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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                         CHRISTOPHER H., Appellant,

                                         v.

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

                              No. 1 CA-JV 19-0035
                                FILED 8-29-2019


            Appeal from the Superior Court in Maricopa County
                              Nos. JD23002
                                   JS18249
                    The Honorable Sara J. Agne, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
                     CHRISTOPHER H. v. DCS, M.H.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


C R U Z, Judge:

¶1           Christopher H. (“Father”) appeals the superior court’s order
terminating his parental rights, challenging only the court’s finding that the
Department of Child Safety (“DCS”) made diligent efforts to provide
appropriate reunification services. For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2           Father and Heidi C. (“Mother”) are the parents of M.H., who
was born in April 2015.1 M.H. was born substance-exposed to methadone
and was hospitalized in intensive care for six weeks. DCS took custody of
M.H. when he was discharged in June 2015 after Mother and Father failed
drug tests and visited M.H. fewer than five times since birth.

¶3            The superior court found M.H. dependent as to Father in
February 2016. It also approved concurrent case plans of family
reunification and severance and adoption. DCS offered Father substance-
abuse treatment and testing, parent-aides and visitation, a
neuropsychological evaluation, and a bonding assessment.

¶4           Father completed a substance-abuse assessment with
TERROS and was referred to an intensive outpatient treatment program;
Father explained he used marijuana daily and disclosed he used cocaine
and heroin as a teenager. TERROS closed out the referral after Father
refused further treatment. When Father participated in substance-abuse
treatment, he disrupted the sessions and stated that he did not need
treatment.

¶5           Throughout the dependency, Father never successfully
completed any substance-abuse services and testified that he rebuffed
treatment because it was “[not] a good fit for [him].” Father tested positive
for marijuana throughout the case. The superior court found he “was

1      The court’s order also severed Mother’s rights, but her rights are not
at issue in this appeal.


                                      2
                     CHRISTOPHER H. v. DCS, M.H.
                         Decision of the Court

generally compliant in providing DCS with his medical marijuana card,”
though the record reflects Father engaged in unauthorized marijuana use
during certain periods. Father testified that he would stop using marijuana
daily if he had custody of M.H., but he had no plan to keep M.H. away from
the substance.

¶6            Father participated in supervised visits with M.H., except
while Father moved to California from August 2017 to May 2018, when
M.H. temporarily returned to Mother’s custody. During visits, Father
struggled to provide for and control M.H., needing assistance to redirect
M.H.’s problematic behavior. The DCS case manager testified that she was
concerned about Father’s ability to parent and explained that Father had
“erratic behaviors” during visits. Father also received parent-aide services,
and one-on-one parenting instruction, which provided housing and
employment resources, taught budgeting and time management skills, and
parenting techniques.

¶7             Dr. Levitan performed two neuropsychological evaluations of
Father—one in 2016 and a second in 2018—and testified that the results of
both evaluations were consistent. In reviewing his background, Father
explained he suffered a traumatic brain injury caused by a motorcycle
accident when he was nineteen years old. Dr. Levitan diagnosed Father
with Borderline Intellectual Functioning and Unspecified Neurocognitive
Disorder. At trial, Dr. Levitan testified that based on the evaluation, he had
“concerns about [Father’s] lack of insight, about the substance use, about
the severity of the neurocognitive deficits, as well as the intellectual
functioning, which suggests a likely lifelong need for services or a support
system.” While Dr. Levitan recommended Father participate in substance-
abuse counseling, solution-focused therapy, and occupational therapy, he
further testified that it was unlikely Father would benefit from those
services because Father did not believe in the validity of the services and
showed no significant changes or improvements in over two years between
Father’s neuropsychological evaluations. Dr. Levitan also opined that
Father’s cognitive limitations were likely to persist for an indeterminate
time and would prevent him from discharging his parental responsibilities
in the future.

