THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

GOULD, Judge.

¶1 Karla P. ("Mother") appeals the superior court's order terminating her parental rights to her children Eric and Andrea. Mother argues that the Arizona Department of Economic Security ("ADES") failed to prove grounds for severance by clear and convincing evidence and the court abused its discretion in admitting undisclosed expert testimony.

Facts and Procedural Background

¶2 On February 18, 2010, police entered Mother's home to arrest her for several drug charges. The police were accompanied by workers from Child Protective Services ("CPS"). The police and CPS workers observed rotting food, garbage, a broken toilet that had been left overflowed and animal and human feces throughout the house. The house was so cluttered it was difficult to move around, and there was no edible food. Police also found a crack pipe with residue on a table and cocaine in Mother's pocket.

¶3 Because the home was a safety hazard, after Mother's arrest the children were removed from the home and taken into temporary custody. ADES subsequently filed a petition for dependency, and the children were declared dependent in March 2010. The children were initially placed with their maternal grandmother; however, when family health problems required the grandmother to move to Mexico, the children were moved to foster care.

¶4 Upon being released from jail,1 Mother participated in the services offered as part of her case plan of family reunification. She attended substance abuse treatment, was provided a parent aide and parenting classes, submitted to a psychological consultation and evaluation, performed random urinalysis testing and had weekly visitations with her children. Following her psychological evaluation Mother was diagnosed with amphetamine abuse and cannabis abuse (both in remission), depressive disorder, and passive/aggressive and dependent traits.

¶5 Mother was initially compliant with the reunification services and her probation, and she tested negative on her random urinalysis tests. However, Mother tested positive for amphetamines and methamphetamine in November 2010 and April 2011 and she tested positive for alcohol in May 2011. Despite these test results, Mother denied using any illegal substances. Mother also became non-compliant with her drug testing requirements. Mother failed to call TASC regarding her urinalysis tests on numerous occasions, missed several urinalysis tests, and submitted several diluted urine samples.

¶6 In addition, Mother's progress reports indicated she was not making the necessary behavior changes required for reunification. For example, her attendance for substance abuse treatment at TERROS became inconsistent and she continued to significantly minimize her history of drug abuse.

¶7 In July 2011, ADES changed the case plan to severance and adoption; the department filed a motion to terminate Mother's parental rights to Andrea and Eric in August.2 The petition alleged Mother's parental rights should be severed due to: (1) neglect, (2) Mother's chronic drug abuse, and (3) the children's presence in an out-of-home placement for a total of fifteen months. The petition further alleged it was in the children's best interests to terminate the parent-child relationship because they were in need of permanency and stability in a drug-free environment.

¶8 During the severance trial, Mother testified that she did not have a substance abuse problem and that she was willing and able to parent her children. Mother presented various explanations for her positive drug tests; she claimed they were caused by a combination of diet pills, her use of an alcohol-based hand sanitizer, and her accidentally touching drugs. Mother's case manager testified that although Mother had participated in the family reunification services, she failed to change her behavior in order to allow her children to return to her. The case manager testified that Mother's failure to make these changes would continue for a prolonged period of time and it was in the children's best interests to remain in their current foster home placement.

¶9 The court granted ADES' petition to terminate Mother's parental rights. The court found grounds to sever under A.R.S. § 8-533(B)(3) (chronic substance abuse) and A.R.S. § 8-533(B)(8)(c) (fifteen months in care). The court found that Mother's testimony regarding her drug and alcohol use was not credible and that her participation in reunification services was "outweighed by her inability to be honest about her substance abuse issues with her counselors, CPS and the Court." In its ruling, the court concluded that although Mother cleaned up her house, participated in services, and obviously loved her children, she "has been unable to honestly and truthfully deal with her substance abuse problem," which continued to put the children at risk. The court further found that severance was in the children's best interests because the children were adoptable and deserved permanence and stability. Mother timely appealed.

Discussion

¶10 On appeal, Mother challenges the sufficiency of the evidence supporting the grounds for terminating her parental rights. She argues there was no evidence that she had a chronic substance abuse problem. Mother also contends that ADES failed to prove that she was unable to remedy the circumstances that caused her children to be removed or that she would not be capable of parenting her children in the near future.

¶11 "We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings; we will only reject the court's findings if no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds." Id. at ¶ 3 (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000)).

¶12 Clear and convincing evidence supports the juvenile court's termination of Mother's parental rights under A.R.S. § 8-533(B)(8)(c). To terminate Mother's parental rights under § 8-533(B)(8)(c), ADES was required to prove: (1) "it had made a `diligent effort to provide appropriate reunification services,'" (2) "[Mother] had been unable to remedy the circumstances causing [her children] to be in court-ordered, out-of-home care for fifteen months or longer," and (3) there was "`a substantial likelihood that [Mother would] not be capable of exercising proper and effective parental care and control in the near future.'" Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 17, 219 P.3d 296, 303 (App. 2009) (quoting A.R.S. § 8-533(B)(8)(c)).

