                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              JANE B., Appellant,

                                        v.

            DEPARTMENT OF CHILD SAFETY, J.R., Appellees.

                             No. 1 CA-JV 14-0178
                              FILED 12-11-2014


           Appeal from the Superior Court in Maricopa County
                             No. JD510757
               The Honorable Peter A. Thompson, Judge

                                  AFFIRMED


                                   COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellee Department of Child Safety
                           JANE B. v. DCS, J.R.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Jane B. (“Mother”) appeals the juvenile court’s termination of
her parental rights to four-year-old J.R. based on nine months’ time in care
and on 15 months’ time in care. Mother argues that the court failed to
properly consider whether the Arizona Department of Child Safety
(“DCS”) provided her adequate and meaningful reunification services, and
that the court erred as a matter of law by permitting DCS to amend its
severance motion to include the 15 months’ time in care ground after the
hearing had commenced. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Mother has a significant history of substance abuse that has
kept her from safely parenting J.R. Services offered to Mother in the past
have included substance abuse treatment, drug testing, psychological
evaluations, parenting classes, parent-aide assistance, and counseling.
Mother did not, however, take advantage of these services.

¶3           Mother began using heroin at age 18, and within a few years
she was also using methamphetamine and abusing an OxyContin
prescription. When she gave birth in 2010, Mother tested positive for
methadone, OxyContin, codeine, and Percocet, and J.R. tested positive for
opiates. As a result of being exposed to these substances in utero, J.R.
experienced severe withdrawal symptoms following his birth and was
taken into custody by DCS until he was three months old, after which he
was returned to Mother.

¶4           Mother was offered substance abuse treatment for her
addictions. But she failed to attend three scheduled intake appointments at
the substance abuse treatment center, and she did not comply with random
drug testing requirements. Because she stopped responding to the
program’s outreach attempts, the substance abuse services were
discontinued in February 2011.




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                            JANE B. v. DCS, J.R.
                            Decision of the Court

¶5            In January 2013, Mother was incarcerated for failing to appear
on a first-degree burglary charge. Because J.R.’s biological father was also
incarcerated at the time, Mother left J.R. in the care of her sister, the child’s
maternal aunt, before going into state custody. DCS subsequently rejected
the placement with J.R.’s maternal aunt, and J.R. was placed in DCS custody
on January 19, 2013. DCS thereafter began dependency proceedings.

¶6            Mother received several additional referrals for substance
abuse treatment in the months following J.R.’s removal. The first two were
again closed out due to her noncompliance, but she successfully completed
an intake appointment for the third referral in October 2013. Mother tested
positive for methamphetamine on the date of her intake appointment, and
she reported that during the previous 12 months she had used marijuana,
alcohol, methamphetamine, poly substances, and heroin. A triage form
from the time of the referral noted that Mother’s “[s]ubstance use has
caused cognitive impairments which preclude [the] ability to abstain
without significant intervention,” and that Mother’s “[r]esistance [level
was] so entrenched that treatment success [was] highly unlikely.”

¶7            Mother did not continue with the treatment plan after the
initial meeting. She missed appointments to enroll in group therapy, and
again failed to comply with drug testing requirements. As a result of
Mother’s noncompliance, treatment services were terminated, and in
November 2013, DCS moved to terminate Mother’s parental rights to J.R.
based on substance abuse and nine months’ time in care.

¶8            At a contested severance hearing that began on April 15, 2014,
Mother testified about her drug use.1 She stated that she began using drugs
as a teenager, and that although she had previously had long periods of
sobriety, she had relapsed after J.R.’s removal from her home.

¶9             When asked why she did not submit to required drug testing,
Mother testified that she “[didn’t] see the point in going and taking a drug
test that [she] already [knew] the results of” because she knew she would
test positive. At the time of trial, Mother had not submitted to drug testing
in over six months, and each of her referrals for treatment had been closed
out at due to noncompliance. Mother also indicated that she had not
complied with drug testing requirements because she believed they were
optional. When questioned why she did not take advantage of substance


1      The court also ordered the uncontested severance of J.R.’s father’s
rights due to abandonment, nine months’ time in care, prior termination,
and length of incarceration.


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                            JANE B. v. DCS, J.R.
                            Decision of the Court

abuse treatment programs, Mother said, “I don’t know. I started. I just
never followed through.”

¶10            Mother’s participation in other reunification services was
similarly deficient. At the severance hearing, Mother stated that she was
initially allowed one visit per week with J.R., and that despite being offered
transportation to and from these visits, she missed several meetings due to
“the ridiculous stipulations of getting to see him.” Mother only visited J.R.
four times over a six-month period. Because she did not show up for other
scheduled visits, Mother was asked to call and confirm that she would
attend prior to each visitation. Mother did not comply with that procedure
and would become upset with the case aide when visits were cancelled
based on Mother’s failure to call ahead. At the time of the severance trial,
Mother had not seen J.R. for six months, and he had been in an out-of-home
placement for just under 15 months.2

¶11           Mother alleged that several of her missed meetings were due
to DCS intentionally scheduling her visits at the same time as her criminal
court appearances. Although Mother testified that she told her case aide
about this, nothing else in the record references Mother informing DCS of
these conflicts.3 Moreover, Mother also asserted a variety of reasons for
missing her visits with J.R., including “the ridiculous stipulations of getting
to see him,” visit times changing from the original schedule, and not getting
outside quickly enough to take advantage of the transportation provided
for visits.

