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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NEIL B.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.B.,

Appellees.

No. 1 CA-JV 18-0399

 1 CA-JV 18-0426

 (Consolidated) 

Appeal from the Superior Court in Maricopa County

No. JD24293; JS19329

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley

By Steven Czop

Counsel for Appellant

Arizona Attorney General's Office, Tucson

By Autumn Spritzer

Counsel for Appellee DCS

FILED 5-16-2019
NEIL B. v. DCS, C.B.

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Neil B. ("Father") appeals the superior court's termination of 

his parental rights to his child ("Child"), born in 2012. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2013, the superior court found Child dependent based on

neglect arising from the parents' domestic violence and use of alcohol. 

Father thereafter received services related to substance abuse and domestic 

violence. Father admitted to a psychologist he had a history of abusing 

alcohol. The psychologist diagnosed Father as having "Alcohol Use 

Disorder" and concluded Father remained "at risk for continued substance 

abuse, particularly due to his history of relapse" and that his continued use 

of alcohol placed Child "at risk for neglect and endangerment." 

Nevertheless, based on evidence that Father was participating in services, 

the superior court dismissed the dependency in June 2014.

¶3 The following month, however, Father assaulted Child's 

mother ("Mother") in the presence of Child. When police asked Mother if 

Father had struck her before, she responded, "Only when he is drinking 

does he hit." Police arrested Father after another domestic violence incident 

against Mother in October 2015, and the resulting report again noted Child 

was present and Father had been drinking. The Department of Child Safety

("DCS") then took custody of Child and filed a dependency petition. As in 

2013, the petition alleged Father and Mother neglected Child due to alcohol 

abuse and domestic violence.

¶4 In February 2016, DCS moved to change the case plan to an 

in-home dependency with Mother, and the superior court granted the 

motion. But two months later, Father brandished a meat cleaver as he 

threatened to kill a neighbor of Mother's. Again, Father had been drinking. 

The court then granted a motion by DCS to take Child back into its custody. 

During the second dependency, Father generally did not participate in the 
NEIL B. v. DCS, C.B.

Decision of the Court

3

services DCS offered him. He did, however, participate in drug testing in 

April through October 2016, with mostly negative tests, although he tested

positive for alcohol once in August 2016 and refused to submit tests on 

multiple occasions. Father also received substance-abuse counseling.

¶5 Father was arrested in July 2016 and charged with assaulting 

Mother. According to the police report, he had been drinking and assaulted

Mother because she had "refus[ed] to buy [Father] alcohol." Police arrested 

Father again in October 2016. On that occasion, Father had been drinking 

and attacked and restrained Mother from leaving their home. Ultimately, 

Father pled guilty to kidnapping and aggravated assault. The court 

imposed five years' probation and ordered Father to have no contact with 

Mother.

¶6 Mother, meanwhile, obtained a protective order against 

Father. DCS then moved to dismiss the dependency; according to the 

minute entry, DCS indicated "there is not a current safety risk at this time." 

Finding Mother had successfully engaged in services, the court dismissed 

the dependency and granted her temporary sole custody of Child. Noting 

that "Father's substance abuse continues to be an issue, as well as domestic 

violence," the court granted Father limited supervised parenting time.

¶7 In October 2017, Father was arrested yet again after assaulting 

Mother. Child, who was present at the time, told police Father had thrown 

a vodka bottle at Mother, and a DCS report stated Father was intoxicated 

during the incident. DCS then took custody of Child for a fourth time and 

filed another dependency petition, again alleging Mother and Father were 

unable to parent due to alcohol abuse and domestic violence.

¶8 Soon thereafter, DCS filed a petition to terminate both 

parents' rights. As to Father, the petition sought termination based on, inter 

alia, Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2) and (B)(3) 

(2019), neglect and substance abuse, respectively.1 During a three-day 

hearing, the court heard testimony from Father, Mother, the DCS case 

manager, and Mother's and Child's counselor. Ultimately, the superior 

court terminated Father's rights under both the neglect and substanceabuse grounds.

¶9 Father timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2019), 

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
NEIL B. v. DCS, C.B.

Decision of the Court

4

12-120.21(A)(1) (2019), -2101(A)(1) (2019) and Arizona Rule of Procedure for 

the Juvenile Court 103(A). The superior court also severed Mother's

parental rights, but that portion of the order is not at issue in this appeal.

