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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ROBERTO A., Appellant, 

v.

DEPARTMENT OF CHILD SAFETY, L.A., N.A., Appellees. 

No. 1 CA-JV 15-0302 

Appeal from the Superior Court in Maricopa County 

No. JD24065 

The Honorable Sally S. Duncan, Judge 

AFFIRMED 

COUNSEL 

David W. Bell, Higley 

By David W. Bell 

Counsel for Appellant 

Arizona Attorney General’s Office, Phoenix 

By JoAnn Falgout 

Counsel for Appellee Department of Child Safety
ROBERTO A. v. DCS, et al. 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 Roberto A. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to L.A. and N.A. (collectively, “the 

children”). Father does not contest the court’s finding of four statutory 

grounds for severance, but contends the juvenile court erred in concluding 

severance was in the children’s best interest. For the following reasons, we 

affirm. 

FACTS AND PROCEDURAL HISTORY1

¶2 Father and S.A. (“Mother”) are the biological parents of the 

children, who were born in 2006 and 2009, respectively.2 In May 2013, the 

Department of Child Safety (“DCS”) received a report stating that Father 

was selling drugs from the home and neglecting the children. A DCS case 

manager investigated and requested that the parents clean their apartment 

and submit to urinalysis (“UA”) testing through TASC; both parents tested 

 

1 As the trier of fact in a termination proceeding, the juvenile 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, 219 P.3d 296, 303 (App. 2009) (quoting 

Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 

(App. 2004)). We therefore view the evidence and reasonable inferences to 

be drawn from it in the light most favorable to affirming the juvenile court’s 

order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 

604, 606 (App. 2010). 

2 The juvenile court also terminated Mother’s parental rights, but she 

is not a party to this appeal. Mother has three other children with different 

fathers, and although those children and their fathers were also subject to 

the dependency petition in this case, none of them were subject to the 

severance order at issue in this appeal. 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

3

positive for morphine and other illegal substances. The family moved 

before DCS could again contact them. 

¶3 On July 23, 2013, DCS received another report regarding the 

family at a new address. The DCS case manager visited the family’s 

apartment and found it “was filthy and infested with cockroaches” and 

“smelled like urine.” Moreover, the children appeared “dirty” with 

unclean clothing and had lice. Mother and Father admitted using heroin in 

the home while the children were present. DCS took L.A., N.A., and their 

three older half-siblings into protective custody that day. 

¶4 On July 26, 2013, DCS filed a dependency petition, alleging 

Father and Mother were abusing illegal substances and neglecting the 

children.3 The petition noted in part that the parents had been evicted from 

two apartments in the previous six months, and “[t]he last apartment in 

which the children were living was infected with bedbugs and all of their 

clothes had to be abandoned.”

¶5 In October 2013, the juvenile court found the children 

dependent as to both parents and approved a case plan of family 

reunification. DCS offered the parents an array of services designed to 

reunify the family, including UA testing through TASC, substance abuse 

assessment and treatment through TERROS, psychological consultations 

and evaluations, individual counseling, parent aide assistance, visitation, 

and bus passes. DCS also asked Father to complete classes addressing 

domestic violence and substance abuse. However, Father did not comply 

with the UA testing, substance abuse assessment and treatment, 

psychological evaluation, parent aide services, and counseling services 

offered by DCS. In fact, both parents continued to use illegal substances, 

failed or refused to engage in the recommended and offered services and 

classes, frequently failed to attend visits with the children, and failed to 

obtain stable housing. At one point, Mother advised the DCS case manager 

 

3 At the outset of these proceedings, the children were taken into care 

by Child Protective Services (“CPS”), formerly a division of the Arizona 

Department of Economic Security (“ADES”), and ADES filed the 

dependency petition in this case. In May 2014, however, CPS was removed 

as an entity within ADES and replaced by DCS, an entity outside of ADES. 

See 2014 Ariz. Sess. Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly, 

DCS was substituted for ADES in this matter, see ARCAP 27, and references 

to DCS in this decision encompass both ADES and the former CPS.
ROBERTO A. v. DCS, et al. 

Decision of the Court 

4

that she and Father “were living in abandoned houses and eating out of 

dumpsters.”

