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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KYLE J., Appellant, 

v.

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

No. 1 CA-JV 18-0088 

Appeal from the Superior Court in Mohave County

No. L8015JD201607018 

The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Erika A. Arlington Esq. PC, Flagstaff

By Erika A. Arlington

Counsel for Appellant 

Arizona Attorney General’s Office, Tucson

By Cathleen E. Fuller

Counsel for Appellee Department of Child Safety

FILED 9-20-2018
KYLE J. v. DCS, et al. 

Decision of the Court

2 

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Kyle J. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to his two children. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Patricia J. (“Mother”) are the biological parents of 

T.J., born in April 2010, and J.J., born in September 2012 (the “Children”).

Mother’s biological child C.P. also lived in the family home with Mother, 

Father, and the Children.1 Father, who is 35 years old, has an admitted 

history of abusing methamphetamine since he was 16 years old. The 

Department of Child Safety (“DCS”) previously investigated Mother and 

Father in 2011 after receiving reports the couple was neglecting C.P. and 

T.J., in addition to using and selling drugs. 

¶3 In April 2016, DCS investigated allegations that Mother and 

Father were abusing methamphetamine and marijuana, causing them to 

sleep for inordinate amounts of time, and leaving 12-year-old half-sibling

C.P. to supervise the Children. Father admitted marital problems with 

Mother caused them to fight in the presence of the Children and 

contributed to his relapse in 2016.2 Shortly after the initial investigation, 

Mother left the home and Father asked the Children’s maternal 

grandmother to temporarily care for the Children. In April 2016, Father 

entered a voluntary 90-day agreement with DCS placing the Children in 

 

1 Mother and C.P. are not parties to this appeal. Mother voluntarily 

relinquished her parental rights to all three children.

2 The amount of time Father was clean before this relapse is unknown, 

but Father reported he had refrained from using methamphetamine for up 

to four years in the past.
KYLE J. v. DCS, et al. 

Decision of the Court

3 

maternal grandmother’s care. Mother would irregularly appear between 

May 2016 and December 2017. 

¶4 DCS petitioned for dependency in June 2016, alleging the 

Children were dependent regarding Father due to neglect, a history of 

substance abuse, and a history of domestic violence with Mother in the 

presence of the Children. In July 2016, after Father tested negative for 

substances for three weeks, DCS returned C.P. and the Children to him in 

an in-home dependency. Father was required to call the drug testing line 

daily and test as directed. In mid-July, Father again tested positive for 

methamphetamine and stopped calling into the testing line. DCS moved to 

change the Children’s physical custody to their maternal grandmother and 

the court granted the motion in August 2016.

¶5 Father tested positive for methamphetamine on at least eight 

occasions through September 2016, even while claiming he had not used 

the drug in six months. He eventually completed a 28-day rehabilitation 

program in March 2017, and had not used methamphetamine since January 

31, 2017. After completing the program, Father moved in with his parents 

and began working as a handyman and painter for his parents’ various 

businesses. Father was compliant with DCS programs and regularly visited 

with the Children while they were under their maternal grandmother’s 

care. However, Father continued to use alcohol in his “sobriety.”

¶6 In June 2017, DCS moved to terminate Father’s parental rights 

based on: (1) neglect; (2) a history of chronic substance abuse; (3) mental 

deficiency; and (4) time-in-care. See Ariz. Rev. Stat. (“A.R.S.”) §§ 8-533(B)(3), 

(8)(c). After a two-day hearing, the juvenile court terminated Father’s 

parental rights, finding DCS proved each ground by clear and convincing 

evidence, and termination was in the Children’s best interests. Father 

timely appealed, and we have jurisdiction pursuant to § 8-235(A) and 

Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

¶7 To terminate a parent-child relationship, the juvenile court 

must find at least one statutory ground for severance under § 8-533(B) by 

clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 

(2005). The court must also find severance is in the child’s best interests by 

a preponderance of the evidence. Id. We review the court’s severance 

determination for an abuse of discretion and will affirm unless no 

reasonable evidence supports the court’s findings. Mary Lou C. v. ADES, 207 

Ariz. 43, 47, ¶ 8 (App. 2004). The juvenile court “is in the best position to 
KYLE J. v. DCS, et al. 

Decision of the Court

4 

weigh the evidence, observe the parties, judge the credibility of witnesses, 

and resolve disputed facts.” ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 

2004). 

I. Sufficient Evidence Supports the Juvenile Court’s Order 

Terminating Father’s Parental Rights Based on Chronic Substance 

Abuse.

¶8 Father claims there was insufficient evidence to establish 

chronic substance abuse because at the time of trial he had not tested 

positive for methamphetamine in a year. Therefore, he argues the abuse

was not “continuing.” 

