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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              DEREK M., Appellant,

                                         v.

        DEPARTMENT OF CHILD SAFETY, M.M., D.M., Appellees.

                              No. 1 CA-JV 15-0147
                                FILED 10-29-2015


            Appeal from the Superior Court in Maricopa County
                              No. JD 22513
                  The Honorable Joan M. Sinclair, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee
                      DEREK M. v. DCS, M.M., D.M.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1            Derek M. (“Father”) appeals from an order terminating his
parental rights to his daughter and son (collectively, “the children”). For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The Department of Child Safety (“DCS”) filed a dependency
petition as to the daughter in September 2012, after she was admitted to
the hospital at the age of 17 months.1 The dependency petition alleged
neglect by both parents, as well as substance abuse by Father.

¶3            The superior court found the daughter dependent. DCS
offered Father services, including drug treatment, but he was “unwilling”
to participate. The mother gave birth to their son in March of 2013. In
May 2013, DCS returned the daughter to the mother’s care with the
understanding that a restraining order was in place and the proviso that
Father not be allowed around the children. At DCS’ request, the court
dismissed the dependency petition in August 2013.

¶4           In September 2013, police officers responded to an
altercation between the parents. Based on concerns about domestic
violence and drug use, DCS filed a new dependency petition that included
both children.

¶5            The court found the children dependent, and DCS offered
Father services, including a parent aide, domestic violence classes, drug
testing, substance abuse treatment, and a psychological evaluation. The
evaluating psychologist determined Father was “clearly having

1      The Arizona Department of Economic Security originated this
action but was later replaced by the Department of Child Safety. See S.B.
1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014). We refer to both entities as
“DCS.”



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                      DEREK M. v. DCS, M.M., D.M.
                         Decision of the Court

difficulties maintaining sobriety.” She recommended he continue with
substance abuse treatment and have verified sobriety for a minimum of
one year before being allowed to care for a child. She opined that if Father
“completes all of the recommendations successfully, as well as maintains
steady employment and housing, there is no reason to believe a child
placed in his care would be at risk in any way.”

¶6             Father did not fully engage in parent aide services.
Additionally, although there was a three-month gap that was not Father’s
fault, his participation in drug testing was “negligible at best.” The
referral for substance abuse treatment was closed out for non-attendance
and failure to provide necessary documentation. Even when DCS made
another referral, Father only partially participated. Father also failed to
maintain sobriety. After initially testing positive for methamphetamine in
November and December 2013, he tested clean for a period of time, but
tested positive again in February 2014. Father admitted to a relapse in
May and did not consistently test clean again until October 2014.2

¶7            DCS changed the case plan to severance and adoption. In
September 2014, DCS moved to terminate Father’s parental rights,
alleging he was incapable of discharging parental responsibilities because
of a history of chronic drug abuse and grounds to believe that inability
would continue for a prolonged indeterminate period. See A.R.S. §
8-533(B)(3). DCS also alleged Father had substantially neglected or
willfully refused to remedy the circumstances that caused the children to
be in an out-of-home placement. See A.R.S. § 8-533(B)(8)(b).

¶8            At the severance trial, Father admitted a lengthy history of
substance abuse, testifying, “I’ve tried everything but heroin.” Even
facing the loss of his children, Father tested positive for
methamphetamine in December 2014. Then, despite testing clean for a
time thereafter, he tested positive again in March — just weeks before the
severance trial.

¶9            The superior court terminated Father’s parental rights. The
court found that DCS had not proven the time-in-care allegation because it
could not find that Father “did not make an appreciable, good faith effort
to participate in services.” The court did conclude, however, that DCS
met its burden of proof as to the chronic substance abuse ground. The


2     During some of that time period, Father could not test because he
was incarcerated.



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                       DEREK M. v. DCS, M.M., D.M.
                          Decision of the Court

court also found that termination would be in the best interests of the
children.

¶10          Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
-2101(A)(1).

                               DISCUSSION

¶11            Father contends DCS failed to make diligent efforts at
reunification and failed to prove that his substance abuse would continue
for a prolonged, indeterminate period. However, Father failed to object to
the adequacy of services in the superior court.3 See Shawanee S. v. Ariz.
Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014) (absent an objection
to the type or manner of services, parent waives the right to challenge the
adequacy of reunification services on appeal). But even considering his
argument on the merits, the record does not support Father’s contention.

