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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

NEVILLE T., Appellant
,

v.

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

.
No. 1 CA

- JV 17

- 0234

Appeal from the Superior Court in Mohave County

No. B8015JD201404047 B8015JD201404046 The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL
Mohave County Legal Defender's Office, Kingman By Eric Devany Counsel for Appellant

Arizona Attorney General ' s Office, Mesa By Ashlee N. Hoffman n Counsel for Appellee DCS FILED 12-14-2017NEVILLE T. v. DCS, et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N , Judge:

¶1 Neville T. ( " Father " ) appeals the superior court ' s order terminating his parental rights

. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father is the parent of the four children at issue in these consolidated cases , the oldest of whom was born in 2003 and the youngest of whom was born in 2015

. 1 For most of the pendency of this case, Father lived with his girlfriend, who is the mother of three of the children

. The superior court also terminated her parental rights. Only Father is a party to this appeal.

¶3 In mid

- J uly 2014, the Department of Chil d Safety (" DCS ") received a report that Father had left his eleven

- year

- old daughter to care for her sixteen

- year

- old brother, who is autistic , and her one

- year

- old brother while Father was at work. At about the same time, DCS also received a report following the birth of Father's second daughter that Father's girlfriend, the infant ' s mother
, was unable to care for her , and that Father did not visit the baby in the hospital. The DCS case manager who visited the home in response to the report found it had electricity in only

one room, was very hot , was in fested with cockroaches, and was in disarray with a very unpleasant odor

. ¶4 DCS took all the c hildren into care and filed dependency petitions against Father alleging neglect based on domestic violence, substance abuse, failure to provide adequate housing and failure to provide

1 Th is court views the evidence in a light most favorable to sustaini ng the superior court ' s findings. See Manuel M. v. Ariz. Dep ' t of Econ. Sec

. , 218 Ariz. 205, 207, ¶ 2 (App. 2008).NEVILLE T. v. DCS, et al. Decision of the Court

3 adequate supervision

. 2 At the outset of the proceedings
, DCS offered Father fa mily reunification services and referrals for substance

- abuse assessment, random urinalysis testing, counseling, parenting classes, parent

- aide services and transpor tation to out

- of

- town services. DCS also planned to provide in

- home services to Father once he successfully completed the other services. B y December 2014, however, Father was not able or willing to engage in services , saying he preferred to wait to fully engage in services if and when ordered to after a find ing of dependency by the court.

¶5 At the April 2015 dependency hearing , Father denied the allegations but submit ted the issue of dependency to the court. In July
, DCS

re

- referred Father for substance

- abuse assessment, urinalysis testing, parent

- aide services and transportatio n

. ¶6 Meanwhile, Father's girlfriend gave birth to another child in August 201 5, and DCS filed a supplemental dependency petition, alleging neglect based on Father ' s two open dependency cases and failure to protect the children from his girlfriend ' s substance abuse. Specifically, DCS alleged Father had not completed any of his case plan goals and continued to fail to show appropriate behavioral changes and parenting skills. By November 2015, Father had submitted clean drug screens and had completed parenting classes
, but failed to engage in individual counseling and domestic violence classes. Fat her was unemployed
, and DCS had safety concerns with his residence , primarily involving his girlfriend, that rendered it in appropriate for the c hildren.

¶7 In December 2015, the superior court found Father's oldest daughter and two of her younger siblings dep endent as to Father , and adopted a case plan of family reunification

. Th e court found the youngest child dependent the following month.

¶8 At a review hearing in June 2016
, counsel for DCS noted Father was doing well ; however
, his girlfriend was not engaging in services and had been arrested on domestic violence charges. According to the DCS lawyer, Father and the girlfriend were living together but claimed they

were no longer romantically involved and were merely roommates.

¶9 T h ree months later, in September 2016, DCS remained concerned with Father ' s ability to safely parent the c hildren due to his

2 The oldest son tur ned 18 during these proceedings and was not named in the severance order the court ultimately entered.NEVILLE T. v. DCS, et al. Decision of the Court

4 continued relationship with his girlfriend and his lack of social support. The superior court ordered the case plan s changed to seve rance and adoption
, and DCS moved to terminate Fa ther ' s parental rights based on several grounds, i ncluding out

- of

- home placement.

¶10 In detailed orders following a February 2017 severance hearing , the superior court granted the motion to sever based, inter alia
, on its finding that DCS proved
, pursuant to Arizona Revised Statutes ( " A.R.S. " ) sect ion 8

- 533(B)(8)(c ) (2017)
, that the children had been in an out

of

- home placement for 15 months or longer
, that Father had been unable to remedy the circumstances tha t caused the placement and there was a substantial likelihood that he would not be capable of exercising proper and effective parental care and control in the near future. 3

¶11 Father filed timely notice s of appeal. We have jurisdiction pursuant to A.R.S. § 8

- 235(A) (2017) and Arizona Rule of Pr ocedure for the Juvenile Court 103(A).

DISCUSSION

¶12 On appeal, Father argues the evidence did not support the superior court ' s finding s that he been unable to remedy the circumstances that caused the children to be taken into care and that there was a substantial likelihood that he would not be capable of exercising proper and effective parental care and control in the near future.

