NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).

MEMORANDUM DECISION

BREARCLIFFE, Judge.

¶1 In these consolidated appeals, Paula J. and Michael L., parents of H.L. and C.L., born in February 2014 and May 2015 respectively, challenge the juvenile court's June 2017 order terminating their parental rights on the grounds of chronic substance abuse and length of time in court-ordered care, A.R.S. § 8-533(B)(3), (8)(c), and as to Michael, the additional ground of mental illness, § 8-533(B)(3). The parents also challenge the court's denial of their motion to set aside the termination order. We affirm the court's orders for the reasons stated below.

¶2 To sever a parent's rights, the juvenile court must find clear and convincing evidence establishes at least one statutory ground for termination, and a preponderance of the evidence shows terminating the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005); see also A.R.S. § 8-863(B). We do not reweigh the evidence on appeal; rather, we defer to the juvenile court with respect to its factual findings because it "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). We will affirm the order if the findings upon which it is based are supported by reasonable evidence. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). We view the evidence in the light most favorable to upholding the ruling. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 12 (App. 2007).

¶3 The Department of Child Safety (DCS) took temporary custody of the children in August 2015 and filed a dependency petition after Michael left then three-month-old C.L. in the car following an argument with Paula. C.L. was taken to a hospital after a neighbor found the child crying in the car; he had a temperature of 101 degrees and was treated for dehydration. Michael was charged with child abuse. The dependency petition alleged, among other things, that the parents had been neglecting the children, exposing them to domestic violence, and that Paula had left the children in Michael's care despite his diagnosis of bipolar disorder and unstable behavior, and in the care of persons known to be drug users. The petition further alleged that Michael's "ability to parent is impaired by mental illness," and that he had a history of methamphetamine use. The children were adjudicated dependent as to both parents in October 2015 after they reached a facilitated settlement agreement and waived their rights to a hearing. Paula admitted the allegations in the petition and Michael entered a plea of no contest.

¶4 To facilitate the case-plan goal of reunification, the parents were offered drug testing, substance-abuse treatment, domestic violence services, parenting classes, psychological evaluations, individual counseling, couples counseling, and supervised visitation. During the year between the children's adjudication in October 2015 and November 2016, when they underwent psychological evaluations, they did not fully comply with the case plan and they continued to test positive for methamphetamine.

¶5 Paula admitted, during her November 2016 psychological evaluation by psychologist Marion Selz, Ph.D., that she had been taking opiates and then heroin between 2009 and 2010 but was able to stop. She started using methamphetamine in 2013, had stopped periodically, such as during her pregnancies, but admitted she was currently using it "every few days." Selz diagnosed Paula with substance abuse with a high risk of relapse and dependent personality disorder, stating she might not be able to manage Michael's outbursts of anger.

¶6 Michael was evaluated by Selz in November 2016. He admitted he "is a drug addict," having used methamphetamine daily for over twenty years, and at that time using one or two times a week. She diagnosed him as suffering from either bipolar disorder or schizophrenia, a personality disorder, and severe substance abuse disorder. She deferred to the diagnoses by personnel at the Arizona State Hospital, where Michael had spent seventy days pursuant to a court order in connection with his conviction for child abuse. Selz had "grave concerns" the children would be at great risk in Michael's care because of his "behavior, poorly regulated mood, irritability, limited patience and frustration tolerance, [and] poor impulse control."

¶7 The parents' drug use persisted and in December 2016, pursuant to DCS's request, the juvenile court ordered the case plan changed from reunification to severance and adoption. DCS filed a motion to terminate the parents' rights based on chronic substance abuse and length of time in care, as well as mental illness as to Michael. At the severance hearing in April 2017, the parties stipulated to the admission of various exhibits and agreed to submit the case to the court based on those exhibits, brief narrative statements by the parents, and testimony from the caseworker on the issue of the children's best interests. The evidence established the parents had made significant efforts during the months preceding the hearing to address their drug use, submitting to regular testing. Paula, who had not been submitting consistently to drug testing, had resumed regular testing on February 22, 2017, and the results since then had been reliably negative. Although Michael tested positive for methamphetamine on March 7, subsequent test results were reliably negative.

