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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             DESTINY F., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, C.F., D.B., Appellees.

                               No. 1 CA-JV 19-0260
                                 FILED 1-28-2020


            Appeal from the Superior Court in Maricopa County
                              No. JD35938
                The Honorable Randall H. Warner, Judge

                                   AFFIRMED


                                    COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Doriane F. Zwillinger
Counsel for Appellee DCS
                         DESTINY F. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Destiny F. ("Mother") appeals the superior court's order
terminating her parental relationship with her two children, C.F. and D.B.
For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            C.F. was born substance-exposed to marijuana in 2013, and
Mother tested positive for opiates during her pregnancy with D.B., who
was born in 2015. In April 2018, the Department of Child Safety ("DCS")
received a report that Mother and D.B.'s father were abusing drugs in the
home and had engaged in domestic violence. Mother admitted to
investigators she used cocaine and marijuana. DCS also observed that the
children and the home were dirty, and D.B. appeared undernourished.
DCS put a safety plan in place, offered Mother in-home case-management
services, and asked her to pursue substance-abuse treatment. Mother did
not engage in substance-abuse treatment, prompting DCS to take custody
of the children and file a dependency petition in June 2018. The superior
court found the children dependent in August 2018.

¶3              During the dependency, DCS referred Mother for substance-
abuse testing and treatment several times, but she barely participated. As
a result, all five of her referrals to TERROS for substance-abuse treatment
were closed. She tested positive for cocaine and marijuana in June 2018 and
then did not test again until 2019. Mother submitted one negative test in
March and another one in May 2019. She then submitted five negative tests
between June 18 and July 5, 2019, but thereafter stopped testing and never
reengaged with testing.

¶4             DCS also referred Mother for a parent aide. Mother engaged
in the visits but attended only one of her skills sessions, causing the parent
aide to close the referral. DCS later provided Mother supervised visitation
from February to May 2019, and she participated. Mother also had
opportunities to visit the children through their placement, but she did not



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                        DESTINY F. v. DCS, et al.
                         Decision of the Court

do so. Finally, Mother did not provide DCS with evidence of stable housing
or income and maintained only sporadic contact with her DCS case
manager.

¶5            In February 2019, DCS moved to terminate Mother's parental
relationship with the children on grounds of abandonment and substance-
abuse. See Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1), (3)
(2020).1 DCS later amended its motion to include the ground of nine-
months out-of-home placement under § 8-533(B)(8)(a). After a termination
adjudication hearing in July 2019, the superior court ordered Mother's
parental rights terminated on the grounds of substance abuse and nine
months' time in care.2 Regarding services, the superior court found that
DCS had

      made reasonable efforts to preserve the family relationship
      and provided Mother the time and opportunity to participate
      in programs designed to improve her ability to care for the
      Children.     The court makes this finding despite the
      Department's failure to continue Mother's visits with the
      Children after the supervised visit referral expired in May
      2019. "Reasonable efforts" does not require the Department
      to be flawless; rather, the issue is whether, on the totality of
      the circumstances, the Department made reasonable efforts to
      preserve the family relationship. Mother should have had
      additional visits after May, but that would not change the fact
      that she is unable to parent due to chronic substance abuse.

Mother timely appealed the court's order. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A)
(2020) and 12-120.21(A)(1) (2020).

                              DISCUSSION

¶6            On appeal, Mother argues insufficient evidence supports the
court's finding that DCS made reasonable efforts to provide her with
appropriate reunification services. Mother points to DCS's failure to refer
her for a psychological evaluation and counseling "at a time when she was


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.

2     At the termination hearing, the superior court granted DCS's oral
motion to withdraw the abandonment ground.


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                          DESTINY F. v. DCS, et al.
                           Decision of the Court

providing negative" urinalysis tests, and DCS's failure to provide her with
visits after May 2019. DCS argues that Mother waived any argument about
services, but because Mother's counsel raised the issue at the termination
hearing, we decline to apply waiver. See Shawanee S. v. Ariz. Dep't of Econ.
Sec., 234 Ariz. 174, 179, ¶¶ 17-18 (App. 2014) (applying waiver when parent
offered no challenge to services, either before the termination hearing or at
the hearing itself).

¶7             When seeking termination of a parent's rights on grounds of
substance-abuse or nine-months out-of-home placement, DCS must make
diligent, or reasonable, efforts to provide the parent with appropriate
reunification services. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450,
453, ¶¶ 12-13 & n.3 (App. 2005). To satisfy this requirement, DCS must
provide a parent with "the time and opportunity to participate in programs
designed to help her become an effective parent." Maricopa County Juv.
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS, however, is not
required to provide every conceivable service, nor must it ensure that the
parent participates in each service it offers. Id. DCS need not undertake
futile rehabilitative efforts but must provide services that have a reasonable
prospect of success. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185,
192, ¶ 34 (App. 1999).

¶8             As the superior court found, DCS's efforts to provide Mother
with services were not flawless. DCS did not offer Mother any services
focused on domestic violence. Additionally, as the superior court noted,
absent a court order to the contrary, DCS should have ensured continuing
visits between Mother and the children in May, June and July 2019. See
Maricopa County Juv. Action No. JD-5312, 178 Ariz. 372, 374-75 (App. 1994)
(parents retain a fundamental right to associate with their children unless
that right is judicially terminated). On this record, however, the lapses
Mother alleges are immaterial to the termination order, which focuses
solely on Mother's unresolved substance-abuse issues.

¶9            DCS's main concern throughout the dependency was
Mother's substance abuse, and Mother does not dispute that DCS provided
her with the time and opportunity to participate in substance-abuse testing
and treatment. Mother argues DCS should have referred her for a
psychological evaluation and counseling a few weeks before the
termination hearing, during a two-week period in which she was providing
consistently negative drug tests. But her failure to test consistently before
and after those two weeks undermines her argument. After that two-week
period, Mother stopped testing and never established lasting sobriety or
demonstrated consistent progress in overcoming her substance-abuse


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                        DESTINY F. v. DCS, et al.
                         Decision of the Court

issues. Notably, Mother does not explain how a psychological evaluation
or counseling would have had a reasonable prospect of success in helping
her overcome her addictions – the main barrier to her ability to parent the
children at the time of the termination hearing. On this record, reasonable
evidence supports the court's finding that DCS made reasonable efforts to
provide Mother with appropriate services.3

                              CONCLUSION

¶10          For the foregoing reasons, we affirm the order terminating
Mother's parental rights to the two children.




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




3      Because reasonable evidence supports this element under the
substance-abuse ground, we need not consider Mother's arguments as to
the nine-months out-of-home placement ground. See Mary Lou C. v. Ariz.
Dep't of Econ. Sec., 207 Ariz. 43, 49, ¶ 14 (App. 2004).


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