¶13 " Parents posses s a fundamenta l liberty interest in the care, custody, and management of their children. " Kent K. v. Bobby M ., 210 Ariz. 279, 284, ¶ 24 (2005). Even fundamental rights are not absolute, however. Id

. 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 child ' s best interests. See A.R.S. §§ 8

- 5 33(B),

- 537(B) (2017) ; Kent K ., 210 Ariz. at 281

- 82, 288, ¶¶ 7, 41. Because the superior court " is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts, " this court will affirm an order terminating parental rights if reasonable evidence supports it. Jordan C. v. Ariz. Dep't of Econ. Sec. , 223 Ariz. 86, 93, ¶ 18 (App. 2009).

¶14 The superior court severed Father's rights and the girlfriend's rights to the children in the same minute entry order. The court noted that

3 Absent material revisions after the relevant dates, we cite the current version of statutes and rules unless otherwise indicated.NEVILLE T. v. DCS, et al. Decision of the Court

5 the girlfriend had tested positive for methamphetamine early in the dependency, and, although she was drug

- free in January and February 2016, she stopped testing after that and was inconsistent with parent

- aide services. Although the girlfriend enrolled i n an inpatient drug program in August 2016, she left the program early and against advice about 10 days later. The court also found the girlfriend was convicted of disorderly conduct/domestic violence in November 2013 and assault/domestic violence and dis orderly conduct/domestic violence in June 2016. As for Father, t he court found that although he completed his case plan of services, he continued to maintain a relationship with his girlfriend, whose pattern of drug use and domestic viol ence put the child ren at risk.

¶15 At the severance hearing, Father did not dispute that his girlfriend had a history of substance abuse and testified he believed she was continuing to abuse drugs even at the time of the hearing

. Nevertheless, Father testified that she was not a danger to the children. Father testified that the girlfriend continued to live with him until October 2016, four months before the severance hearing, when he drove her to Los Angeles. He testified that the girlfriend returned to Arizona in December

. Although Father denied he continued to have a relationship with the girlfriend and claimed he would not take her back if she returned to his residence, he admitted he received three or four telephone calls a week from her. The DCS case manager testified D CS received reports from Father's family that the girlfriend was present in Father ' s home in December. Although Father denied allowing the girlfriend into his home then, he conceded he brought the girlfriend to visits with the children in December.

¶16 The ca se manager reiterated her concern for the stability of Father's home due to the girlfriend ' s history of domestic violence , and her

concern that Father would not protect the children from domestic violence from the girlfriend, who the case manager testified "has a tendency to show up" in Father's home

. T he case manager testified DCS remained concerned the girlfriend was not out of the home permanently and had grave concerns regarding her ongoing contact with Father

. But for the girlfriend ' s presence in his home, Father would have transitioned to unsupervised visits ; in fact, DCS considered transitioning one of the children back to Father ' s care in early 2016, but did not move to do so because the girlfriend continued to be present in the home.

¶17 The DCS ca se manager also testified that although Father was receptive to suggestions, DCS had ongoing concerns regarding Father ' s ability to appropriately care for the children. Father brought snacks to his visits with the children, but he repeatedly provided snac ks that causedNEVILLE T. v. DCS, et al. Decision of the Court

6 them stomach issues; he also was slow to change dirty diapers during visits. Further, the case manager testified she was concerned that Father struggled during visits to control the children so that they were safe ; the case manager also sai d she concerned that Father would be unable to meet the children's daily basic needs.

¶18 The superior court found that although Father participated in a number of services, " [ p ] articipation does not equate to progress. " T he court found Father failed to dem onstrate he was able to safely and appropriately parent the chil dren and concluded Father was not credible when he testified he would not allow the girlfriend back into his home. We defer to the court ' s credibility determinations, and we will not reweigh the evidence on appeal

. See Mary Lou C. v. Ariz. Dep't of Econ. Sec. , 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep't of Econ. Sec.
, 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶19 The record contains reasonable evidence to support the superior court's fi ndings and conclusions. The children have been i n out

of

- home care for years. In the period preceding severance, Father failed to appreciate and respond to DCS ' s concerns regarding his relationship with the girlfriend , who pose d a safety risk to the children due to her substance abuse an d history of domestic violence.

¶20 Finally, although Father does not challenge the superior
court ' s fin ding that severance was in the c hildren ' s best interests, the record supports that finding. See Maricopa County Juv. Action No. JS

– 500274 , 167 Ariz. 1, 5 (1990). The record supports the court ' s finding that termination of Father ' s rights would further the plan to provide the c hildren with permanency and stability. See Ariz. Dep't of Econ. Sec. v. Oscar O. , 209 Ariz. 332, 334, ¶ 6 (App. 2004). The c hildren are doing well in foster placements that are meeting all their needs , and the c hildren are adoptable. See Mary Lou C. , 207 Ariz. at 50, ¶ 19; Audra T. v. Ariz. Dep't of Econ. Sec

. , 194 Ariz. 376, 377, ¶ 5 (App. 1998)

.NEVILLE T. v. DCS, et al. Decision of the Court

7 CONCLUSION

¶21 For the reasons stated above, we affirm the order severing Father 's parental rights.