¶8             Father completed a bonding assessment in 2018. The
assessment reported that M.H. “did not appear to have a healthy
attachment to Father.” The assessment also noted that Father “is unable to
handle [M.H.] when he is acting out . . . [Father] is missing the fundamental
concepts of parenting.” The DCS case manager testified that DCS told
Father to self-refer for occupational therapy, which DCS does not offer. The


                                      3
                      CHRISTOPHER H. v. DCS, M.H.
                          Decision of the Court

superior court found good cause for the self-referral and explained that
“occupational therapy for Father is more likely the type of service that
would assist Father individually regarding his deficits from his traumatic
brain injury—not the province of [DCS], which comprises services likely to
assist the family as a whole.” The DCS case manager also testified that
Father participated in individual counseling. He completed seventeen
sessions with Track House Life Counseling; typically, when a parent can
benefit from that service the counselor requests an extension, but here there
was no extension request.

¶9            DCS filed a petition to terminate Father’s parental rights to
M.H. on the chronic substance abuse, mental deficiency, and nine- and
fifteen-months in an out-of-home placement grounds. See Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(3), (B)(8)(a), and (B)(8)(c).

¶10            The superior court held a contested termination hearing and
received testimony from Father, Dr. Levitan, and the DCS case manager.
The court issued a detailed sixteen-page ruling terminating Father’s rights
on all grounds alleged. The court found DCS provided Father with
appropriate services and that further efforts would be futile. The court
determined that DCS had made diligent efforts and found termination was
in the best interests of M.H.

¶11           Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

                               DISCUSSION

¶12            We review the superior court’s order terminating a parent’s
rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 47, ¶ 8 (App. 2004). We view the evidence and any reasonable
inferences in the light most favorable to sustaining the court’s decision, and
will affirm a termination order that is supported by reasonable evidence.
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).

¶13           The right to custody of one’s child is fundamental but not
absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). When DCS seeks termination of a parent-child relationship, it must
prove, by clear and convincing evidence, the existence of at least one
statutory ground under A.R.S. § 8-533(B); Id. at 249, ¶ 12, and, by a
preponderance of the evidence, that termination is in the best interests of
the child, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Father does
not contest the superior court’s best-interests findings.



                                       4
                     CHRISTOPHER H. v. DCS, M.H.
                         Decision of the Court

¶14            The superior court found DCS met its burden of proof as to
four statutory grounds against Father: (1) prolonged and chronic substance
abuse, A.R.S. § 8-533(B)(3); (2) mental deficiency, A.R.S. § 8-533(B)(3); (3)
nine-months in an out-of-home placement, A.R.S. § 8-533(B)(8)(a); and (4)
fifteen-months in an out-of-home placement, A.R.S. § 8-533(B)(8)(c). These
grounds require a finding that DCS made reasonable efforts to reunify the
family or that such efforts would have been futile, Mary Ellen C. v. Ariz.
Dep’t of Econ. Sec., 193 Ariz. 185, 191-92, ¶¶ 31-34 (App. 1999), and proof
that DCS made a “diligent effort to provide appropriate reunification
services,” Jordan C., 223 Ariz. at 93, ¶ 17.

¶15            Father contends the superior court erred in finding that DCS
made a diligent effort to provide appropriate reunification services and
primarily relies on Mary Ellen C., where we reversed a termination order
after finding that the Department had failed to make a reasonable effort to
rehabilitate a mentally ill parent to preserve the family. 193 Ariz. at 193-94,
¶¶ 42-44. Specifically, Father argues that DCS failed to meet its obligation
by not “offer[ing] him occupational therapy and solution-focused therapy”
as recommended by DCS’ “consulting expert.” We disagree.

¶16          DCS argues Father waived his arguments by failing to
challenge DCS’ effort to provide services throughout the dependency and
raising the issue for the first time on appeal. Regardless of waiver,
reasonable evidence supports the superior court’s findings that DCS made
reasonable and diligent efforts to provide reunification services.

¶17            To satisfy DCS’ obligation to provide reunification services,
DCS must prove it “made a reasonable effort to preserve the family.” Id. at
192, ¶ 33 (citation omitted). This requires DCS to “undertake measures with
a reasonable prospect of success” and “provide a parent with the time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child.” Id. at 192, ¶¶ 34, 37 (citation omitted). DCS
need not provide “every conceivable service.” Id. at 192, ¶ 37. DCS is also
not required to undertake rehabilitative measures that are futile. Yavapai
Cty. Juv. Action No. J-9956, 169 Ariz. 178, 180 (App. 1991). DCS need only
undertake those rehabilitative measures “with a reasonable prospect of
success.” Mary Ellen C., 193 Ariz. at 192, ¶ 34. DCS fails to “make a
concerted effort to preserve the parent-child relationship when it neglects
to offer the very services that its consulting expert recommends.” Id. at 192,
¶ 37 (quotations omitted).