¶8 At the end of the hearing, the juvenile court took the matter under advisement. Noting the parents' recent sobriety, the court commented that it might grant DCS's termination motion after reviewing the exhibits but it would set the case for another hearing date in any event, "to see what happens in so many months." In its June 2017 under-advisement ruling, however, the court found DCS had sustained its burden of proving all grounds alleged in its motion. The parents appealed and we granted the request, by counsel who represents them both, to consolidate the appeals. While the appeal was pending, the parents filed a motion to set aside the judgment. This court granted the parents' request to stay the appeals and revest jurisdiction in the juvenile court to permit it to rule on the motion. The court denied the motion following a hearing, the parents timely appealed that ruling, and we granted the parents' request to incorporate the amended appeal into these consolidated appeals.

¶9 The parents contend the juvenile court's order is not supported by clear and convincing evidence. With respect to the ground of substance abuse, DCS was required to show the parents are "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." § 8-533(B)(3). The parents' substance abuse was also one of the main reasons the children remained out of the home. It was thus a major factor in the termination of their rights pursuant to § 8-533(B)(8)(c), which provides for termination when a child has been placed out of the home for at least fifteen months and "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and 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." § 8-533(B)(8)(c).

¶10 Relying on what they characterize as their "extended period of sobriety, as well as most recent compliance with the case plan," the parents argue the evidence fell short of establishing their substance abuse would continue for a "prolonged and indeterminate period of time." They assert further that their "documented sobriety up to the day of trial was the most consistent they had been during the dependency." They point to evidence that they claim demonstrated they were "on the right path and had made the changes necessary to maintain their sobriety."

¶11 The parents are essentially asking this court to reweigh the evidence and give greater weight to the evidence regarding their efforts to attain and maintain sobriety. As we previously stated, however, it is for the juvenile court, not this court, to weigh the evidence presented based on its assessment of the witnesses' credibility and its resolution of any conflicts in the evidence. See Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). The juvenile court made clear in its under-advisement ruling that it considered the evidence before it, which included evidence of their recent efforts to attain sobriety, identifying the statutory elements of the grounds for severance, and applying the correct burden of proof. It reviewed the history of this case, noting the parents' significant history of substance abuse, and it found they continued to use drugs notwithstanding the abundance of services provided. The court pointed out that throughout the dependency the parents were only partially compliant with the case plan. It noted further that as of April 4, 2017, the date of the last report submitted by DCS at the April 18 severance hearing, the parents had not completed the case plan, and although they were "testing more reliably," Paula had tested positive for methamphetamine as recently as February 22 and Michael had tested positive on March 3.

¶12 As the juvenile court correctly observed in its order, this court stated in Raymond F. v. Arizona Department of Economic Security, 224 Ariz. 373, ¶ 16 (App. 2010), that to support the termination of a parent's rights under § 8-533(B)(3), DCS need not prove a parent's substance abuse has been "constant, . . . invariable and uniform." In that case, this court rejected the father's argument that there was insufficient evidence his drug abuse was likely to continue for a prolonged, indeterminate period because he had tested negative for drugs during the four months preceding the severance hearing. Id. ¶ 24. This court concluded, "Father's temporary abstinence from drugs and alcohol does not outweigh his significant history of abuse or his consistent inability to abstain during this case." Id. ¶ 29. We added, "It is not the number of times that Father has tested positive or negative for drug abuse that is key, but rather, it is the fact that he has consistently failed to abstain from drugs and alcohol." Id. See also Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282 (App. 2016) (parent's sobriety for period before severance hearing may be relevant to likelihood that drug abuse would continue, but not determinative of issue). Here, notwithstanding the parents' progress before the severance hearing, the record establishes the existence of reasonable evidence to support the juvenile court's finding that termination was justified under § 8-533(B)(3).