¶6 In June 2014, DCS moved to terminate the parents’ parental 

rights to L.A. and N.A. As to Father, DCS initially alleged three grounds 

for termination: (1) abandonment under Arizona Revised Statutes 

(“A.R.S.”) section 8-533(B)(1); (2) chronic substance abuse under A.R.S. § 8-

533(B)(3); and (3) at least nine months’ out-of-home placement under A.R.S. 

§ 8-533(B)(8)(a).4 At the time, DCS planned to place the children with their 

paternal grandmother (“Grandmother”) in California and had started the 

approval process under the Interstate Compact on the Placement of 

Children (“ICPC”). See generally A.R.S. §§ 8-548 to -548.06. 

¶7 Also in June 2014, Father was arrested for possession or use 

of a narcotic drug (heroin). At the time of his arrest, he was on probation 

in two prior criminal cases. In July 2014, Father pled guilty to possession 

or use of a narcotic drug, and the trial court sentenced him to 2.5 years’ 

imprisonment. On November 26, 2014, DCS amended the termination 

motion to add two additional grounds for severing Father’s parental rights: 

(1) the length-of-sentence ground under A.R.S. § 8-533(B)(4) and (2) the 

fifteen months’ out-of-home placement ground under A.R.S. § 8-

533(B)(8)(c). 

¶8 At the July 30, 2015 severance hearing, Father testified that 

although at one time he had expected to be released early—in May or 

August 2016—he had incurred several disciplinary infractions and his 

expected release date had been moved back to November 12, 2016. He also 

testified he had sent the children letters while in prison, had completed a 

“positive parenting class,” had recently been accepted into a nine-month 

substance abuse class entitled “Men in Recovery,” and had attended 

NA/AA meetings and “school.” He admitted, however, that while he was 

in prison, he was unable to meet any of the children’s basic needs such as 

food, housing, or medical care. 

¶9 The DCS case manager, Heather Mills, testified at length and 

addressed whether it would serve the children’s best interest to terminate 

Father’s parental rights. Mills testified that if Father’s parental rights were 

not terminated, Father would need to engage in services to demonstrate his 

sobriety and stability after his release from prison, which would require 

 

4 We cite the current version of all statutes cited because no changes 

material to our decision have occurred since the severance. 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

5

that the case remain open for at least a year after his release and perhaps 

longer—well into 2017 and possibly into 2018.5 She opined that waiting for 

these events to happen would not serve the children’s best interest, 

particularly because the children had already been in out-of-home care for 

two years, and it was “in their best interests to have some sort of stability 

[and] permanency” and not “have to worry about somebody coming in and 

moving them.”

¶10 During the time the case had been open, the children had 

resided in four separate placements, and although they were in a licensed 

foster placement, they were not in an adoptive placement. Mills stated, 

however, that the children were thriving in their current placement and the 

behavioral issues they had previously displayed had subsided. Further, 

although there were no identified prospective adoptive placements at the 

time of the hearing, Mills believed the children were “very much” 

adoptable, in part because they were “great girls to be around.” Mills 

explained the children had not yet been placed in an adoptive home 

because Grandmother had initially sought to have the children placed with 

her in California and the ICPC process had taken time, but Grandmother 

had recently advised that she was unable to take the children and did not 

know of any other family members willing or able to care for the children. 

¶11 Mills agreed it might be more difficult to place older children 

in an adoptive home because adoptive families “are usually looking for 

infants and toddlers.” She also explained, though, that it would likely be 

even more difficult to find adoptive homes for the children in a year or two 

(i.e., if the court were to wait longer to see if the parents could be 

rehabilitated) because they “would have more behaviors” after being in 

foster care for the additional time. She explained that, in her experience, as 

children in foster care get older, the probability increases that they will 

engage in risky behaviors such as drug use, promiscuity, and running 

away. For these reasons, it would not get easier to find adoptive placements 

as the children grew older. 

¶12 Mills also testified the children would benefit if their parents’ 

rights were terminated immediately because “it would give [the children] 

some sort of hope to move forward [and] to leave it all behind.” Moreover, 

it would provide them with permanency and stability. Mills agreed that 

some prospective adoptive placements are interested only in children who 

 

5 Similarly, Mills explained that Mother would have to demonstrate at 

least six months to a year of sobriety and stability before the children could 

be returned to her care. 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

6

are legally free for adoption, and she believed L.A. and N.A. could be 

adopted within the next two years if the parents’ rights were severed 

immediately.

