NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COUR T 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PAREN TAL RIGHTS AS TO J.G.

No. 1 CA-JV 22-0263

Appeal from the Superior Court in Maricopa County No. JD21000 The Honorable Julie Ann Mata, Judge

AFFIRMED

COUNSEL

Law Office of H. Clark Jones LLC, Mesa By H. Clark Jones Counsel for Appellant

Arizona Attorney General’s Office, Tucson By Jennifer L. Thorson Counsel for Appellee FILED 5-9-2023IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

2 MEMORANDUM DECISION

Judge Michael S. Catlett delivered th e decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.

C A T L E T T , Judge:

¶1 J.G.’s father (“Father”) appeals the superior court’s order terminating his parental rights. Be cause the superior court made all required statutory findings and reasonable evidence supports those findings, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2020, the Department of Child Safety (“DCS”) took custody of J.G. because, at birth, he and his mother tested positive for methamphetamine. At that time, Father was incarcerated for methamphetamine possession and had used the drug for over twenty years. Father did not contest the dependency petition DCS filed, and the court adjudicated J.G. dependent.

¶3 The superior court ordered DCS to provide Father with paternity testing and, upon his releas e, with substance-abuse testing and treatment and parenting services. The DCS investigator spoke with Father, and Father expressed interest in engagi ng in services after release. DCS reported it was, thereafter, difficult to maintain regular contact with Father or visit him in person due to COVI D-19 restrictions. Nonetheless, DCS asked him to self-refer for any services available in his detention facility, such as parenting classes, substance- abuse treatment, or self-improvement courses. The case manager attempted to contact Father but could not reach anyone at the prison. DCS also could not provide Father with a paternity test while in prison.

¶4 In May 2021, Father was released from custody. The case manager’s efforts to contact him prov ed unsuccessful until August when he appeared in court and provided updated contact information. The case manager then set up monthly appointm ents to discuss services and referred Father for substance-abuse testing an d treatment as well as supervised visits with J.G. Afterward, Father maintained inconsistent communication with the case manager.IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

3 ¶5 Father failed to participate in substance-abuse services, and those referrals were closed. Additionally , Father completed only five visits with J.G., the last occurring in No vember 2021—a year before the severance
trial. Around the time of the last vi sit, Father was again incarcerated on drug charges and was not released until early 2022. He did not re-engage with DCS until October 2022, when he told the case manager he did not want to participate in services until he had confirmation of paternity. Father obtained confirmation of paternity the following month but did not
act on DCS’s renewed referrals for subs tance-abuse services and visitation
before the severance trial.

¶6 DCS moved to terminate Father’s parental rights under the six- and fifteen-month out-of-home placement grounds. See A.R.S. § 8- 533(B)(8)(b)–(c). After heari ng the evidence presented at trial, the superior court severed Father’s parental rights. Under the six-month ground, the court found the following:

Father neither engaged with the Department nor did he visit with the child. While it is possible that Father engaged in some services as a condition of his probation, he did not seek a Release of Records from APD [Adult Probation Department] until October of 2022. Father acknowledged
there was no excuse for his failu re to stay in communication with his attorney, or his case manager. While he testified to doing services through APD those services were not the same expectations as the Department’s expectations. While the Court acknowledges and commends Father for his recent probation compliance, two negative drug tests for APD and one DCS test that was positive for THC do not negate years of substance abuse as evident by Father’s criminal history. Father has refused to participate in reunification services that
would have allowed him to bond with his child and demonstrate appropriate parenting capacities.

¶7 Father timely appealed. This Court has jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶8 Father challenges whether sufficient evidence supports the severance order. A parent’s right to cu stody and control of his child, while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec. , 196 Ariz. 246, 248 ¶¶ 11–12 (2000). Severance of a parental relationship may beIN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

4 warranted where the state proves one of the statutory grounds in A.R.S. § 8-533 by “clear and convincing evidence.” Id. at 248 ¶ 12. “Clear and convincing” means the grounds for se verance are “highly probable or reasonably certain.” Kent K. v. Bobby M. , 210 Ariz. 279, 284–85 ¶ 25 (2005).
The court must also find th at severance is in the child’s best interest by a preponderance of the evidence. Id. at 288 ¶ 41.