¶13 Although we only need to find one ground for terminating a parent's rights sustainable to affirm the juvenile court's order, see Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 12 (2000), the facts underlying the termination of the parents' rights pursuant to § 8-533(B)(3) are intertwined with the facts underlying the ground of length of time in court-ordered care. § 8-533(B)(8)(c). We therefore briefly address the sufficiency of the evidence on that ground.

¶14 The parents' chronic, long-term substance abuse and failure to benefit sufficiently from the services provided was a major reason the children could not be returned to their care. The parents appear to acknowledge this by arguing the court erred in terminating their rights based on the length of time in court-ordered care, despite their recent sobriety. Thus, they contend again that because of the progress they had made by the time of the severance hearing, there was insufficient evidence to support the court's finding, consistent with § 8-533(B)(8)(c), that "there is a substantial likelihood that the parent will not be capable of exercising proper parental care and control in the near future." Just as there was sufficient evidence to support the court's analogous finding under § 8-533(B)(3), there was reasonable evidence to support this finding, too.

¶15 Because we have rejected the arguments related to § 8-533(B)(3) and § 8-533(B)(8)(c), we need not address Michael's claim that there was insufficient evidence to support the court's termination of his rights on the additional ground of mental illness under § 8-533(B)(3). We turn instead to the parents' argument that the record contains insufficient evidence to support the court's finding that termination of their rights was in the children's best interests.

¶16 In order to find severance of a parent's rights is in the child's best interest, the juvenile court must find termination would benefit the child in some way or that continuing the parent-child relationship would be detrimental. See Raymond F., 224 Ariz. 373, ¶ 30. The immediate availability of an adoptive home or evidence that a child is adoptable may be a sufficient benefit to support a best-interest finding. See id., see also Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 16 (2016).

¶17 The parents argue the evidence was insufficient here because the children were not in an adoptive placement at the time of the severance hearing. They contend there was no evidence severance would benefit the children or that continuing the relationship would be detrimental. The juvenile court found, however, that severance would benefit the children because they were adoptable and would be "made available for adoption, which will provide the permanency they have lacked for most of their lives." This evidence supported the best-interest finding. See Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, ¶ 26 (App. 2011); see also Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 19 (App. 2004) (best interest may be established by showing "a current adoptive plan exists for the child, or even that the child is adoptable"). DCS correctly points out that it was not required to show a specific adoption plan existed at the time of the severance hearing. See In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). The court did not abuse its discretion in finding that for these children, who had been out of the home most of their lives and were in need of permanency, termination of their parents' rights was in their best interests.

¶18 The parents also challenge the juvenile court's denial of their motion to set aside the termination order pursuant to Rule 60(b)(2), Ariz. R. Civ. P., in which they alleged they had newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial pursuant to Rule 59(b)(1), Ariz. R. Civ. P. See Ariz. R. P. Juv. Ct. 46(E) (motion to set aside judgment "shall conform to the requirements of Rule 60(b)-(d), Ariz. R. Civ. P."). The evidence they proffered related to their efforts to maintain sobriety, address their substance abuse and other issues, and improve their parenting abilities by participating in services such as individual therapy, healthy relationship therapy, substance abuse classes, random drug testing and visitation with the children.

¶19 To constitute newly discovered evidence for purposes of Rule 60(b)(2), the evidence must have existed at the time of trial. Rogers v. Ogg, 101 Ariz. 161, 163 (1966); see also Birt v. Birt, 208 Ariz. 546, ¶ 11 (App. 2004) (finding husband's bankruptcy petition, filed after entry of dissolution decree, was not newly discovered evidence). We will not disturb a trial court's ruling on a motion to set aside a judgment absent an abuse of discretion. Birt, 208 Ariz. 546, ¶ 9.