¶12             We view the evidence in the light most favorable to
sustaining the superior court's findings because it is in the best position to
“weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings.” Christina G. v. Ariz. Dep’t of
Econ. Sec., 227 Ariz. 231, 234, ¶ 13 (App. 2011). We accept the findings if
supported by reasonable evidence and 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).

I.     Adequacy of Reunification Services

¶13           To order severance based on A.R.S. § 8-533(B)(3), the court
must find that DCS made reasonable efforts to reunify the family or that
such efforts would have been futile. Jennifer G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 450, 453, ¶ 12 (App. 2005). DCS was required to give Father the
time and opportunity to participate in programs that could help him
become an effective parent. See Maricopa Cty. Juv. Action No. JS–501904,
180 Ariz. 348, 353 (App. 1994). DCS must pursue measures with “a
reasonable possibility of success,” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 187, ¶ 1 (App. 1999), but the agency is not required “to
provide every conceivable service or to ensure that a parent participates in
each service it offers.” Christina G., 227 Ariz. at 235, ¶ 15.

3    The severance trial transcripts offer the only indication Father was
unhappy with services.



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                     DEREK M. v. DCS, M.M., D.M.
                        Decision of the Court

¶14           DCS offered numerous services designed to reunite Father
with the children. Admittedly, some services were delayed or had gaps in
availability due to circumstances outside Father’s control. But even when
nothing prevented his participation, Father’s compliance with the
substance abuse treatment was lackluster at best, and he continued to
abuse methamphetamine. Under these circumstances, the juvenile court
could reasonably conclude that DCS gave Father sufficient time and
opportunity to participate in services that could enable him to maintain
sobriety and parent his children.

II.   Sufficiency of the Evidence

¶15            To support severance under § 8-533(B)(3), DCS was required
to prove by clear and convincing evidence that reasonable grounds
existed to believe that Father’s substance abuse would continue for a
prolonged and indeterminate period. See Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377–78, ¶¶ 15, 25 (App. 2010). Father argues “the same
concerns that led the Court to find that the time-in-care ground for
severance had not been proven should have also caused a similar finding
with respect to the substance abuse provision of section 8-533(B).” We
disagree.

¶16           Unlike the time-in-care provision, a good faith effort to
participate in services — by itself — does not bar severance under §
8-533(B)(3). The severance requirements of § 8-533(B)(3) are materially
different from those relating to the time-in-care ground. Compare A.R.S. §
8-533(B)(3) (parent must be unable to discharge parental responsibilities
due to substance abuse and “the condition will continue for a prolonged
indeterminate period”) with A.R.S. § 8-533(B)(8)(b) (parent must have
“substantially neglected or wilfully refused to remedy the
circumstances”).

¶17          The superior court concluded:

      Father continues to use methamphetamines. He has a
      lengthy history of substance abuse with some periods of
      sobriety and a long period in 2014 when he did not test at
      all. Father has not been able to complete any substance
      abuse program. He used methamphetamines shortly before
      this trial. Despite services being offered, Father has been
      unable to stop using substances. These issues have been
      ongoing throughout this entire dependency case.




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                     DEREK M. v. DCS, M.M., D.M.
                        Decision of the Court

The record amply supports these findings.            Father’s progress in
addressing his chronic substance abuse was poor. A reasonable trier of
fact could conclude that his relatively brief periods of sobriety were
insufficient given his significant history of abuse and his inability to
abstain even when loss of his parental rights was imminent. See Raymond
F., 224 Ariz. at 379, ¶ 29. “The interests in permanency for the children
must prevail over Father’s uncertain battle with drugs.” Id. The evidence
was sufficient for the court to find that Father’s substance abuse would
continue for a prolonged indeterminate period. See A.R.S. § 8-533(B)(3).

                            CONCLUSION4

¶18          We affirm the judgment of the superior court.




                               :ama




4        Father has not challenged the best interests determination, so we
need not address that issue. We note, however, that the children had been
in care most of their lives and were in an adoptive placement capable of
providing stability and permanency.




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