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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

JEFFREY W. , Appellant
,

v.

DEPARTMENT OF CHILD SAFETY, J.W. , Appellee s

.

No. 1 CA

- JV 20

- 0350

Appeal from the Superior Court in Yavapai County

No. P1300JD2020 0 0001 The Honorable Anna C. Young , Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law , Phoenix By Robert D. Rosanelli Counsel for Appellant

Arizona Attorney General’s Office
, Mesa By Amanda Adams C ounsel for Appellee Department of Child Safety FILED 6-29-2021JEFFREY W. v. DCS, J.W. Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.

C A T T A N I , Judge:

¶1 Jeffrey W. (“Father”) appeals the superior court’s order terminating his parental rights to his son J.W. 1 For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father is the biological parent of J.W. , born in August 2019. After J.W. ’s birth, hospital staff reported to the Arizona Department of Child Safety (“DCS”) that J.W. had tested positive for illegal drugs

. At the hospital , J.W.’s mother admitted to using non

- prescribed opiates during her pregnancy. DCS then interviewed Father
, and he admitted using marijuana

— but indicated he had a medical marijuana card

— and being on a suboxone program.

¶3 A fter J.W. was discharged from the hospital , DCS initiated a safety plan and provided services, including drug testing and in

- home visits from social services

. But d uring the following three m onths, Father acted aggressively toward in

- home care personnel and refused to submit to drug tests

. ¶4 In December 2019, J.W.’s mother tested positive for methamphetamine and heroin

. DCS became concerned that Father was also using drug s , and w hen a DCS speci alist visited the home, Father fell asleep standing up while talking to the specialist. DCS requested Father submit to a drug test
, but he refused. After Father’s refusal, DCS took J.W. into care.

¶5 DCS then petitioned the court to find J.W. dependent as to Father
, and after Father pled no contest, the court adjudicated J.W. dependent in January 2020

. Following the adjudication
, the court adopted
concurrent case plan s of family reunification and severance and adoption.

1 J.W.’s mother’s parental rights were also terminated, but she is not a party to this appeal.JEFFREY W. v. DCS, J.W. Decision of the Court

3 DCS offe red Father service s , including substance abuse assessment, behavior al health intake and classes, counseling, anger management education, supervised visitation (including transportation to visits), and parenting class es

. ¶6 From January to May 2020, Father participated sporadically in services. He submitted to one hair follicle drug test that was positive for morphine, cocaine, THC, methamphetamine, amphetamine, and heroin. Instead of the eight to ten urine drug tests per month that DCS r equired, he submitted to only four

— of which two were positive for methamphetamine and amphetamine. He participated in the intake for behavioral health counseling and attended one session of individual counseling but did not participate in any classes beyo nd that

. Father never registered for parenting classes , and he missed many visitations with J.W.
, stating various excuses , including that he was busy, he forgot, or that he did n o t like the case aid e

. ¶7 In May 2020 , Father was arreste d for ten methamphetamine

- , fentanyl

- , and heroin

- related offenses. Father rejected a plea offer of 10 years in prison and is facing 20 to 25 years ’ imprisonment if convicted. Following Father’s arrest, DCS informed Father about drug classes in jail

. But Father was subsequently charged with attempting to smuggle contraband (fentanyl) into the jail, and as a result, he was unable to participate in those classes.

¶8 In June 2020, the court changed the case plan to severance and adoption
, and DCS moved to sever parental rights on grounds of chronic substances abuse and six

- months’ time

- in

- care. See A.R.S. §§ 8

- 533(B)(3), (8)( b ). Following a contested severance trial, the superior court severed Father’s parental rights based on both grounds

. Father timely appealed
, and w e have jurisdiction under A.R.S. § 8

- 2 3 5 (A).

D ISCUSSION

¶9 To terminate parental rights, a superior court must find by clear and convincing evidence at least one statutory ground for severance and by a preponderance of the evidenc e that severance is in the child’s best interest s

. Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 22 (2005). We will affirm the superior court’s order if reasonable evidence supports it
, acknowledging that the superior court is in the “best p osition 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 (App. 2009) (citation omitted)

.JEFFREY W. v. DCS, J.W. Decision of the Court

4 ¶10 Father asserts that DCS did not provide adequate reunification services

. Severance cannot be based on chronic substance abuse or six months’ time

- in

- care unless DCS first provide s services to attempt to re unify the family

. S ee Jennifer G. v. Ariz. Dep’t of Econ. Sec. , 211 Ariz. 450, 453, ¶ 12 (App. 2005) ( requiring DCS to make reasonable efforts to reunify the family under A.R.S. § 8

- 533(B) (3) ) ; A.R.S. § 8

- 533(B)( 8 ) ( b ) (requiring DCS make “a diligent effort to provide appropriate reunification services” to the parent ). In assessing whether DCS has made adequate efforts to re unify the family , the court looks to the totality of the circumstances, including the services DCS offered throughout the dependenc y and the parent’s participation in those services

. Do nald W. v. D ep’t of C

hild S afety
, 247 Ariz. 9, 22

– 23, ¶¶ 48, 49 (App. 2019). DCS need not provide “every conceivable service” or those that would prove futile. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec. , 193 Ariz. 185, 192, ¶ 34 (App. 1999) (citation omitted); Maricopa Cnty

. Juv. Action No. JS

- 501904 , 180 Ariz. 348, 353 (App. 1994). Instead, DCS fulfills its obligation when it provides a parent with the time and opportunity to participate in services th at have a “reasonable prospect of success.” Mary Ellen C. , 193 Ariz. at 192, ¶ 34.

¶11 Father argues that DCS did not provide adequate reunification services after his incarceration

. Even though Father did not contest services in the superior court and has a rguably waived this challenge on appeal
, see Shawanee S. v. Ariz. Dep ’ t of Econ. Sec. , 234 Ariz. 174, 179, ¶ 18 (App. 2014)
, we address his argument and conclude that the evidence supports a finding that DCS provided adequate reunification services.

¶12 Although Father argues that post

- incarceration services were inadequate
, his argument does not acknowledge his failure to participate in the services throughout the dependency and DCS’s efforts through out the dependency

. During the dependency, F ather missed visitations with J.W.
, failed to participate in counseling, and refused to submit to drug testing. And when Father did submit to drug tests, he tested positive for illegal substances

. Further, when Father was incarcerated
, DCS made him aware of substance abuse classes in the jail . B ut his behavior (bringing fentanyl into the jail) render ed him unable to participate in those services. Thus, the superior court did not abuse its discretion by concluding that Father failed
to participate in services and that the services DCS provided were adequate. Cf. Jordan C. , 223 Ariz. at 93, ¶ 17 ( noting the severance statutes allow the court to consider the parent’s participation when assessing the adequacy of the services DCS provided )

.JEFFREY W. v. DCS, J.W. Decision of the Court

5 CONCLUSION

¶13 The superior court’s order is affirmed.