¶18          In Mary Ellen C., the Department had waited “more than a
year after removing the child before referring a mother with a serious


                                      5
                     CHRISTOPHER H. v. DCS, M.H.
                         Decision of the Court

mental illness for a psychological evaluation.” Id. at 192, ¶ 35. The
psychologist recommended intensive mental-health services and a
psychiatric evaluation for the mother. Id. at 187, ¶ 9. Although the
psychologist doubted that the mother could resolve her mental-health
issues in less than a year, he suggested that “intensive psychiatric services
might turn [her] around sooner.” Id. at 188, ¶ 9. The Department then
delayed another three months before it referred the mother to a mental-
health provider. Id. at 192, ¶ 35. It “never followed up sufficiently to secure
. . . records of her progress” and so never learned that the services being
provided were inconsistent with the “intensive psychiatric services”
recommended by its consultant. Id. at 192, ¶¶ 35-37. We reversed the
severance and held that the “juvenile court could not reasonably conclude
that the State made a concerted or diligent or reasonable effort to preserve
the parent-child relationship” where “it neglects to offer the very services
that its consulting expert recommends.” Id. at 192-93, ¶¶ 37-42.

¶19          Unlike Mary Ellen C., here, enough evidence supports the
superior court’s finding that DCS made diligent efforts to reunify the
family. The court made detailed factual findings regarding the adequacy
of services DCS provided, such as substance-abuse assessment and
treatment, substance-abuse testing, neuropsychological evaluations,
individual counseling, parent-aide services, supervised visitation, and a
bonding assessment. Despite receiving these services, and based upon
Father’s unresolved substance-abuse issues and persistent and
irremediable mental deficiencies of indeterminate duration, the superior
court found further services would be futile and Father could not safely
parent M.H.

¶20           During the termination hearing, Dr. Levitan testified that he
referred Father to solution-focused therapy. Dr. Levitan explained that
solution-focused therapy is a modality—“a type of individual counseling,
where the counselor teaches the person skills and problem-solves with
them to overcome whatever obstacle they feel they need to overcome.” The
record shows that DCS referred Father to Track House for individual
therapy after receiving Dr. Levitan’s recommendations.

¶21           Dr. Levitan also testified that he recommended Father to
occupational counseling to help Father secure consistent employment.
However, Father’s unemployment was not the barrier to reunification
found by the court. Father testified that he received social security
disability income monthly, which provided for his basic needs and stable
housing. Moreover, there is evidence in the record that Father received
employment resources from the parent aide through TERROS.


                                      6
                     CHRISTOPHER H. v. DCS, M.H.
                         Decision of the Court

¶22            There is also evidence in the record that Father refused to
acknowledge or address his long-standing substance-abuse issues, which
Dr. Levitan opined may have contributed to Father’s severe cognitive
impairments. Father received substance-abuse treatment referrals during
the three-year dependency, and failed to complete any substance-abuse
treatment program. Throughout the case, Father claimed that TERROS was
not a good fit for him but did not follow through with the provider’s and
DCS’ efforts to provide an alternative program. The record also shows
Father’s refusal to acknowledge or resolve his substance-abuse issues.
Father testified that he had a medical marijuana card while he lived in
Arizona and used marijuana daily, and he would stop using marijuana if
he had custody of M.H. Yet Father testified that he did not have a plan for
how to keep the child away from the substance.

¶23           Despite numerous opportunities to participate in such
treatments recommended by Dr. Levitan, Father consistently avoided or
dropped out of the programs. Father testified and emphasized throughout
the three-year dependency that he did not believe he needed substance-
abuse treatment, nor did he acknowledge how his cognitive impairments
could affect his ability to parent. See J-9956, 169 Ariz. at 180 (explaining
DCS need not undertake futile rehabilitative measures). Based upon the
record, there is substantial evidence the superior court did not err.
Therefore, we find no abuse of discretion.

                              CONCLUSION

¶24           For the foregoing reasons, we affirm the termination of the
parental relationship.




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




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