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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDI C., JESSE G., Appelants,

v.

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

No. 1 CA-JV 20-0239

Appeal from the Superior Court in Maricopa County

No. JD36171

The Honorable Robert Brooks, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant Brandi C. 

Robert D. Rosanelli, Phoenix

Counsel for Appellant Jesse G. 

Arizona Attorney General’s Office, Tucson

By Autumn L. Spritzer

Counsel for Appellee Department of Child Safety

FILED 12-15-2020
BRANDI C., JESSE G. v. DCS

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Appellants Brandi C. (“Mother”) and Jesse G. (“Father”)

appeal the juvenile court’s order terminating their parental rights to their

child, John.

1 For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 After officers arrested Mother and Father at a traffic stop in 

Prescott Valley, the Department of Child Safety (“DCS”) became involved 

with the child. During the traffic stop, the officers discovered Mother and 

Father each had pending arrest warrants. John was in the vehicle. The 

officers searched the car and found marijuana, a marijuana pipe, a used 

methamphetamine pipe, and a bindle bag. John was initially placed into 

DCS’s temporary physical custody and then placed with his maternal aunt,

where he has remained since his removal.

¶3 Father was released shortly after his arrest. Following her 

arrest, Mother served a prison sentence for prior probation violations.

Mother was released in February 2019 but incarcerated again in December 

2019 for violating the terms of the probation sentence she received due to

the June 2018 traffic stop. She was released from this sentence in March 

2020.

¶4 In August 2018, DCS filed a dependency petition alleging

Mother and Father each were unable to provide proper and effective 

parental care and control because both parents had issues with substance 

abuse and had allegedly abused or neglected John as evidenced by an 

unexplained bruise on his forehead. Also, DCS alleged Mother was unable 

to parent because she was incarcerated. Mother did not contest the petition, 

and John was adjudicated dependent regarding Mother in September 2018. 

1 To protect the child’s identity, we refer to him by a pseudonym.
BRANDI C., JESSE G. v. DCS

Decision of the Court

3

John was adjudicated dependent regarding Father in November 2018 after 

a contested dependency hearing.

¶5 While in prison, Mother attended mandatory drug counseling 

starting in October 2018. When she was released, DCS referred her for a 

substance-abuse assessment, in addition to testing and treatment. She 

participated inconsistently, tested positive for several illegal drugs,

including methamphetamine, on multiple occasions, and did not complete 

the substance-abuse program. Mother claimed she was not intentionally 

using methamphetamine during this period and that she suspected her 

drug tests had come back positive because of laced marijuana. She admitted

she had regularly used marijuana and methamphetamine for around ten 

years, starting at age thirteen or fourteen.

¶6 DCS referred Father to a substance-abuse program five times, 

but he failed to complete the program. Father participated inconsistently 

with drug testing and tested positive for methamphetamine and marijuana

several times. DCS also provided Father with a psychological evaluation. 

As part of the assessment, the evaluator recommended DCS provide Father 

with counseling from a therapist with master’s level training to address his 

substance-abuse history. However, DCS never provided Father with this 

service.

¶7 DCS also referred Mother and Father to a parent aide who 

supervised visits with John. Mother and Father attended visitation 

sporadically and eventually stopped participating entirely. After Mother 

and Father stopped participating, DCS stopped providing the service.

Shortly before the termination hearing, Father reengaged with the DCS case 

manager, and another parent aide was referred.

¶8 In February 2020, DCS moved to terminate the parent-child 

relationship between Mother and Father and John on the grounds of 

chronic substance abuse and time in care under A.R.S. sections 8-533(B)(3)

and (B)(8)(c). After a contested termination hearing, the juvenile court 

granted DCS’s motion and terminated Mother’s and Father’s parental 

rights. The court found that Mother and Father each (1) had a history of 

substance abuse, (2) were unable to discharge their parental 

responsibilities, and (3) were chronic abusers of illegal substances, which 

made it reasonable to believe their substance abuse would continue 

indefinitely. The court further found DCS had made reasonable efforts to 

reunify the family.
BRANDI C., JESSE G. v. DCS

Decision of the Court

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¶9 Mother and Father each appealed, and we have jurisdiction 

under A.R.S. §§ 8-235(A) and 12-120.21(A)(1).

DISCUSSION

¶10 We view the evidence in the light most favorable to affirming 

the juvenile court’s order and will affirm a termination order supported by 

reasonable evidence. Christina G. v. ADES, 227 Ariz. 231, 234, ¶ 13 (App. 