¶12           The court permitted a one-month recess to allow the parties
time to draft objections to the remainder of the proposed hearing exhibits.
After ruling on the parties’ objections, the court reconvened the hearing on
May 23, 2014, but Mother failed to appear at the time set for trial, and the
hearing proceeded in absentia.

¶13           The case manager opined that due to Mother’s history of
substance abuse and her unwillingness to participate in the treatment
programs provided her, Mother was unable to carry out her parental
responsibilities. The case manager further testified that there were
“reasonable grounds to believe that [Mother’s] condition will continue for
a prolonged, indeterminate period” of time. The case manager also noted


2      J.R. was removed on January 19, 2013, and the severance trial began
on April 15, 2014.
3      Mother also testified that if a visit was cancelled, her case aide would
place her name on a waiting list for the next available opening.


                                      4
                            JANE B. v. DCS, J.R.
                            Decision of the Court

that Mother’s most recent request for visitation with J.R. was in November
2013, and although visits were scheduled, Mother again failed to attend.

¶14           As of the date of the second day of the hearing, J.R. had been
in an out-of-home placement for over 15 months. DCS accordingly moved
to add the 15 months’ time in care ground to the severance motion.
Mother’s counsel did not object, and the court allowed the amendment.

¶15            While the court was entering its findings, Mother called in
and explained that she was not at the trial because she was ill. Mother
stated that she had recently gone for in-patient treatment, but that it had
not helped her so she did not complete the program. The court ruled that
Mother had not established good cause for her absence and continued with
its findings.4

¶16          The court terminated Mother’s parental rights, finding that
DCS had proved substance abuse, nine months’ time in care, and 15
months’ time in care grounds by clear and convincing evidence.

¶17         Mother timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 8-235(A).5

                                DISCUSSION

¶18            “We view the evidence in a severance case in the light most
favorable to sustaining the juvenile court’s findings.” Christina G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). A
juvenile court’s decision will not be disturbed unless it was clearly
erroneous or an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). Because a trial court is in
the best position to weigh the evidence, judge the credibility of witnesses,
and make factual findings, this court only considers whether there is
evidence sufficient to uphold the superior court’s decision. Id.

¶19             The superior court can terminate an individual’s parental
rights if it finds clear and convincing evidence that supports at least one
statutory severance ground under A.R.S § 8-533, and also determines by a
preponderance of the evidence that severance is in the best interests of the
child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
Two such statutory grounds are nine months’ time in care, requiring proof

4     The court also struck the in absentia determination.
5     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            JANE B. v. DCS, J.R.
                            Decision of the Court

that “the parent has substantially neglected or wilfully refused to remedy
the circumstances that cause the child to be in an out-of-home placement,”
and 15 months’ time in care, requiring proof that “the parent has been
unable to remedy the circumstances” necessitating the out-of-home
placement and that “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.” A.R.S. § 8-533(B)(8)(a), (c).

¶20             “If clear and convincing evidence supports any one of the
statutory grounds on which the juvenile court ordered severance, we need
not address claims pertaining to the other grounds.” Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). Here, we
conclude that the juvenile court correctly ordered severance based on the
nine months’ time in care ground, and we thus need not address Mother’s
arguments regarding 15 months’ time in care.

¶21          There is no dispute that J.R. was in an out-of-home placement
for more than nine months, and Mother does not challenge the best interests
finding. Mother argues, however, that the juvenile court abused its
discretion by rejecting Mother’s argument that DCS did not provide
adequate and meaningful services.

¶22             DCS has a duty to make “all reasonable efforts” to reunify a
family before terminating parental rights. Christina G., 227 Ariz. at 234–35,
¶ 14, 256 P.3d at 631–32. Although DCS must make services available to
parents, it is not required “to provide every conceivable service or to ensure
that a parent participates in each service it offers.” Id. at 235, ¶ 15, 256 P.3d
at 632 (citation omitted). Nor is DCS required to provide services that are
futile or lack a reasonable probability of success. Id.

¶23          Here, DCS offered numerous services, but Mother did not
take advantage of them. Although Mother was given several opportunities
to attend substance abuse treatment, she did not follow through with
scheduled appointments and with drug testing requirements. Nor did she
take advantage of available psychological counseling, parenting education,
parent-aide services, and family and group counseling services.

¶24           Similarly, Mother did not take advantage of numerous
opportunities to visit J.R., notwithstanding DCS’s offers to provide
transportation and to work to reschedule missed visits. Accordingly, the
juvenile court did not abuse its discretion by severing Mother’s parental
rights based on the nine months’ time in care ground.




                                       6
                   JANE B. v. DCS, J.R.
                   Decision of the Court


                     CONCLUSION

¶25   For the foregoing reasons, we affirm.




                         :ama




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