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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASON B., 

Appellant, 

 

v.

 

DEPARTMENT OF CHILD SAFETY, E.B., M.B.,

Appellees.

No. 1 CA-JV 16-0305

Appeal from the Superior Court in Maricopa County

No. JD27040

The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

Arizona Attorney General's Office, Tucson

By Laura J. Huff

Counsel for Appellee DCS
JASON B. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Margaret H. Downie and Judge James P. Beene joined.

J O H N S E N, Judge:

¶1 Jason B. ("Father") appeals the superior court's order 

terminating his parental rights to his two children. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Leslie B. ("Mother") are the biological parents of 

E.B., born in March 2013, and M.B., born in March 2014. In September 2013, 

when E.B. was five months old, the Department of Child Safety ("DCS") 

took her into custody based on evidence that Father and Mother were 

abusing substances and were not providing her with a safe and stable home 

environment, and Father was engaging in criminal activity. The following 

month, Father was arrested and charged with identity theft and forgery. In 

February 2014, Father was sentenced to five years' incarceration after 

pleading guilty to both charges. While Father was in custody, Mother gave 

birth to M.B., and E.B. was returned to her care. Several months later, 

Mother tested positive for methamphetamine, and DCS removed both

children.1

¶3 On a motion by DCS and after a contested hearing in June 

2016, the superior court terminated Father's parental rights based on 

Father's incarceration and the children's out-of-home placement for 15 

months or longer, pursuant to Arizona Revised Statutes ("A.R.S.") sections 

8-533(B)(4), (B)(8)(c) (2017), respectively.2 The court found that Father "has 

not completed his substance abuse treatment, cannot provide a stable home 

for his children and his criminal issues remain." Father timely appealed. 

We have jurisdiction pursuant to Article 6, Section 9, of the Arizona 

Constitution, and A.R.S. §§ 8-235(A) (2017), 12-2101(A)(1) (2017) and 

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

 

1 Mother's rights have been terminated and are not at issue here.

2 Absent material revision after the relevant date, we cite a statute's 

current version.
JASON B. v. DCS, et al.

Decision of the Court

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DISCUSSION

¶4 The right to custody of one's children is fundamental, but not 

absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 

(2000). The superior court may terminate a parent's rights upon clear and 

convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B) and 

upon a finding by a preponderance of the evidence that termination is in 

the best interests of the child. Michael J., 196 Ariz. at 249, ¶ 12. We review 

the superior court's termination order for an abuse of discretion; we will 

affirm the order unless its factual findings are clearly erroneous, "that is, 

unless there is no reasonable evidence to support them." Audra T. v. Ariz. 

Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998).

¶5 Under A.R.S. § 8-533(B)(8)(c), a parent's rights may be 

terminated upon a finding that (1) the child has been in out-of-home 

placement for 15 months or longer; (2) the agency has made diligent efforts

to provide appropriate reunification services; (3) the parent is unable to 

remedy the circumstances that caused the placement; and (4) there is a 

substantial likelihood that the parent will not be capable of exercising 

proper and effective parental care and control in the near future. A.R.S. § 

8-533(B)(8)(c). In determining whether the parent has been able to remedy 

the circumstances causing placement, we consider the circumstances 

existing at the time of the severance rather than at the time of the initial 

dependency petition. Maricopa County Juv. Action No. JS-8441, 175 Ariz. 463, 

468 (App. 1993).

¶6 Father does not dispute that the children have been in 

placement for longer than 15 months or that DCS made diligent efforts to 

provide appropriate reunification services. Nor does Father dispute the 

court's best-interest finding. 

¶7 Reasonable evidence supports the superior court's findings

that Father is unable to remedy the circumstances that caused the 

placement and that he will not be able to exercise proper and effective 

parental care and control in the near future. At trial, Father testified that he 

remained incarcerated and has substance abuse issues. A DCS case 

manager testified that Father will not be able to maintain a normal parentchild relationship with the children "because he won't be able to provide for 

the kids' basic needs, mental, educational, physical, as well as establish and 

maintain a bond," and neither parent has proved to be a "permanent, 

consistent, stable caregiver." The case manager explained that when Father 

asked for visits with his children, DCS consulted a psychologist to 

determine whether visitation would be appropriate. The psychologist 
JASON B. v. DCS, et al.

Decision of the Court

4

recommended the children not visit Father while he is incarcerated, because 

prison visits cause "stress and anxiety to the younger children," especially 

if "there's already not a bond" between the children and the person they are 

visiting.

¶8 Father argues he has shown he can care for his children 

because he has participated in services while in prison, has a paying job in 

prison, and has tried to maintain contact with his children while 

incarcerated. He testified he has completed as many classes as he could in 

prison to better himself. He testified he earns approximately $600 each 

month–enough money to provide housing for the children. He testified he 

has not sent any of his earnings for the support of the children because he 

has not been approved to send them money. Despite Father's reported 

desire to support and parent his children, sufficient evidence supports the

court's finding that he is currently unable to do so, and will not be able to 

in the near future.

¶9 Because the superior court did not abuse its discretion in 

severing Father's parental rights based on 15 months' out-of-home 

placement, we need not consider whether the superior court's findings 

justified severance based on the length of Father's incarceration, pursuant 

to A.R.S. § 8-533(B)(4). See Michael J., 196 Ariz. at 251, ¶ 27.

CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court's order 

terminating Father's parental rights.