2011); Jordan C. v. ADES, 223 Ariz. 86, 93, ¶ 18 (App. 2009).

¶11 The juvenile court found two separate grounds for 

termination. We will affirm the court’s order if we conclude the evidence 

was sufficient to support either basis for termination. Michael J. v. ADES, 

196 Ariz. 246, 251, ¶ 27 (2000). We do not reweigh the evidence and have 

recognized the “juvenile court as the trier of fact in a termination 

proceeding is in the best position to weigh the evidence, observe the parties, 

judge the credibility of witnesses, and resolve disputed facts.” ADES v. 

Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).

¶12 Under A.R.S. § 8-533(B)(3), a court may terminate a parent’s 

rights if

the parent is unable to discharge parental responsibilities 

because of mental illness, mental deficiency or a history of 

chronic abuse of dangerous drugs, controlled substances or 

alcohol and there are reasonable grounds to believe that the 

condition will continue for a prolonged indeterminate period.

Before a court may sever the parent-child relationship under A.R.S. § 8-533, 

the State must establish it made reasonable efforts to reunify the family. 

Mary Ellen C. v. ADES, 193 Ariz. 185, 192, ¶ 33 (App. 1999). The State is not 

required “to undertake rehabilitative measures that are futile” but must

“undertake measures with a reasonable prospect of success.” Id. at ¶ 34.

¶13 Mother and Father each argue the State failed to show it made 

reasonable efforts to reunify the family. Mother argues she did not have an 

opportunity to participate in DCS’s remedial services because she was 

incarcerated during a portion of the period John was placed out of the 

home. But DCS provided Mother with referrals for services in the periods 

before and after her prison sentences and encouraged Mother to participate 

in the services available to her in prison. The juvenile court’s finding that 

DCS made reasonable efforts at reunification was supported by appropriate 

evidence on this record.
BRANDI C., JESSE G. v. DCS

Decision of the Court

5

¶14 Father argues DCS failed to meet its obligations because it did 

not refer him to a therapist with master’s level training. DCS argues Father 

waived this issue because he raised it for the first time on appeal. The 

juvenile court directly addressed this issue in its order. The court found that 

because Father had refused to participate in the services DCS had offered, 

DCS’s efforts could be fairly characterized as reasonable despite its failure

to provide Father with master’s level counseling.

¶15 We agree with the juvenile court’s assessment. DCS is not 

required to take futile measures. Based on the evidence in the record 

regarding Father’s failure to participate in drug testing and treatment, it 

was within the juvenile court’s discretion to conclude that DCS’s efforts 

were reasonable despite its inability to provide additional services. And 

because we conclude DCS made reasonable efforts to reunify Father with 

John, we need not consider whether Father waived the issue. City of Tempe 

v. Fleming, 168 Ariz. 454, 456 (App. 1991) (Whether a litigant can raise on 

appeal an argument not made in the superior court is procedural, not 

jurisdictional, and may be suspended at the appellate court’s discretion.).

¶16 Also, Mother argues DCS failed to prove chronic substance 

abuse by clear and convincing evidence. At the termination hearing, 

Mother testified that her methamphetamine use was unintentional. As a 

result, Mother now contends the court could not have reasonably 

concluded she was engaged in chronic substance abuse.

¶17 The juvenile court explicitly found that Mother’s testimony,

in which she claimed her marijuana had been laced with 

methamphetamine, was not credible. Throughout this case, Mother was

found carrying methamphetamine paraphernalia, tested positive for 

methamphetamine on several occasions, and testified that she had used 

methamphetamine for over ten years, starting at age thirteen or fourteen. 

Given this evidence, we conclude the juvenile court’s findings regarding 

Mother’s substance abuse were supported by reasonable evidence.

¶18 Mother also argues DCS did not establish that it diligently

provided appropriate reunification services and that she substantially 

neglected or willfully refused to remedy the circumstances causing John’s

out-of-home placement as required under § 8-533(B)(8)(c). Because we 

conclude reasonable evidence supported termination on the ground of 

chronic substance abuse, we need not address this argument. Michael J., 196 

Ariz. at 251, ¶ 27.
BRANDI C., JESSE G. v. DCS

Decision of the Court

6

CONCLUSION

¶19 We affirm the juvenile court’s order terminating Mother’s and 

Father’s parental rights.