¶9 This Court “will accept the juvenile court’s findings of fact unless no reasonable evidence supports those findings, and will affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec. , 203 Ariz. 278, 280 ¶ 4 (App. 2002). This Court does not reweigh the evidence, but “look[s] only to determine if there is evidence to sustain the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec. , 207 Ariz. 43, 47 ¶ 8 (App. 2004).

¶10 Father first argues DCS failed to make diligent efforts to provide him with appropriate reunific ation services. Before seeking to terminate a parent’s rights under the six-month out-of-home placement ground, DCS must make diligent efforts to provide a parent with appropriate reunification services. See A.R.S. § 8-533(B)(8 )(b). To do so, DCS must provide a parent “with the time and opportunity to participate in programs designed to help [him] become an effective parent[.]” Maricopa Cnty. Juv. Action No. JS-501904 , 180 Ariz. 348, 353 (App. 1994). It must
undertake rehabilitative measures that have “a reasonable prospect of
success.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec. , 193 Ariz. 185, 192 ¶ 34 (App. 1999). Nevertheless, DCS is not required to ensure a parent participates in services, and it is no t required to provide futile services. Id. ; JS-501904 , 180 Ariz. at 353.

¶11 DCS asserts Father waived his argument by failing to raise it in the superior court. Indeed, Father attended several hearings and had the case manager’s contact information, bu t he never raised this issue until the severance hearing. The superior cour t considered three separate motions requesting confirmation that DCS was making reasonable efforts to finalize permanency, and each resulting minute entry contained findings that DCS
made reasonable efforts. Father did not object to any of the three motions and did not otherwise request addition al services before the severance hearing. See Shawanee S. v. Ariz. Dep’t of Econ. Sec. , 234 Ariz. 174, 178; 241 ¶¶ 13; 18 (App. 2014) (A parent must “pro mptly bring [his] concerns to the attention of the juvenile court, ther eby giving that court a reasonable opportunity to address the matter and ensure that [DCS is] in compliance with its obligation to provide appropri ate reunification services. . . .”).
Because Father did not raise his concerns with the juvenile court, we declineIN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

5 to address his arguments here. Notwithstanding waiver, we have reviewed
the record and conclude that it cont ains sufficient evidence supporting the juvenile court’s conclusion that DCS made reasonable efforts to provide Father appropriate reunification services.

¶12 Next, Father argues the court did not make required “forward-looking” findings under the six- and fifteen-month time-in-care grounds, or alternatively, these find ings were insufficient. DCS asserts Father waived his argument that the co urt failed to make required findings by failing to raise objections in the superior court. See Ariz. R.P. Juv. Ct. 317(b)(1) (party seeking to amend a fina l order based on insufficient factual findings must move for relief within twelve days of order entry); Christy C. v. Ariz. Dep’t of Econ. Sec. , 214 Ariz. 445, 452 ¶¶ 20–21 (App. 2007) (This Court generally does not consider arg uments raised for the first time on appeal, “particularly so as it relates to the alleged lack of detail in the juvenile court’s findings.”). Because Father’s argument that the court failed to make the required findings is in tertwined with his argument that the court’s findings were insufficient, and because Father’s argument misinterprets A.R.S. § 8-533(B)(8)(b), we exercise our discretion and reach
the merits. See Logan B. v. Dep’t of Child Safety , 244 Ariz. 532, 536 ¶ 9 (App. 2018) (“[T]he decision to find waiver is discretionary.”).

¶13 Father argues that the six-month ground requires a “forwardlooking finding that the parent’s impe diments to being able to parent aregoing to continue,” which the superior court failed to make. Under the sixmonth ground, the superior court may terminate a parent’s rights to his child if it finds by clear and convinci ng evidence that (1) DCS made diligent efforts to provide the parent with appr opriate reunification services, (2) the child is under three years of age and under court order, has been in an outof-home placement for six months or longer, and (3) the parent has substantially neglected or willfully refused to remedy the circumstances
that cause the child to be in an out- of-home placement, including refusal to participate in reunification services offe red by DCS. A.R.S. § 8-533(B)(8)(b).

