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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            DARREN G., Appellant,

                                        v.

        DEPARTMENT OF CHILD SAFETY, S.G., L.G., Appellees.

                             No. 1 CA-JV 16-0078
                               FILED 1-10-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD22346
               The Honorable Arthur T. Anderson, Judge

                                  AFFIRMED


                                   COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee DCS
                         DARREN G. v. DCS, et al.
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.


K E S S L E R, Judge:

¶1            Darren G. (“Father”) appeals the juvenile court’s order
terminating his parental rights to L.G. and S.G. (collectively “the children”).
For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           The children came into the Department of Child Safety’s
(“DCS”) care in May 2014 when the mother of the children, Stephanie G.
(“Mother”) was arrested for shoplifting and possession of a dangerous
drug.1 While incarcerated, Mother left the children with Father, who was
only allowed supervised visitation due to a prior court order. The children
were found dependent as to Father on June 12, 2014, and dependent as to
Mother on August 8, 2014.

¶3             The children had previously been found dependent in 2012
after L.G. overdosed on medication. Both Mother and Father failed to get
medical attention for L.G. until she became unresponsive and began
frothing at the mouth. The parents received reunification services and the
children were returned to Mother in February 2014. However, Father was
only allowed supervised visitation with the children following the
dependency. Additionally, the family had previous DCS reports going as
far back as 2007, although none of those had led to a dependency
proceeding. The reports included descriptions of the home as being filthy
and having dog feces in the hallway, S.G. having bruises on his back from
Father’s hitting him, Mother violently shaking L.G., and a second incident
where L.G. overdosed on Mother’s pills.

¶4            After the children were found dependent, DCS offered Father
reunification services including a psychological evaluation, drug testing


1       Although Mother also appealed the termination of her parental
rights, her appeal was dismissed August 4, 2016, pursuant to Arizona Rule
of Procedure for the Juvenile Court 106(G)(1).


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                        DARREN G. v. DCS, et al.
                         Decision of the Court

through TERROS, counseling, and a parent-aide. Although Father
participated in counseling and parent-aide services, he did not fully
participate in substance abuse testing. Father repeatedly failed to test and
failed to provide DCS with a current medical marijuana card or medical
reports showing a need for the medical marijuana.2 Consequently, he was
closed out of TERROS twice.

¶5           Additionally, the DCS case manager testified about multiple
concerns with Father during supervised visits with the children. The
parent-aide reported on more than one occasion the home smelled of
marijuana and Father appeared under the influence. Father also fell asleep
during his supervised visits on multiple occasions and had liquor and
marijuana where the children could access it.

¶6            In December 2015, DCS moved for termination of parental
rights as to both Mother and Father. The grounds alleged against Father
were that he was unable to discharge parental responsibilities because of a
history of chronic abuse of dangerous drugs, controlled substances, and/or
alcohol and that reasonable grounds existed to believe that the condition
would continue for a prolonged indeterminate period pursuant to Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(3) (2016).3 Father failed to
appear for the initial severance hearing and the juvenile court found no
good cause for the failure to appear and held that Father therefore waived
his right to contest the allegations against him. Father appeared at the
contested severance hearing and was allowed to cross-examine witnesses
as well as argue that severance was not in the children’s best interest.

¶7            In February 2016, the juvenile court found DCS had proved
its allegations against Father and terminated his parental rights to the
children. Father timely appealed. We have jurisdiction pursuant to A.R.S.
§§ 8-235(A) (2016), 12-120.21(A)(1) (2016), and 12-2101(A)(1) (2016).

                                 DISCUSSION

¶8          A parent’s right to custody and control of his own child is
fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute,


2     When Father had a valid medical marijuana card is unclear, but the
DCS case manager testified Father’s card had expired by the time of the
severance hearing.

