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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN O., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.O., Appellees.

No. 1 CA-JV 19-0353

Appeal from the Superior Court in Maricopa County

No. JD36151

The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

David W. Bell Attorney at Law, Higley

By David W. Bell

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellee Department of Child Safety

FILED 5-7-2020
JOHN O. v. DCS, A.O.

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 John O. (“Father”) appeals the superior court’s order 

terminating his parental rights to minor child, A.O. For the following 

reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On May 4, 2017, A.O. was born to Father and Yvette D.

(“Mother”). Mother and Father have been reported to the Department of 

Child Safety (“DCS”) multiple times for substance abuse issues dating back 

to 2012.

¶3 Father was given temporary custody of A.O. when the child 

was found in the care of Father and Mother’s whereabouts were unknown.1

In August 2018, Father and A.O. resided with A.O.’s paternal grandmother.

Father left A.O. with paternal grandmother and did not return until two 

days later. When Father returned, paternal grandmother asked Father to 

leave because he appeared to be under the influence of some substance, 

purportedly heroin. Father wanted to take A.O. with him, but the 

grandmother refused and called the police. Father eventually left without

A.O. and did not return.

¶4 DCS contacted Father shortly after this incident and he

admitted that he had been using heroin three times per week for the past 

month. He also admitted that in the past he used marijuana and 

unprescribed opiates. DCS filed a dependency petition in September 2018 

because of Father’s continued substance abuse. A.O. was found dependent 

as to Father and DCS eventually placed A.O. with her maternal aunt.

1 The court terminated Mother’s parental rights to A.O. on the basis of 

her history of chronic abuse of dangerous drugs, controlled substances, 

and/or alcohol. Mother is not a party to this appeal.
JOHN O. v. DCS, A.O.

Decision of the Court

3

¶5 DCS offered Father multiple services to help him reunify with 

A.O., including substance abuse testing and treatment, transportation,

supervised visits with parenting aides, and case aides.

¶6 As characterized by the DCS child safety specialist, Father’s 

participation in these services was poor. From November 2018 to March 

2019, Father failed to attend twenty-five scheduled drug tests, and on five 

occasions provided a diluted urine sample or otherwise refused to provide 

a sample. In November 2018, Father tested positive for amphetamine, 

methamphetamine, opiates, morphine, and heroin. At that same time, 

Father refused a urine analysis. About a month later, Father again tested 

positive for amphetamine and methamphetamine. Father then stopped 

testing for about three months. Additionally, Father was required to attend 

substance abuse treatment. Although Father attended some sessions in 

November 2018, his attendance tapered off in December 2018 and he then 

stopped attending for three months.

¶7 In April 2019, the court granted DCS’s request to change the 

case plan from family reunification to termination and adoption. DCS then 

filed a motion to terminate Father’s parental rights on the substance abuse 

ground.

¶8 DCS offered services again to Father but was not able to refer 

Father until late May 2019 because Father was hospitalized for a period of 

time in March 2019, after being attacked by four dogs. While hospitalized,

Father was administered oxycodone. After recovering from his injuries,

Father engaged in services, initially tested negative for substances, and 

started substance abuse treatment. Father also completed two parent aide 

visits. In June 2019, however, Father tested positive for alcohol and did not 

attend scheduled testing in July and August 2019. Father also stopped 

attending substance abuse treatment.

¶9 One week before the termination hearing, Father tested 

positive for methamphetamine. DCS provided testimony that Father’s 

substance abuse was likely to continue for a prolonged period because 

Father completed drug rehabilitation before and relapsed, failed to 

complete two substance abuse treatment referrals, and continued to use 

substances including one week before his parental rights were subject to 

termination. Additionally, DCS provided testimony that qualified family 

members were willing to adopt A.O.

¶10 The superior court terminated Father’s parental rights to A.O. 

pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3) and 
JOHN O. v. DCS, A.O.

