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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              JUSTIN G., Appellant,

                                         v.

     DEPARTMENT OF CHILD SAFETY, H.G., P.G., N.G., Appellees.

                              No. 1 CA-JV 17-0008
                                FILED 6-20-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD29995
                 The Honorable Lisa Daniel Flores, Judge

                                   AFFIRMED


                                    COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

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



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


C R U Z, Judge:

¶1            Appellant Justin G. (“Father”) appeals the superior court’s
order terminating his parental rights. For the following reasons, we affirm
the superior court’s order.

               FACTUAL AND PROCEDURAL HISTORY1

¶2             Father is the biological father of H.G., born July 21, 2011; P.G.,
born August 10, 2012; and N.G., born June 1, 2013 (collectively, the
“Children”). In February 2015, the Department of Child Services (“DCS”)
alleged the Children were dependent as to Father due to substance abuse,
mental health, domestic violence, and neglect. The superior court found
the Children dependent as to Father in July 2015. Father was incarcerated
in early 2016 for a drug-related crime, and DCS moved for severance in May
2016 on the ground of inability to remedy the circumstances causing the
Children to be in an out-of-home placement for fifteen months or longer.2
See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c).3

¶3            At trial, two DCS employees testified Father had not fully
participated in services or remedied any of the circumstances bringing the
Children into care. One employee stated Father had admitted a history of
substance abuse, but he had not completed substance abuse testing or
treatment. The other employee testified DCS referred Father to drug testing


1      We view the facts in the light most favorable to affirming the
superior court’s order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18, 219 P.3d 296, 303 (App. 2009).

2      DCS also alleged the ground of substance abuse, but at trial it only
presented evidence as to the ground of fifteen months’ time in care. Ariz.
Rev. Stat. (“A.R.S.”) § 8-533(B)(3).

3     We cite the current version of applicable statutes unless revisions
material to this decision have occurred since the events in question.


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

seven times over the course of the proceedings but that Father only
participated “somewhat” in the service. She opined Father had not
remedied the circumstances that brought the Children into care because he
had not participated in all the necessary services, had not shown the
behavioral changes necessary to safely parent the Children, and was
incarcerated for possession of marijuana. She testified there was a
substantial likelihood that Father would not be capable of exercising proper
and effective parental care and control in the near future due to his
incarceration and his inability to exercise such care and control over the
course of the proceedings. She concluded by stating Father had no firm
release date because he was awaiting a plea agreement in his criminal case,
but that February 2017 was when Father could be released.

¶4            The superior court found that DCS proved by clear and
convincing evidence that: (1) the Children had been in an out-of-home
placement for a cumulative period of fifteen months or longer; (2) “DCS
made diligent efforts to provide appropriate reunification services to Father
when he was out of custody, and additional efforts would be futile because
of Father’s choice to commit crimes”; and (3) Father had been unable to
remedy the circumstances that caused the Children to be in an out-of-home
placement and there was a substantial likelihood that Father would not be
capable of exercising proper and effective parental care and control in the
near future. It also found that DCS had proven by a preponderance of the
evidence that terminating Father’s parental rights was in the Children’s best
interests because, in part, the Children were adoptable and severance
would allow their paternal grandfather to adopt them.

¶5            In its findings, the superior court concluded that although
Father had a strong bond with the Children, clear and convincing evidence
showed that the Children had been in care for nearly two years and Father
had been unable to change the lifestyle choices that prevented him from
safely parenting the Children. It noted that although Father’s incarceration
had forced him to abstain from drugs and alcohol, he had not demonstrated
sobriety outside the correctional setting and his history of substance abuse
indicated a substantial likelihood that Father would not be able to parent
the Children in the near future. It further explained that Father would need
treatment upon his release and that even in the best-case scenario, the
Children would not be returned to him for another twelve to fifteen
months.

¶6           Consequently, the superior court entered its order
terminating Father’s parental rights, and Father has timely appealed. We



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

have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-
2101(A)(1).

                               DISCUSSION

¶7           Father asserts the superior court erred by finding (1) DCS
made a diligent effort to provide appropriate reunification services to him,
and (2) he would not be capable of exercising proper and effective parental
care and control in the near future due to his incarceration.4

I.     Standard of Review

¶8            The superior court “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,
219 P.3d 296, 303 (App. 2009). We will not reweigh the evidence, and we
will affirm a termination order that is supported by reasonable evidence.
Id.

¶9             The superior court may sever a parental relationship
pursuant to A.R.S. § 8-533(B)(8)(c) if DCS shows: (1) the child has been in
an out-of-home placement for a cumulative total period of fifteen months
or longer pursuant to court order; (2) “the parent has substantially
neglected or willfully refused to remedy the circumstances that cause the
child to be in an out-of-home placement”; and (3) DCS has “made a diligent
effort to provide appropriate reunification services.” Id. DCS must also
show, by a preponderance of the evidence, that severance is in the child’s
best interest. A.R.S. § 8-533(B); Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217
Ariz. 585, 587, ¶ 7, 177 P.3d 327, 329 (App. 2008).