¶9 Under § 8-533(B)(3), a parent’s rights may be terminated if 

“the parent is unable to discharge parental responsibilities because of . . . a 

history of chronic abuse of dangerous drugs . . . and there are reasonable 

grounds to believe that the condition will continue for a prolonged 

indeterminate period.” Chronic substance abuse is long-lasting, but “need 

not be constant.” Raymond F. v. ADES, 224 Ariz. 373, 377, ¶ 16 (App. 2010). 

A child’s interest in permanency must prevail over a parent’s uncertain 

battle with drugs. Id. at 379, ¶ 29. 

¶10 Father's history of drug abuse indicates an addiction that has 

persisted over a long period, and one that is lingering. Father’s battle with 

methamphetamine had continued for nearly twenty years at the time of the 

hearing. Although he had not used methamphetamine for 12 months, he 

had relapsed after extended periods of sobriety in the past. “Father’s 

temporary abstinence from drugs . . . does not outweigh his significant 

history of abuse or his constant inability to abstain.” Raymond F., 224 Ariz. 

at 379, ¶ 29; see also Jennifer S. v. DCS, 240 Ariz. 282, 288, ¶ 25 (App. 2016) 

(mother’s abstinence from methamphetamine for months prior to hearing 

does not outweigh significant history of drug abuse or her demonstrated 

inability to remain sober). Moreover, children should not be forced to wait 

for their parent to overcome an addiction. Jennifer S., 240 Ariz. at 287, ¶ 17; 

Raymond F., 224 Ariz. at 378, ¶ 25. Accordingly, the court did not err by 

concluding that Father suffered from chronic substance abuse.

¶11 Having determined that Father suffers from chronic drug use, 

we next look to determine if that use has affected Father’s ability to parent. 

Raymond F., 224 Ariz. at 378–79, ¶ 19. Termination under § 8-533(B)(3) does 

not require a finding that the parent is unable to discharge any parental 

responsibilities. Instead, a trial judge has flexibility in considering the 

unique circumstances of each case to determine the parent's ability to 
KYLE J. v. DCS, et al. 

Decision of the Court

5 

discharge his or her parental responsibilities. Maricopa County Juv. Action 

No. JS-5894, 145 Ariz. 405, 408–09 (App. 1985). 

¶12 C.P. told DCS Mother and Father “like to make hookahs and 

smoke tobacco out of them.” He related that Mother and Father were “tired 

and stressed out so they fight a lot.” C.P. reported that during one incident, 

Father had thrown and broken a glass. When C.P. cleaned up the glass, he 

cut the bottom of his foot. C.P. further reported the family did not have 

enough food and he often went without food so that his siblings would 

have some. C.P. also stated his parents were behind closed doors often, 

leaving him to provide supervision and basic care for his siblings. C.P. felt 

that he could not leave his younger siblings alone with Mother and Father. 

When DCS interviewed T.J., she also responded that she had seen Mother 

and Father “smoke hookah with a lighter.” She claimed that Father liked to 

sleep and that she was unable to wake him when he slept.

¶13 Father maintains he has improved his parenting skills and the 

above described conditions no longer apply as he is living with his parents 

and he has been drug-free for a significant period. The evidence does 

support Father’s contention, but it does not change the fact that abusing 

drugs has affected his ability to parent. Father has a history of abusing 

methamphetamine to cope with stress. He stated that the most recent 

relapse that led to the Children’s initial removal was triggered by the 

increased stress in his marriage. While Father’s abstinence from 

methamphetamine is commendable, it is in the context of being in a less 

stressful environment as the result of his parents’ supporting him 

financially by providing him with employment and a home. When the 

Children were returned only to Father’s care in July 2016, he began using 

methamphetamine again. Accordingly, the court did not abuse its 

discretion by finding that Father was not equipped to handle the stress of 

raising two children as a single parent.

¶14 Father also argues the court’s reliance on his continued 

alcohol use was error as it did not show a prolonged abuse of alcohol. While

the mere use of alcohol may not be sufficient to meet the statutory 

requirement for severance, Father’s continued alcohol use demonstrated 

that he failed to understand the meaning of “sobriety” and was not taking 

the necessary steps to control his substance abuse issues long-term.

¶15 Finally, we must determine if there is sufficient evidence to 

support the court’s determination that there are reasonable grounds to 

believe that the condition will continue for a prolonged indeterminate 

period. Father submitted to a psychological evaluation with Dr. James Thal. 
KYLE J. v. DCS, et al. 

Decision of the Court

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Father reported he began using methamphetamine in high school, stating 

that it “mellow[ed] [him] out.” Father reported that he “love[d]” 

methamphetamine and that it motivated him, but admitted it was a 

“horrible drug.” He further described himself as addicted to alcohol and 

stated that he was a “lush” but he did not “need it all the time.” He reported 

his relapse was due to the stress he was facing with “[Mother] leaving him 

and the tasks assigned to him by DCS.”

