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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD M., Appellant,

v.

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

No. 1 CA-JV 18-0395

Appeal from the Superior Court in Maricopa County

No. JD33675

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix

By Thomas A. Vierling

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Toni M. Valadez

Counsel for Appellee Department of Child Safety

FILED 5-2-2019
RICHARD M. v. DCS, T.M.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.

W I N T H R O P, Judge:

¶1 Richard Patrick McCann, II (“Father”) appeals the juvenile 

court’s severance of his parental rights to his infant child, T.M. Father 

challenges only the court’s best-interests findings. Finding no error, we 

affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At the time of her birth in September 2016, T.M. tested 

positive for methamphetamine, amphetamine, and opioids. The 

Department of Child Safety (“DCS”) initiated an investigation of T.M.’s 

parents. Upon submitting to urinalysis, Father tested positive for 

methamphetamine; accordingly, DCS took temporary custody of T.M.

upon the newborn’s release from the hospital.

¶3 DCS initiated a dependency case and offered Father several 

services in order to help him regain permanent custody of T.M. Over the 

following year, Father tested positive for methamphetamine use multiple 

times, he missed several ordered urinalysis tests, and he closed out 

unsuccessfully from substance abuse treatment on four separate occasions 

and from parent-aide services once. Father’s failure to complete any 

services and repetitive positive urinalysis tests resulted in DCS again 

temporarily removing T.M. from the home in November 2016, in January 

2017, and for the last time in February 2017, at which point T.M. was placed 

in foster care.

¶4 Thereafter, Father violated his terms of probation from a 2013 

conviction for possession or use of a dangerous drug. As a result, Father 

was sentenced in October 2017 to serve two years’ imprisonment at the 

Arizona Department of Corrections, where he remained as of the filing date

of this appeal.

¶5 A contested severance hearing was set for August 22, 2018. 

The following month, the juvenile court ordered that Father’s parental 
RICHARD M. v. DCS, T.M.

Decision of the Court

3

rights to T.M. be severed.1 The juvenile court found that DCS proved by 

clear and convincing evidence that Father was unable to discharge his 

parental duties because of his history of chronic drug abuse, Ariz. Rev. Stat. 

(“A.R.S.”) § 8-533(B)(3), despite DCS’ reasonable efforts to provide 

appropriate rehabilitative services; and that T.M. had resided in an 

out-of-home placement for fifteen months or greater, that Father was 

unable to remedy the circumstances leading to the placement, and that it 

was substantially unlikely that he would be able to properly and effectively 

parent T.M. in the near future, id. at (B)(8)(c). The court further found by a 

preponderance of the evidence that severance of Father’s parental rights 

was in T.M.’s best interests. Id. at (B).

¶6 Father timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235, 

12-120.21(A)(1), and -2101(A)(1).

ANALYSIS

¶7 Father challenges only the juvenile court’s best-interests 

findings. In his opening brief, Father argues that the court failed to “explain 

sufficiently how maintaining Father’s parental rights would be a detriment 

to the child currently or in the future.”2

¶8 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 

(App. 2009). Accordingly, absent clear error, we accept the juvenile court’s 

findings. Maricopa Cty. Juvenile Action No. JS-4374, 137 Ariz. 19, 21 (App. 

1983).

 

1 The court also severed the rights of T.M.’s mother. The mother’s 

attorney filed an affidavit avowing they had “reviewed the entire record on 

appeal and [found] no non-frivolous issue to raise.” Ariz. R.P. Juv. Ct. 

106(G).

2 This argument is wholly at odds with the previous paragraph in 

Father’s opening brief, where he concedes that the juvenile court’s order 

“addressed benefits to [T.M.] from a termination such as a plan for 

adoption” and “addressed whether maintaining the parent-child 

relationship would be detrimental to [T.M.]”
RICHARD M. v. DCS, T.M.

Decision of the Court

4

¶9 In addition to finding adequate statutory grounds for 

severance of parental rights, the juvenile court “shall also consider the best 

interests of the child.” A.R.S. § 8-533(B). “[T]ermination is in the child’s 

best interests 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, ¶ 13 (2018) (emphasis added) (citation omitted). The 

court must look to the totality of the circumstances in making its 

determination. Id. at 150-51, ¶ 13 (citation omitted). The best-interests test 

is notably disjunctive; therefore, even if Father’s argument was true—that 

the court inadequately explained how severance would be detrimental to 

T.M.—the court’s explicit determination that T.M. would benefit from 

severance of Father’s rights would nevertheless be sufficient.

¶10 Here, the juvenile court addressed both benefit and detriment 

in its order, finding:

Termination of the relationship [with Father] would benefit 

[T.M.] because it would further the plan of adoption, which 

would provide [T.M.] with permanency and stability. 

Continuation of the parent-child relationship would also be 

detrimental to [T.M.] because it would delay permanency, 

requiring [T.M.] to linger in care for an indeterminate period 

since [T.M.] does not have parents who are able to care for 

her.

The court further identified T.M.’s adoptability, and specifically noted the 

existence of paternal relatives in Washington state with whom DCS 

intended to place T.M., and about whom “[p]reliminary reports are that 

[such placement] is approved.” Even absent successful placement with 

T.M.’s paternal relatives, the DCS case manager testified that T.M.’s current 

foster placement is willing to adopt.

¶11 The court’s order further reflects that, in considering the 

totality of the circumstances, the court also weighed:

• Father’s long history of abusing methamphetamine, 

heroin, and opiates;

• Father’s several prior criminal charges, each of which 

was drug-related;

• Father’s violation of the terms of his probation which 

led to his current term of incarceration;
RICHARD M. v. DCS, T.M.

Decision of the Court

5

• Father’s failure to complete substance abuse treatment 

each of the four times he was referred by DCS between 

September 2016 and August 2017;

• Father’s repeated failure to comply with urinalysis 

testing;

• Father’s failure to participate in or achieve the 

objectives of parent-aide services resulting in his 

unsuccessful discharge; and

• As the cumulative result of all of this, Father’s inability 

“to discharge parental responsibilities.”

¶12 In light of these factors, we hold that the juvenile court

properly addressed the best interests of T.M. As importantly, the record 

more than adequately supports the court’s best-interests finding.

CONCLUSION

¶13 Finding no error, we affirm the decision of the juvenile court.