpatient treatment and his desire
to maintain his sobriety demonstrate he is “amenable to rehabilitative
services.”
¶9 There is evidence in the record supporting the court’s finding
that Father had a history of chronic substance abuse. Father conceded that
he had a long history of substance abuse issues starting at 17 years of age.
Moreover, he acknowledged he could not recall a time in life where he had
a “significant” gap of sobriety and testified his “longest period” of sobriety
was for one month in May 2016.
¶10 The DCS caseworker testified there were continued concerns
of substance abuse with methamphetamine and heroin, housing, and
employment. Moreover, she stated Father was in jail during the
dependency proceedings, had not completed the psychological evaluation,
and other services were closed out unsuccessful due to lack of participation.
Upon Father’s release from jail, the DCS caseworker stated she discussed
with Father that he would be required to test at TASC, engage in
community parenting classes, and would receive a referral for a case aide.
Once services were in place Father was consistent with visits, testing with
TASC and he completed an inpatient treatment program. However, Father
relapsed in March 2017 when he tested positive for methamphetamines.
B. Inability to Discharge Parental Responsibilities
¶11 Pursuant to A.R.S. § 8-533(B)(3) “a 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.” When determining whether a parent can
discharge parental responsibilities, the court must consider how the
substance abuse hinders the parent’s ability to effectively parent. Raymond
F., 224 Ariz. at 377-78, ¶ 19. In making this finding, the court has flexibility
to consider the circumstances of each case. Maricopa Cty. Juv. Action No. JS-
5894, 145 Ariz. 405, 409 (App. 1985).
4
ERIC R. v. DCS et al.
Decision of the Court
¶12 When the children were removed from the home in January
2015, Father was offered visitation, Terros, and TASC. He was going
through Community Bridges and DCS also provided parent aide services
and referred Father for a psychological evaluation. Father did not
consistently participate in the services and the DCS case manager testified
that other than a few visits, “he was not involved with [the children].” In
2016, DCS suggested to Father inpatient treatment; however, overall, the
evidence supports that Father did not make progress towards reunification.
Father did not actively participate in services as he missed many drug tests,
had a positive result in February 2016, and did not show a commitment to
remain sober. Father also testified his burglary convictions were a result of
funding his heroin habit.
¶13 Father conceded he spent some time homeless from April
2015 until July 2016, and provided testimony he had not seen his children
for approximately five months because he had “some relapses [and his]
mental state and condition was deteriorating.” He also stated he absconded
from his probation and adopted a homeless lifestyle despite the fact his
children had been in DCS custody since January 2015 and stated that he did
not participate in services prior to July 2016 because of substance abuse.
¶14 Father also admitted he abused heroin daily and used other
opiate prescription pills. Moreover, when the court asked Father whether
he received any treatment for his heroin use, Father responded
“[n]umerous.” Father asserted his “last” treatment to address the heroin
use was April 2015. Although Father alleged he did not relapse with
opiates after treatment, he admitted to using methamphetamine daily
between April 2015 and July 2016 despite the children being in DCS
custody. Father testified while in jail he abstained from drugs and although
he participated in some programs during incarceration, he was not
successful in others. Father stated he did not participate enough nor take
advantage of the services offered by DCS. He would have moments of brief
sobriety and then he would relapse. Father stated he used “substances
throughout the duration of DCS’s involvement in [his life] and [his]
children’s life.” DCS offered services for him after the children were
removed from his custody and he stated he “[f]oolishly did not engage in
those services.”
¶15 After inpatient treatment, Father transitioned to intensive
outpatient services in January 2017. Father stated that during this
transitional living side of the program, he was gainfully employed, no
longer homeless and living a more appropriate and responsible lifestyle.
Father stated, “[t]here’s no way [he] can go back to [his previous lifestyle],”
5
ERIC R. v. DCS et al.
Decision of the Court
and he was participating in an intensive outpatient program, meeting with
his sponsor, and engaged in a 12-step program. Despite these successes
Father testified he was not ready to have his children return to him.
Additionally, DCS provided testimony of the lack of communication with
Father while he was in jail and were unaware of Father sending any cards,
gifts, or letters. The DCS caseworker opined the substance abuse prohibited
Father from parenting.
¶16 We have determined that a court may grant severance if a
parent “substantially neglected to remedy [his] addiction during more than
a year of out-of-home placement . . . even though the parent eventually
begins a successful recovery before the severance hearing.” Maricopa Cty.
Juv. Action No. JS-501568, 177 Ariz. 571, 577 (1994). Although Father
contends he is “amenable to rehabilitative services,” the children have been
in care for over two and half years, and the evidence supports the court’s
conclusion that Father’s substance abuse affects his ability to parent and
provide the basic needs for his children.
C. Reasonable Belief that Chronic Drug Abuse Will Continue
¶17 DCS must also prove that there is a reasonable belief that drug
abuse “will continue for a prolonged and indeterminate period.” Raymond
F., 224 Ariz. at 378, ¶ 25. Evidence sufficient to support a finding that a
substance abuse issue will continue may include the parent’s history of use
and failure to complete or engage in offered services. Id. at 378-79, ¶¶ 26-
27. A parent’s failure to abstain from substances despite a pending
severance “is evidence [the parent] has not overcome [the] dependence on
drugs.” Id. at 379, ¶ 29.