¶16 On intelligence testing, Father scored in the intellectually 

disabled range. Dr. Thal opined that Father’s understanding of the 

demands of caring for two children seemed marginal at best. Dr. Thal 

diagnosed Father with an intellectual disability, adjustment disorder with 

depressed mood, attention deficit hyperactivity disorder, 

methamphetamine-use disorder, and alcohol-use disorder. Although Dr. 

Thal opined that the substance-use disorders were in remission, he 

concluded that Father was at a very high risk for relapse, due to his “very 

marginal” understanding of recovery and leading a sober lifestyle, and the 

fact that he had “repeatedly expressed his affinity for drugs and alcohol, 

while maintaining that he was using in the context of excessive feelings of 

pressure and stress.” He further concluded that “with two young children 

in his care and his marginal skills, [Father’s] family life could be anything 

but stress-free.”

¶17 Father also submitted to a neuropsychological evaluation 

with Dr. Stephen Gill in April 2017. Father informed Dr. Gill that he had 

been sober from methamphetamine for one hundred days, but he also 

admitted that he was still drinking alcohol. Dr. Gill diagnosed Father with 

an intellectual disability, methamphetamine-abuse disorder, alcohol-abuse 

disorder, attention deficit hyperactivity disorder, depressive disorder, 

generalized anxiety disorder, and dependent personality traits. Dr. Gill

testified that continued alcohol use lessens inhibitions and increases the 

potential for Father to relapse with his drug of choice, methamphetamine.

He opined that Father would need to commit to a more comprehensive 

drug treatment program to reduce the likelihood of a relapse. Dr. Gill 

opined that given Father’s neurodevelopmental limitations, he would be 

unlikely to be able to demonstrate minimally adequate parenting skills in 

the foreseeable future. He concluded Father would not be competent “in 

learning new skills to minimally parent his children and to independently 

run a minimally safe and hygienic household.”

¶18 Given Father’s history of substance abuse, including his 

history of relapsing after periods of sobriety and the experts’ opinions, there 

was sufficient evidence for the court to conclude that Father’s substance 
KYLE J. v. DCS, et al. 

Decision of the Court

7 

abuse is continuing, prevents him from discharging his parental 

responsibilities, and would do so for an indeterminate period.3

II. The Juvenile Court Did Not Err by Finding Termination of 

Father’s Parental Rights was in the Children’s Best Interests. 

¶19 Once the court finds a parent unfit under at least one statutory 

ground for termination, “the interests of the parent and child diverge,” and 

the court proceeds to balance the unfit parent’s “interest in the care and 

custody of his or her child . . . against the independent and often adverse 

interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286, 

¶ 35. “[A] determination of the child’s best interest must include a finding 

as to how the child would benefit from a severance or be harmed by the 

continuation of the relationship.” Maricopa County Juv. Action No. JS-500274, 

167 Ariz. 1, 5 (1990). Our supreme court has stated “[t]he best interest 

requirement may be met if . . . the petitioner proves that a current adoptive 

plan exists for the child, or even that the child is adoptable.” Demetrius L. v. 

Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12 (2016) (alterations in original) (quoting 

Mary Lou C., 207 Ariz. at 50, ¶ 19). 

¶20 Father contends DCS failed to show that the Children would 

be harmed if returned to Father to live with him in his parents’ home. A 

finding that severance is in the best interests of the Children does not 

require that the court find that the Children will be harmed from the 

continued relationship with the parent, a finding that severance will benefit 

the Children is sufficient. See JS-500274, 167 Ariz. at 6. (“[P]etitioner must 

prove an affirmative benefit to the child resulting from termination. For 

example, petitioner might prove that there is a current adoptive plan for the 

child or that the child will be freed from an abusive parent.”) (citation 

omitted).

¶21 Reasonable evidence in the record supports the juvenile 

court’s finding that severance was in the Children’s best interests. The court 

found that the Children were “in a placement that [was] willing to adopt 

 

3 Because we find the juvenile court had sufficient evidence to 

terminate Father’s parental rights based on the continuing substance abuse 

ground, we need not consider whether sufficient evidence supports 

termination on other grounds. See Crystal E. v. DCS, 241 Ariz. 576, 577–78, 

¶ 5 (App. 2017) (this court can affirm a severance on any one of the grounds 

found by the superior court).
KYLE J. v. DCS, et al. 

Decision of the Court

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them and that termination would free them up for adoption and provide 

them permanency in connection with this case.” 

CONCLUSION

¶22 For the foregoing reasons, we affirm the juvenile court’s order 

terminating Father’s parental rights to T.J. and J.J.