¶13 At the conclusion of the hearing, the juvenile court found DCS 

had met its burden of proving by clear and convincing evidence the alleged 

statutory grounds for severance and that severing both Father’s and 

Mother’s parental rights was in the children’s best interest. In a signed 

minute entry order filed September 2, 2015, the court granted termination 

of the parents’ parental rights. As to Father, the court found DCS had 

proven grounds for severing his parental rights under A.R.S. § 8-533(B)(1) 

(abandonment), (B)(3) (chronic substance abuse), (B)(4) (length of sentence), 

and (B)(8)(a) (at least nine months’ out-of-home placement). 

¶14 Father filed a timely notice of appeal. We have appellate 

jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9; 

A.R.S. § 8-235(A); and Rule 103(A) of the Arizona Rules of Procedure for 

the Juvenile Court. 

ANALYSIS 

¶15 Father appeals only the juvenile court’s finding that 

termination of his parental rights was in the children’s best interest. Father 

contends severance “effectively orphans these children,” and freeing the 

children for adoption is “an illusory benefit” because they are not placed in 

adoptive homes, there is no adoptive plan, and “the likelihood of them 

being adopted is very much in doubt.” He further contends, “[t]here would 

have been no harm in preserving [his] rights” until an adoptive home could 

be identified. Because reasonable evidence supports the juvenile court’s 

findings that terminating Father’s parental rights would benefit the 

children, while continuing the dependency would harm them, we affirm. 

¶16 On appeal, we do not reweigh evidence and will affirm the 

juvenile court’s fact findings if supported by reasonable evidence. Denise

R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–94, ¶ 4, 210 P.3d 1263, 1264–65 

(App. 2009); Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 

P.3d 203, 207 (App. 2002). Moreover, “[t]he juvenile court will be deemed 

to have made every finding necessary to support the judgment.” Matthew 

L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010) (citations omitted). 

¶17 Parental rights in the care, custody, and management of their 

children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz. 

279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S. 

745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

7

¶¶ 11-12, 995 P.2d 682, 684 (2000)). A court may sever those rights if it finds 

clear and convincing evidence of one of the statutory grounds for 

severance, and finds by a preponderance of the evidence that severance is 

in the best interest of the children. See A.R.S. §§ 8-533(B), -537(B); Kent K., 

210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–16, 1022. Father does not 

contest the juvenile court’s findings on the statutory grounds and, thus, has 

waived any argument on those grounds in this appeal. See Childress Buick 

Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (stating 

that issues not raised in appellate briefs are deemed waived). 

¶18 In proving severance is in the children’s best interest, DCS 

must show “how the child would benefit from a severance or be harmed by 

the continuation of the relationship.” Maricopa Cty. Juv. Action No. JS500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations omitted). The 

juvenile court may find that severance affirmatively benefits a child because 

an adoption plan exists, the child is adoptable, or the child is more stable in 

an existing placement. See Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 

102, 107, 876 P.2d 1137, 1142 (1994) (recognizing the court may “consider 

evidence of whether the needs of the child are being met”); Juv. Action No. 

JS-500274, 167 Ariz. at 6–7, 804 P.2d at 735–36; Oscar O., 209 Ariz. at 334, 

¶ 6, 100 P.3d at 945. Severance may benefit a child if it would free the child 

for adoption or if the child “would benefit psychologically from the stability 

an adoption would provide.” Maricopa Cty. Juv. Action No. JS-501904, 180 

Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994). 

¶19 The court may also find severance is in a child’s best interest 

if it eliminates a threat or detriment to the child if the relationship between 

the parent and the children were allowed to continue. See Juv. Action No. 

JS-500274, 167 Ariz. at 6–7, 804 P.2d at 735–36; Oscar O., 209 Ariz. at 334, 

¶ 6, 100 P.3d at 945. “In most cases, the presence of a statutory ground will 

have a negative effect on the children.” Maricopa Cty. Juv. Action No. JS6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988); see also Kent K., 210 

Ariz. at 286, ¶ 35, 110 P.3d at 1020 (stating that, in a best interest inquiry, 

“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” (citation omitted)). 