¶18 Father argues that his completion of an inpatient program
and his desire to maintain sobriety “demonstrate that he is ‘amenable to
rehabilitative services.’” See Jennifer G., 211 Ariz. at 453 n.3, ¶ 12 (noting
under § 8-533(B)(3) the inherent requirement that a condition is shown not
to be amenable to rehabilitative services applies also to termination of rights
on the grounds of substance abuse). Despite Father’s sobriety in a custodial
setting and his participation in an inpatient treatment facility, DCS
provided evidence that Father does not have a long length of sobriety nor
did he participate in services consistently, despite the children being in care
since January 2015. Services offered to Father included parent aide,
urinalysis testing, substance abuse treatment, a psychological evaluation
and a case aide for visits.
6
ERIC R. v. DCS et al.
Decision of the Court
¶19 Father completed substance abuse treatment in January 2017
and parenting classes through Child Crisis Arizona in October 2016.
However, Father relapsed in March 2017. The relapse was a concern for
DCS because Father would have to start over with substance abuse
treatment and he was residing in a half-way house.
¶20 After Father’s relapse, the DCS case manager testified Father
was engaging in some services and returned to treatment. Father also
testified his relapse was a consequence of “bad decisions” and a “moment
of weakness.” He also conceded despite the fact his substance abuse was a
major issue in this case, he still chose to use and he put drugs before his
children. Father also agreed that it was not fair for his children to wait for
him through the process of sobriety and recovery.
¶21 Because Father relapsed during a termination proceeding,
there is a reasonable belief that Father will abuse drugs for a prolonged and
indeterminate period. See Raymond F., 224 Ariz. at 378-79, ¶¶ 25, 29
(following a statutory timeline is required because “children should not be
forced to wait for their parent to grow up” when a parent consistently fails
to abstain from drugs and alcohol) (quoting In Interest of N.F., 579 N.W.2d
338, 341 (Iowa Ct. App. 1998)). Moreover, Father testified he cannot
guarantee he will not relapse again. Consequently, although recognizing
Father’s sincere efforts, the court correctly concluded, “Father’s substance
abuse will continue given his lengthy history of abusing and the short term
sobriety established thus far.”
¶22 Because we accept the court’s findings of fact unless clearly
erroneous, we find the court did not err in severing Father’s rights as to the
children pursuant to A.R.S. § 8-533(B)(2). See JS-501568, 177 Ariz. at 576.
Additionally, because clear and convincing evidence in the record supports
termination based on the grounds of substance abuse, we need not address
the other grounds alleged. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 251, ¶ 27 (2000) (holding if reasonable evidence supports termination
on any one statutory ground, the appellate court need not consider
challenges pertaining to other grounds).
7
ERIC R. v. DCS et al.
Decision of the Court
II. Best Interests Determination
¶23 A court’s best interests determination must consider whether
“the child[ren] will benefit from termination of the relationship or that the
child[ren] would be harmed by continuation of the relationship.” James S.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998). “[A]
preponderance of the evidence must demonstrate that termination is in the
best interests of the child[ren].” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223
Ariz. 547, 549, ¶ 7 (App. 2010).
¶24 Father argues the State failed to prove by preponderance of
the evidence that his termination of parental rights was in the children’s
best interests. He contends that severance of his rights is not in the
children’s best interests because not only can he “be the Father that the
children deserve” but he can also “offer his children a stable home that is
free of substances.” However, in a best interests analysis, a “court must
balance [a] diluted parental interest against the independent and often
adverse interests of the child in a safe and stable home life.” Kent K., 210
Ariz. at 286, ¶ 35. Contrary to Father’s arguments, Father testified he has
been uninvolved with the children because “a homeless, drug-addicted
person is not [in his] children’s best needs—best interests at all . . .” and that
it was in his “children’s best interest to find permanency sooner than later.”
Although Father argues he can offer his children a substance-free, stable
home, Father also testified he cannot guarantee he will not relapse again.
¶25 When evaluating a child’s best interests, the court may
consider if “an adoptive placement is immediately available,” whether the
existing placement is meeting the child’s needs, and whether the child is
adoptable. Raymond F., 224 Ariz. at 379, ¶ 30. In June 2017, DCS presented
evidence that the children were in a licensed foster home, placed together
and that they were doing well, thriving, and having all their needs met.
Moreover, because the children were young, they had been in care for
almost two and half years, and they needed stability and permanency, the
DCS caseworker opined severing parental rights was in the children’s best
interests. DCS’s position was they still had concern regarding Father’s
substance abuse despite showing some sobriety because Father relapsed
and he did not have stable housing. If the court granted termination, the
plan was for the current placement to adopt both children.
8
ERIC R. v. DCS et al.
Decision of the Court
¶26 Subsequently, the court found that the children’s placement
was providing the children with a loving and nurturing environment
where they were thriving. The court also determined that although a
maternal relative was approved, the children have been with the foster
family since June 2016. Because the children are adoptable, the court
concluded, “termination of [Father’s] rights would allow the children to
move forward with permanency.” See Shawanee S. v. Ariz. Dep’t of Econ. Sec.,
234 Ariz. 174, 179-80, ¶ 21 (App. 2014) (finding that stability and
permanency support a best interest finding). Because substantial evidence
in the record exists to support the court’s best interests finding, we find no
error.
CONCLUSION
¶27 For the foregoing reasons, we affirm the court’s order
terminating Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
9