¶14 The text of the statute does not support Father’s suggestion that the six-month ground required the superior court to find whether Father would be able to parent in the near future—there is no such requirement in the statute. Compare A.R.S. § 8-533(B)(8)(c ) (requiring the
court to find “a substantial likelihood that the parent will not be capable of exercising proper and effective pare ntal care and control in the near future”) with -533(B)(8)(b) (requiring only that the court find “the parent has substantially neglected or w illfully refused to remedy the
circumstances that cause the child to be in an out-of-home placement”). WeIN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

6 will not judicially superimpose such a statutory element. The reason behind the six-month ground similarly cuts against Father’s argument. The six-month ground, like its nine-month co unterpart, “focuses on the level of the parent’s effort to cure the circum stances rather than the parent’s success in actually doing so.” Marina P. v. Ariz. Dep’t of Econ. Sec. , 214 Ariz. 326, 329, ¶ 20 (App. 2007). It “was written ‘in response to the increasing number of children in foster care whose parents maintain parental rights but refuse to assume their parental responsibilities.’” Maricopa Cnty. Juv. Action No. JS-501568 , 177 Ariz. 571, 577 (App. 1994) (quoting Maricopa Cnty. Juvenile Action No. JS-6520 , 157 Ariz. 238, 243 (App. 1988)). Adopting Father’s argument would exacerbate that problem, not resolve it.

¶15 We next reject Father’s argument that the court’s factual findings are “not supported by reasonab le evidence, fail to show unfitness, and improperly shift[ed] the burden to Fa ther to prove his parental fitness.” Here, the main circumstances preventing J.G.’s return were Father’s history
of substance abuse and an inability to meet the chil d’s needs. The record shows Father had over a year to particip ate in DCS services after his release in May 2021. Yet he failed to maintain contact with DCS despite its attempts to engage him, submitted to a single drug test that returned positive for THC, never completed a substance-ab use assessment (which prevented treatment recommendations), and attend ed only five visits. The record, therefore, adequately supports the su perior court’s finding that Father substantially neglected or willfully refused to remedy the circumstances causing J.G.’s out-of-home placement. See A.R.S. § 8-533(B)(8)(b) (substantially neglecting or willfully refusing to remedy the circumstances includes a finding that the parent “refus[ed] to participate in [DCS] reunification services”).

¶16 Father nonetheless suggests that despite failing to participate in DCS services, he remedied his drug ab use and parenting deficits. At trial,
Father testified he had been sober fo r two years and had stable employment and housing. He also testified that he had completed treatment and various
classes at a rehabilitation center and had signed up for parenting classes through adult probation. But Father’s probation records include only a few drug tests. As the superior court fo und, those tests alone “do not negate years of substance abuse” because th ey do not demonstrate consistent sobriety. Moreover, although he ma y have established some employment and housing, Father had visited J.G. on ly five times in two years, and, as the superior court found, had failed to demonstrate appropriate parenting capacities or a significant bond with J.G.IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court

7 ¶17 Father makes another similar argument—the statute “cannot be interpreted in a manner that allows a parent” to lose his parental rights when he “ignores services, yet still manages to ‘remedy the circumstances,’” suggesting he had do ne so here. Contrary to Father’s argument, our Supreme Court recently held that the statutory severance grounds are synonymous with parent al unfitness and confirmed they “ensure[] compliance with the due proc ess requirement that a court find, by clear and convincing evidence, pare ntal unfitness when a severance is
contested.” Alma S. v. Dep’t of Child Safety , 245 Ariz. 146, 150 ¶ 9 (2018). We affirm the juvenile court’s severance decision because the record contains
sufficient evidence to establish the six-month ground and to support the juvenile court’s conclusion that Fath er had not remedied the circumstances leading to out-of-home placement. There is no indication in the record that the juvenile court severed Father’s parental rights simply because he “ignore[d] services.”

¶18 Finally, Father asserts the juvenile court improperly shifted
the burden to him to demonstrate he could care for J.G. But he cites a finding in the court’s order pertaining only to the fift een-month ground. Because we hold that reasonable evidence supports the superior court’s
termination order under the six-mont h ground, we do not address any of Father’s arguments relative to the fifteen-month ground. See Jesus M. , 203 Ariz. at 280 ¶ 3 (“If clear and convincing evidence supports any one of the statutory grounds on which the juven ile court ordered severance, we need not address claims pertaining to the other grounds.”).

CONCLUSION

¶19 We affirm.