DISCUSSION

¶10 The right to custody of one's child is fundamental but not 

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

(2000). When DCS seeks termination of a parent-child relationship, it must 

prove, by clear and convincing evidence, the existence of a statutory ground 

under A.R.S. § 8-533(B), Michael J., 196 Ariz. at 249, ¶ 12, and, by a 

preponderance of the evidence, that termination is in the best interests of 

the child, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). The superior 

court is the trier of fact in a termination proceeding, and "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). We view the evidence and reasonable 

inferences drawn from the evidence in the light most favorable to 

sustaining the court's decision and will reverse only if no reasonable 

evidence supports the court's factual findings. Jordan C., 223 Ariz. at 93, ¶ 

18.

¶11 Under § 8-533(B)(3), termination of parental rights may be 

ordered when "the parent is unable to discharge parental responsibilities 

because of . . . a history of chronic abuse of . . . alcohol and there are 

reasonable grounds to believe that the condition will continue for a 

prolonged indeterminate period." Additionally, DCS must show it made 

"reasonable efforts to reunify the family or that such efforts would have 

been futile," Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 

(App. 2005), and that the parent's substance abuse "be proven not to be 

amenable to rehabilitative services," id., ¶ 12, n.3. "Chronic" substance 

abuse is long lasting, but not necessarily continuous. Raymond F. v. Ariz. 

Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Temporary 

abstinence from alcohol does not generally outweigh a parent's "significant 

history of abuse" or "consistent inability to abstain during the case." Jennifer 

S. v. Dep't of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016). Because 

"children should not be forced to wait for their parent to grow up, . . . a 

child's interest in permanency must prevail over a parent's uncertain battle 

with" substance abuse. Id.

¶12 Father does not challenge the superior court's findings that 

DCS made reasonable efforts or that future efforts would be futile. He also 

does not challenge the court's finding that termination was in Child's best 
NEIL B. v. DCS, C.B.

Decision of the Court

5

interests. Instead, Father only contests the court's determination that he has 

a history of abusing alcohol, is unable to discharge his parental 

responsibilities because of his alcohol abuse and will continue abusing 

alcohol for a prolonged indeterminate period.

¶13 Father argues his partially successful drug testing, 

participation in Alcoholics Anonymous, and the superior court's decision 

to return Child to him after the first dependency all show he has not 

historically abused alcohol and will not do so in the future. Ultimately, 

Father's argument is merely a request to reweigh the evidence, which we 

will not do. Jordan C., 223 Ariz. at 93, ¶ 18. The record fully supports the 

superior court's findings. As noted, during a psychological evaluation in 

2013, Father admitted he has a history of abusing alcohol, and, after the 

evaluation, the psychologist diagnosed Father with "Alcohol Use Disorder"

and concluded his continued use of alcohol placed Child at risk. The court 

heard evidence that, over the years since then, Father several times attacked 

or threatened people while he was under the influence of alcohol. Father 

nevertheless testified he does not have a problem with alcohol, he will 

continue to drink, and he only participated in substance-abuse services to 

satisfy DCS so that he could get his son back. This evidence was a sufficient 

basis for the court to find that Father has a history of abusing alcohol and 

that such abuse would continue for a prolonged indeterminate period. See 

Jordan C., 223 Ariz. at 93, ¶ 18.

¶14 Reasonable evidence also supports the court's finding that

Father is unable to discharge his parental responsibilities because of the 

effects his alcohol abuse has had on Child. Child witnessed Father's attack 

on Mother in October 2017, the event that precipitated the third 

dependency. At an April 2018 hearing, moreover, the DCS case manager 

testified that, when DCS removed Child after that incident, she heard Child 

say he knew whiskey was a drug and could turn a person "into a beast."

Furthermore, Child's foster parents have reported Child has made 

comments such as "Daddy is in jail for hitting Mommy, and that Daddy and 

Mommy fight and [Child] ha[s] to stand between them." This evidence, 

along with Father's repeated alcohol-related arrests, reasonably support the 

court's finding that Father's alcohol abuse has created an unsafe and chaotic 

home environment for Child, such that Father is unable to discharge his 

parental duties.

CONCLUSION

¶15 For the reasons stated above, we affirm the superior court's 

order terminating Father's parental rights. Because substantial evidence 
NEIL B. v. DCS, C.B.

Decision of the Court

6

supports the court's decision under A.R.S. § 8-533(B)(3), we need not 

address Father's arguments relating to the neglect ground for severance. 

See Michael J., 196 Ariz. at 251, ¶ 27.