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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

BRANDI C., JESSE G.
, Appelants
,

v.

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

.

N o . 1 CA

- J V 2 0

- 0 239

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 C ounsel for Appellee Department of Child Safety FILED 12-15-2020BRANDI C
., JESSE G. v. DCS Decision of the Court

2 MEMORANDUM DECISION
Judge Paul J. McMur die 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 Appellant s Brandi C. (“Mother”) and Jesse G. (“Father”) appeal the juvenile court’s order terminating their pa rental rights to their child
, John

. 1 For the following reasons
, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 A fter officers arrested Moth er and Father at a traffic stop in Prescott Valley
, t he 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 h e 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 b ut 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, D CS filed a dependency petition alleging Mother and Father each were unabl e 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 unexplai ned 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 c hild ’ s identity, we refer to him by a pseudonym.BRANDI C
., JESSE G. v. DCS Decision of the Court

3 John was adjudic ated dependent regarding Fat her 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 additio n 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 metha mphetamine during this perio d 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

- abus e 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 psycho logical 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 provide d F ather 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 entir ely. After Mother and Father stopped participating, DCS stopped prov iding 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 gr ounds 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. T he court foun d 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 illeg a l substances
, which made it reasonable to believe their substance abuse would continue indef initely . The court further found DCS had made reasonable efforts to reunify the family.BRANDI C
., JESSE G. v. DCS Decision of the Court

4 ¶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 cour t’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 t wo 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 partie s, 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 co urt may terminate a parent’s rights if
the parent is unable to discharge parental responsibilities be cause of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grou nds to believe that the condition will continue for a prolonged indeterminate period.

B efore a court may sever the parent

- child relationship under A.R.S. § 8

- 533, the S tate must establish it made reasonable efforts to reunify the family. Mary Ellen C. v. ADES , 193 Ariz. 185, 192, ¶ 33 (App. 1999)

. The S tate 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 S tate 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 a nd 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 reun ification was supported by appropriate evidence on this record

.BRANDI C
., JESSE G. v. DCS Decision of the Court

5 ¶14 Father argue s 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 raise d it for the fi rst 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 ju venile 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 effort s were reasonable despite its inability to provide additional service s

. And b ecause we conclude DCS made reasonable efforts to reunify Father with John
, we need not consider whether Fa ther waived the issue. City of Tempe v. Fleming , 168 Ariz. 454, 456 (App . 1991) ( W hether 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 ha ve reasonably concluded she was engaged in chronic substan ce abuse.

¶17 T he juvenile court explicitly found that Mother’s testimony , in which she claimed her marijuana had been laced with methamphetamine
, was not cre dible. Throughout this case, Mother was fou nd carrying methamphetamine paraphern alia, tested positive for methamphetamine on several occasions, and testified that she ha d used methamphetamine for over ten years, starting at age thirteen or fourteen

. Given this evidence , we conclude the juvenile cou rt’s finding s 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 rem edy 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 Ar iz. at 251, ¶ 27.BRANDI C
., JESSE G. v. DCS Decision of the Court

6 CONCLUSION

¶19 We affirm the juvenile court ’s order terminat ing Mother ’s and Father’s parental rights.