II.    Reunification Services

¶10           Father argues the superior court erred by finding DCS had
made a diligent effort to provide appropriate reunification services. He
asserts that if DCS had provided the appropriate reunification services
before January 2016, his ability to parent could have been judged on those
services and on the programs he completed while in custody.




4       Father does not challenge the superior court’s findings regarding
any other element of the fifteen-months-in-care ground or the Children’s
best interests. He has accordingly conceded the accuracy of these findings.
Britz v. Kinsvater, 87 Ariz. 385, 388, 351 P.2d 986, 987 (1960).


                                       4
                           JUSTIN G. v. DCS, et al.
                            Decision of the Court

¶11            DCS’s obligation to provide diligent reunification services
requires that it provide “the time and opportunity to participate in
programs designed to improve the parent’s ability to care for the child.”
Jordan C., 223 Ariz. at 94, ¶ 20, 219 P.3d at 304. It must “undertake measures
with a reasonable prospect of success in reuniting the family,” id., but it
need not provide every conceivable service, ensure the parent participates
in each service it offers, undertake rehabilitative measures that are futile, or
leave the window of opportunity for remediation open indefinitely, Tanya
K. v. Dep’t of Child Safety, P.K., 240 Ariz. 154, 157, ¶ 11, 377 P.3d 351, 354
(App. 2016).

¶12           We conclude the superior court did not abuse its discretion by
finding DCS made a diligent effort to provide appropriate reunification
services. Father concedes DCS provided referrals to substance abuse
assessment, drug testing, a psychological consultation, and a parent aide as
early as February 2015. Although Father highlights the court’s conclusion
in January 2016 that DCS had not made reasonable efforts to provide
appropriate reunification services, the record shows these services were
available to Father for months but that his sporadic participation caused
many of the referrals to expire. Over the course of the proceedings, DCS re-
referred Father for drug testing seven times and drug treatment three times.
It referred Father to a parent aide in March 2015, but the referral closed
months later due to Father’s inconsistent attendance. After the court found
that DCS had not made reasonable efforts to provide appropriate
reunification services in January 2016, DCS re-referred Father to substance
abuse treatment within three weeks and re-referred him for a psychological
consultation and drug testing by the end of March 2016. Even after being
re-referred for these services, Father failed to participate. The record is
unclear exactly how much of Father’s failure to participate was due to his
incarceration. Father was incarcerated at various points in the proceedings,
but the record does not reflect the exact dates of his incarceration. The
record is clear, however, that Father was incarcerated on a drug-related
charge by April 2016. In light of these facts, the court did not abuse its
discretion by finding DCS made a diligent effort to provide appropriate
reunification services.

III.   Proper and Effective Care and Control

¶13           Father argues the superior court erred by finding he would
not be capable of exercising proper and effective parental care and control
in the near future. He asserts the court erroneously relied on his
incarceration at the time of the severance trial in making its conclusion and



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

overlooked the classes and programs he completed while incarcerated
when determining his ability to parent.

¶14           As an initial matter, the record does not support Father’s
assertion that the superior court overlooked the classes and programs he
completed while incarcerated. The court expressly recognized Father’s
participation in services and commended him for his efforts, but noted that
he had failed to demonstrate sobriety while out of custody, participate in
treatment prior to his incarceration, or complete the treatment program
offered by the jail.

¶15            We conclude the superior court did not abuse its discretion in
finding Father would not be capable of exercising proper and effective
parental care and control in the near future. Father admitted to an
approximately ten-year history of drug and alcohol abuse and confirmed
he was still abusing alcohol when the Children came into DCS custody.
Despite this, he failed to consistently participate in substance abuse testing
and treatment to reunify with the Children. The record demonstrates that
Father participated only sporadically in drug testing from February to April
2015, and many of his tests returned positive for alcohol and other
substances including methamphetamine and cocaine. After May 2015,
Father stopped calling in or participating in drug testing altogether.5 Father
similarly failed to participate in substance abuse treatment; DCS referred
Father to the service in March 2015, November 2015, and February 2016, but
he failed to participate beyond his May 2015 intake appointment. Similarly,
Father’s parent-aide referral closed due to his nonparticipation, and his case
aide reported his visits were inconsistent.

¶16            Finally, we reject Father’s argument that the superior court
improperly relied on Father’s incarceration at the time of the severance trial.
The superior court considered Father’s incarceration as one factor when
determining whether Father would be capable of exercising proper and
effective parental care and control in the near future. It noted that “[w]hile
the ‘near future’ has never been defined in an appellate decision, Father will
not even be out of custody until February 10, 2017,” and that “it would be
reasonable for [DCS] and the Court to require Father to demonstrate nine
to twelve months of sobriety and successfully complete substance abuse
treatment” before considering unsupervised visitation with the Children
due to Father’s history of substance abuse and failure to demonstrate
sobriety outside the correctional setting. It concluded that even in the best-

5       Father did call for drug testing once in November 2015, but he failed
to test despite being required to do so.


                                      6
                        JUSTIN G. v. DCS, et al.
                         Decision of the Court

case scenario, the Children would remain in DCS custody for fifteen more
months, at which time they would have been in DCS care for more than
three years.

                             CONCLUSION

¶17          For the foregoing reasons, we affirm.




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




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