¶20 In its ruling on the parents' motion following a hearing, the juvenile court identified the records and reports the parents had characterized as newly discovered. The court found the affidavits of the individual therapist and substance abuse facilitator from COPE were not newly discovered because those documents did not exist until after the severance hearing. Similarly, the court found the parents' completion of the healthy relationship class did not qualify as new evidence under the rule; the parents' certificate of completion of healthy relationship class, dated July 13, 2017, related to their completion of the class after the April 2017 severance hearing. Paula's hair follicle test result was dated July 2017, and therefore it, too, did not previously exist. Moreover, the juvenile court found, the evidence was cumulative insofar as it related to pre-hearing drug testing because the court had already considered, at the severance hearing, evidence of urinalysis test results that demonstrated Paula's sobriety for the period from February to April 2017. The court added that the test results did not relate to the period from November 2016 through February 2017, during which Paula had missed tests, and the proffered evidence therefore did not refute the negative inferences the court was permitted to draw during that period.

¶21 The juvenile court found the individual counselor, case manager, and visit supervisor had been working with the parents before the court held the hearing and entered its order and were therefore available to testify and could have been discovered with due diligence. The court added that, in any event, at best their testimony would have supported the parents' claims that they had improved their behavior and had attained sobriety before the hearing. Again, the court found that the parents' progress at that point did not change its conclusion that severance was warranted under § 8-533(B)(3) and § 8-533(B)(8)(c). The court stated, "Although it appears that the Mother, but not the Father, started to take positive steps towards recovery after the severance trial, while commendable, it is too little, too late for the purpose of this dependency." Reviewing once again the parents' history and their failure to become sufficiently sober and stable to regain custody of the children, the court denied the motion.

¶22 At the hearing on the motion, counsel argued this new evidence "probably wasn't ripe until sometime after April 18th," when the parents started to benefit from the services through the individual counselor, case manager, and visit supervisor. The juvenile court questioned counsel as to why the parents had not presented the evidence at the severance hearing. Counsel pointed out to the court, as he does on appeal, that it had set further severance hearings after April 18, anticipating the possibility that the court would choose not to terminate the parents' rights at that time but would give them additional time to continue to participate in and benefit from services, and continue to test negative for drugs. Counsel argued the parents responded to that possibility by doing what the court suggested they do, urging the court to give them the additional time the court had anticipated it might give them at the end of the hearing. He argued, too, as he does on appeal, that evidence regarding events between April 18 and the court's June under-advisement ruling did exist at the time of trial because the court had not yet ruled.

¶23 We reject the parents' argument that whether the evidence existed at the time of trial for purposes of Rule 60(b)(2) included the time between the April 18, 2017 hearing and the June 13 ruling. The juvenile court stated at the end of the severance hearing that it would only hold further hearings and take additional evidence relating to the parents' efforts to maintain sobriety if it did not find the evidence presented at the April hearing sufficient to grant the severance motion. Though the court could have been clearer to avoid any confusion, we are not persuaded by the parents' argument that the court, in effect, extended the end of the trial for purposes of the rule.

¶24 The juvenile court's ruling on the motion reflects that it applied the correct legal standard for evaluating it. Additionally, there is reasonable evidence to support the factual findings in that ruling. Although parents must "be given a fundamentally fair opportunity to rectify parenting problems before their parental rights may be terminated," Alma S. v. Dep't of Child Safety, 778 Ariz. Adv. Rep. 24, ¶ 11, (Ct. App. Nov. 14, 2017), in its initial ruling and its denial of the motion to set aside the severance order, the court found the parents had that opportunity but did not benefit in sufficient time to avoid severance. See Raymond F., 224 Ariz. 373, ¶ 29 (finding father's temporary abstinence from drugs and alcohol did not outweigh significant history of substance abuse). The court found that, even assuming the evidence could be characterized as newly discovered for purposes of Rule 60(b), it "would not have changed the outcome of the severance trial, as Parents' recent improvements occurring just weeks preceding the trial could not be sufficient to persuade the Court to give them more time to reunify with their Children." Based on the record before us and our deference to trial courts with respect to the weighing of evidence, we cannot say the court abused its discretion in reaching that conclusion here.

¶25 The juvenile court's orders, terminating the parents' rights and denying their motion to set aside the severance order, are affirmed for the reasons stated herein.