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found termination was in A.O’s best interests. Father timely appealed. We 

have jurisdiction pursuant to A.R.S. § 8-235(A) and Rule 103(A) of the 

Arizona Rules of Procedure for the Juvenile Court.

DISCUSSION

¶11 “Parents possess a fundamental liberty interest in the care, 

custody, and management of their children,” but “parental rights are not 

absolute.” Kent. K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). To terminate 

parental rights, the court must find by clear and convincing evidence one 

of the statutory grounds set forth in A.R.S. § 8-533(B), and by a 

preponderance of the evidence that termination is in the child’s best 

interests. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018).

¶12 Father challenges both the superior court’s findings that a 

statutory ground for termination existed and that termination was in A.O.’s 

best interests. “Because the juvenile court is in the best position to weigh 

the evidence and assess witness credibility, we accept the juvenile court’s 

findings of fact if reasonable evidence and inferences support them, and 

will affirm a severance order unless it is clearly erroneous.” Demetrius L. v. 

Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). Accordingly, “[w]e view the facts in a 

light most favorable to affirming the trial court’s findings.” Maricopa Cty. 

Juv. Action No. JS-8490, 179 Ariz. 102, 106 (1994).

I. Statutory Ground for Termination

¶13 Pursuant to A.R.S. § 8-533(B)(3), the court may terminate a 

parent-child relationship under the following circumstances:

[T]he parent is unable to discharge parental responsibilities 

because of . . . a history of chronic abuse of dangerous drugs, 

controlled substances or alcohol and there are reasonable 

grounds to believe that the condition will continue for a 

prolonged indeterminate period.

¶14 Father first asserts there was insufficient evidence that his 

substance abuse interfered with his ability to discharge his parental 

responsibilities.

¶15 Parental responsibilities include the ability to protect and 

make appropriate decisions for one’s child. Raymond F. v. Ariz. Dep’t of 

Econ. Sec., 224 Ariz. 373, 378, ¶¶ 21-22 (App. 2010). It also includes the 

ability to provide basic needs such as food, shelter, education, and medical 
JOHN O. v. DCS, A.O.

Decision of the Court

5

care. Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 185 

(App. 1984).

¶16 Contrary to Father’s assertion, the record shows Father was 

unable to meet his parental responsibilities because of his substance abuse. 

By his own admission, Father “was not present” for A.O. because his 

substance abuse was “taking control of [his] life.” He also stated his use of 

drugs would “interfere with his life, [and] his ability to be a father.” Father 

admitted he abandoned A.O. for two days so he could use drugs. And he 

even attempted to take her from paternal grandmother’s home when he 

was under the influence and had no other place to reside. On another 

occasion, while Mother was hospitalized and unable to care for the child,

Father left A.O.’s brother, also a minor, at the hospital with Mother. In 

short, Father’s substance abuse caused Father to absent himself from 

parenting duties, to be unemployed, and to be unable to provide A.O. with 

stable housing and other basic needs.

¶17 Although Father admits he has a history of substance abuse, 

Father asserts it appears the superior court did not take into account 

Father’s period of sobriety during the case.

¶18 We assume the superior court has considered evidence 

presented before making a decision. Fuentes v. Fuentes, 209 Ariz. 51, 55-56, 

¶ 18 (App. 2004). In fact, the superior court said on the record it considered 

all the evidence presented. The only evidence presented of Father’s alleged 

eight-month sobriety was his own self-serving statement, and that evidence 

is inconsistent with Father’s failed drug tests, including testing positive for 

methamphetamine a week before the termination hearing. See Raymond F., 

224 Ariz. at 379, ¶ 29 (saying a parent’s “temporary abstinence from drugs 

and alcohol does not outweigh [a parent’s] significant history of abuse or [a 

parent’s] consistent inability to abstain during [the] case”). The superior 

court is in the best position to assess witness credibility, and we decline the 

invitation to reweigh the evidence. See Demetrius L., 239 Ariz. at 3, ¶ 9.