3      We cite to the current version of statutes unless changes material to
this decision have occurred.


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                          DARREN G. v. DCS, et al.
                           Decision of the Court

Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000).
To justify severance of a parental relationship, the State must prove by clear
and convincing evidence one of the statutory grounds in A.R.S. § 8-533(B).
Michael J., at 249, ¶ 12. The State must also prove by a preponderance of the
evidence that severance of the parent-child relationship is in the best
interest of the child. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).

¶9             Because the juvenile court is in the best position to weigh the
evidence and judge credibility, “we will accept the juvenile court’s findings
of fact unless no reasonable evidence supports those findings, and we will
affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh
the evidence, but “look only to determine if there is evidence to sustain the
court’s ruling,” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004) and reverse only if no reasonable evidence to support the ruling
exists, Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376, ¶ 13 (App.
2010).

¶10           Father argues the juvenile court erred in finding that his
marijuana use was improper because his custody rights were protected
under the Arizona Medical Marijuana Act (“AMMA”), A.R.S. §§ 36-2801 to
-2819 (2014 and Supp. 2015). Additionally, Father argues that the court
erred in finding that he was unable to discharge his parental responsibilities
due to his drug use.

¶11           We disagree. A.R.S. § 36-2813(D) (2016) states:

       No person may be denied custody of or visitation or
       parenting time with a minor, and there is no presumption of
       neglect or child endangerment for conduct allowed under this
       chapter, unless the person’s behavior creates an unreasonable
       danger to the safety of the minor as established by clear and
       convincing evidence.

We assume without deciding that A.R.S. § 36-2813(D) applies to parental
severance cases in which a parent lawfully uses medical marijuana
pursuant to the AMMA. Here, however, if Father ever had a medical
marijuana card it is undisputed that he did not have one at the time of the
contested severance hearing but continued to use marijuana. Accordingly,
he cannot rely on A.R.S. § 36-2813(D) to protect his parental rights from
severance under A.R.S. § 8-533(B)(3).

¶12          The juvenile court also did not err in finding that DCS had
met its burden of proof under A.R.S. § 8-533(B)(3). Pursuant to that statute,


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                          DARREN G. v. DCS, et al.
                           Decision of the Court

a court may terminate parental rights if clear and convincing evidence is
presented showing the “parent is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of . . . controlled
substances . . . and there are reasonable grounds to believe that the
condition will continue for a prolonged indeterminate period.” A.R.S. § 8-
533(B)(3). A DCS case worker testified that on numerous occasions during
supervised visits, the parent-aide reported that the home smelled of
marijuana, Father appeared to be under the influence, and Father would
fall asleep. Father also failed to keep his marijuana out of the reach of the
children. Because this evidence supports the court’s finding that Father was
unable to discharge his parental responsibilities due to drug use, we affirm
the termination of Father’s parental rights to the children.

¶13          Father also argues that the court erred by finding that
severance was in the best interest of the children because the children were
not in an adoptive placement nor had one been located. We disagree.

¶14            To show that termination is in the best interest of the children,
DCS must prove the children “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). “The
benefit of severance to the child is that which the legislature intended:
freedom to be adopted into a stable and nurturing home.” In re Maricopa
Cty. Juvenile Action No. JS-8441I, 175 Ariz. 463, 469 (App. 1993), abrogated on
other grounds by Kent K., 210 Ariz. at 282, 288, ¶¶ 12, 41. DCS is not required
however to show that a specific adoption plan is in place before terminating
a parent’s rights, it only needs to show that the children are adoptable. See
Juvenile Action No. JS-8441I, 175 Ariz. at 469. Although the children are not
in an adoptive placement, the DCS case worker testified that they are
adoptable. Therefore, the court did not abuse its discretion by finding that
severance was in the best interest of the children.




                                       5
                         DARREN G. v. DCS, et al.
                          Decision of the Court

                              CONCLUSION

¶15            For the foregoing reasons, the record supports the juvenile
court’s termination of Father’s parental rights, and that severance is in the
best interest of the children. Therefore, we affirm.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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