Thus, “where there is clear and convincing evidence of parental unfitness 

which has not been remedied notwithstanding the provision of services by 

[DCS] and which detrimentally affects the child’s well-being, severance 

may be warranted and appropriate even in the absence of a plan for 

adoption.” Pima Cty. Juv. Action No. S-2460, 162 Ariz. 156, 158, 781 P.2d 634, 

636 (App. 1989). 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

8

¶20 In this case, reasonable evidence in the record supports the 

juvenile court’s best interest findings, which demonstrate both affirmative 

benefits from severance and the elimination of potential threats and 

detriments in continuation of the relationship. Although Father contends 

that severance “orphans” the children because DCS currently does not have 

an adoptive plan for them, the juvenile court found it was in the children’s 

best interest to terminate the parents’ rights “notwithstanding the fact that 

they are not in an adoptive placement.” The court found severance would 

benefit the children because it would “provide the children permanency 

and stability and a higher likelihood of adoption” with the parental rights 

terminated. These findings are supported by the testimony of Mills, the 

case manager, who testified that although an adoptive placement had not 

yet emerged, the children were “very much” adoptable and would benefit 

psychologically from the permanence and stability an adoption would 

provide. “Adoptable” status is enough of an objective benefit to legally 

support the “best interest” prong of the severance statute. See Juv. Action 

No. JS-501904, 180 Ariz. at 352, 884 P.2d at 238 (stating the government did 

not need to show an adoption plan existed, but did need to show the child 

is adoptable). Moreover, Mills explained the children were thriving in their 

current placement, see Juv. Action No. JS-8490, 179 Ariz. at 107, 876 P.2d at 

1142, while Father was incarcerated and unable to meet even their most 

basic needs. Thus, even without an adoptive placement waiting, the 

evidence in the record demonstrates the children’s needs are being met in

their current placement, which also supports the juvenile court’s best 

interest finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, 

¶ 5, 982 P.2d 1290, 1291 (App. 1998). 

¶21 The court additionally found that continuing the parent-child 

relationship would harm the children because Father would not be released 

from prison until November 2016, at which point a “lengthy reunification 

process” would begin. The court noted that the children had already “been 

in four placements, which is not a way for children to live.” These findings 

were supported by Father’s and Mills’ testimony, as well as by exhibits 

presented at the hearing. At the time of the severance hearing, the children 

had already been in foster care for two years—while Father at first failed to 

engage in reunification services and then became incarcerated. Moreover, 

waiting an additional two or more years in foster care for Father to be 

released and then attempt reunification could both lead the children to 

engage in risky behaviors and decrease their chances of being adopted. 

Thus, severance is warranted in this case because evidence of parental 

unfitness exists that “detrimentally affects the child[ren]’s well-being,” Juv. 

Action No. S-2460, 162 Ariz. at 158, 781 P.2d at 636, and would cause them 
ROBERTO A. v. DCS, et al. 

Decision of the Court 

9

to “be harmed by the continuation of the relationship.” Juv. Action No. JS500274, 167 Ariz. at 5, 804 P.2d at 734 (citations omitted). 

¶22 The best interest finding is further supported by the fact that 

Father does not contest any of the statutory grounds for severance. As we 

have recognized, the presence of the conceded statutory grounds for 

severance may also negatively affect the children. Bennigno R. v. Ariz. Dep’t 

of Econ. Sec., 233 Ariz. 345, 350, ¶ 23, 312 P.3d 861, 866 (App. 2013). The 

termination grounds in this case—abandonment, chronic substance abuse, 

length-of-sentence, and nine months’ out-of-home placement—are “serious 

in nature, involving grave misconduct . . . or complete abdication of 

parental responsibilities,” Kent K., 210 Ariz. at 286 n.8, ¶ 35, 110 P.3d at 1020 

n.8, and support a finding that preserving the parent-child relationship 

would harm the children. 

CONCLUSION 

¶23 Because reasonable evidence supports the conclusion that the 

children would both benefit from having Father’s parental rights 

terminated and be harmed by continuing the parent-child relationship, we 

affirm the juvenile court’s best interest finding and order terminating 

Father’s parental rights to the children.