¶19 Finally, Father asserts that there was insufficient evidence to 

believe that Father’s inability to parent would continue into the near future. 

The superior court, however, can consider a parent’s “prior substance abuse 

in evaluating whether reasonable grounds existed to conclude [that the 

parent’s] inability to discharge parental responsibilities would continue for 

a prolonged indeterminate period.” Jennifer S. v. Dep’t of Child Safety, 240 

Ariz. 282, 287, ¶ 20 (App. 2016). This evidence includes “the length and 

frequency of [a parent’s] substance abuse, the types of substances abused, 
JOHN O. v. DCS, A.O.

Decision of the Court

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behaviors associated with the substance abuse, prior efforts to maintain 

sobriety, and prior relapses.” Id.

¶20 In this case, the record reflects Father abused various

substances for at least three years. Father admitted to using unprescribed 

opiates for about six months, which resulted in him attending a drug 

rehabilitation program in 2017. Even so, Father relapsed shortly after. Just 

prior to A.O.’s removal, Father was using heroin three times per week for 

an extended period of time. As stated previously, see supra ¶¶ 6-9, during 

the pendency of the case, Father tested positive for amphetamine, 

methamphetamine, opiates, morphine, heroin, and alcohol. The substance 

abuse treatment provider diagnosed Father with severe opioid use 

disorder. The provider observed that Father had consumed opioids in large 

amounts over long periods of time, demonstrating a persistent desire for 

and tolerance of illegal drugs, and had been unable to cut back use or 

eliminate his cravings despite multiple efforts in the past.

¶21 Father’s years of substance abuse of many highly addicting 

drugs, multiple failed attempts to maintain sobriety, multiple relapses—

including one week before the termination hearing—and failure to commit 

to substance abuse treatment when recommended, are reasonable grounds 

to find that Father’s inability to parent would continue for a prolonged 

indefinite period.

II. Best-Interests Determination

¶22 The court must also find the termination of the parent-child 

relationship is in the child’s best interests. A.R.S. § 8-533(B). “The ‘child’s 

interest in stability and security’ must be the court’s primary concern.” 

Alma S., 245 Ariz. at 150, ¶ 12 (citation omitted). “[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.” Id. at ¶ 13. Benefits include 

a child’s prospective adoption and stability in a current placement. 

Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 8 (App. 2016).

¶23 Father acknowledges DCS presented evidence that A.O. was 

adoptable by qualified relatives, including A.O.’s grandmother who 

testified she was willing to adopt A.O. Additionally, A.O.’s needs were 

being met at her current placement.

¶24 Father argues it appears the superior court did not take into 

account Father’s inability to participate in services for the approximately 

two months he was hospitalized, and therefore he should be given 

additional time. As stated above, we presume the superior court 
JOHN O. v. DCS, A.O.

Decision of the Court

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considered the evidence presented. See Fuentes, 209 Ariz. at 55-56, ¶ 18.

Moreover, the superior court stated on the record it considered all the 

evidence. Further, Father had almost one year to rehabilitate and 

participate in services. DCS referred Father before he was hospitalized and 

again after he was hospitalized. Father failed to participate consistently in 

services both times. “[C]hildren should not be forced to wait for their 

parent to grow up.” Raymond F., 224 Ariz. at 378, ¶ 25 (citation omitted).

“Accordingly, a child’s interest in permanency must prevail over a parent’s 

uncertain battle with drugs.” Jennifer S., 240 Ariz. at 287, ¶ 17.

¶25 Father also asserts termination is not in A.O.’s best interests 

because the two have a bond. The superior court considered the bond, but 

such a bond is not dispositive. Dominique M., 240 Ariz. at 98, ¶ 12. Father 

asks us to reweigh the evidence, and we will not do so. Demetrius L., 239 

Ariz. at 3, ¶ 9. Because reasonable evidence supports the finding of best 

interests, the superior court did not err.

CONCLUSION

¶26 For the foregoing reasons, we affirm the termination of 

Father’s parental rights to A.O.