¶13 ADES' duty to provide reunification services mandates that the department give a parent "the time and opportunity to participate in programs designed to improve the parent's ability to care for the child." Jordan C., 223 Ariz. at 94, ¶ 20, 219 P.3d at 304. ADES need not make futile efforts; however, it must "undertake measures with a reasonable prospect of success." Id. (quoting Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971 P.2d 1046, 1053 (App. 1999)).

¶14 ADES made diligent efforts to provide Mother with appropriate reunification services. The CPS case manager testified that ADES provided Mother with substance abuse assessments and treatment through TERROS, random urinalysis testing through TASC, a parent aide, individual counseling, psychological evaluations and treatment, a bonding assessment, supervised visitation, and communication with Spanish assistance. Over the course of fourteen months Mother completed substance abuse treatment. The long duration of treatment was due, in part, to Mother's positive drug tests which caused the services to be extended. For example, following a positive drug test in November 2010, Mother was transferred from standard outpatient treatment to intensive outpatient treatment. Because Mother continued to test positive for drugs despite having completed substance abuse treatment, ADES did not provide unsupervised visitation, and the department ultimately changed the case plan to severance and adoption.

¶15 The record also supports the court's determination that Mother was unable to remedy the circumstances that required the children to be placed in out-of-home care and there was a substantial likelihood Mother would not be capable of parenting her children in the near future. At the time of the severance hearing the children had been in out-of-home care for twenty-four months. During these twenty-four months, Mother was unable to remedy the primary circumstance that caused her children to be placed in out-of-home care: her substance abuse. At the outset of the dependency Mother was diagnosed with amphetamine abuse and cannabis abuse, both in remission. As a result, she was provided outpatient substance abuse treatment and random urinalysis testing. Although Mother completed the substance abuse treatment, she tested positive for alcohol on March 22, May 17, and June 6, 2011. Mother also tested positive for amphetamines on November 22, 2010 and April 25, 2011, and for cocaine on December 9, 2011; she failed to call TASC on numerous occasions and missed drug tests on December 1, 2010 and February 10, 2011; and she submitted several diluted urine samples.

¶16 The record supports the court's conclusion that Mother failed to demonstrate a drug-free, stable lifestyle necessary to regain custody of her children. Throughout her participation in services, Mother was not open and honest about her drug use. Mother significantly minimized her history of drug abuse, and refused to acknowledge positive drug tests. The case manager testified that Mother had not made the necessary behavior changes to allow her to regain custody of her children and she continued to deny drug use despite continuing to test positive for drugs. Mother claimed her positive oral swab for alcohol was caused by hand sanitizer she used. She explained that a combination of diet pills she was taking caused her to test positive for amphetamines in November 2010. And she claimed that her positive drug test in April 2011 was caused by touching drugs that were left on a table at her cousin's house. A lab technician from TASC testified that none of Mother's explanations were possible causes of the positive test results. As the case manager opined, Mother's failure to make changes, and her refusal to speak honestly about her drug use, indicates that her inability to parent, due to substance abuse problems, will continue for a prolonged period of time.

¶17 Psychologist George Joseph Bluth, Ph.D., who performed a consultation and best interests assessment on Mother, also testified at trial. Dr. Bluth testified that Mother "continued to be unstable, and there continued to be questions about [Mother's] ongoing drug use." Dr. Bluth opined that despite Mother's participation in services, her substance abuse would continue for a prolonged period of time.

¶18 Mother argues that the record only shows occasional drug use, not a substance abuse problem; however, the record does not support Mother's contention. Mother's refusal to acknowledge her history of drug use and the evidence of recurring relapses indicates she has been unable to remedy her substance abuse issues. Mother's repeated denials and minimization are characteristics of drug addiction. Mother's statements regarding her drug use are inconsistent at best. During an intake assessment at TERROS Mother stated she used marijuana eleven times, and she had started using marijuana three months before she was arrested in February 2010. At another time during her psychological consultation, she admitted to using marijuana two to three times a week. However, Mother denied using any illegal substance including methamphetamine and cocaine, despite the fact that when she was arrested she had cocaine in her pocket and a "crack pipe" with residue in it lying on the table. Furthermore, Mother later self-reported an amphetamine and cannabis addiction.

¶19 Mother also challenges the court's admission of the state's expert regarding her November 2010 positive test for amphetamines/methamphetamines. "We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion." S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 21, ¶ 32, 31 P.3d 123, 134 (App. 2001).

¶20 During the trial, Mother sought to explain her November 2010 positive test result by testifying that she took a combination of diet pills during this time period that, according Mother, would test positive for amphetamines/methamphetamines. To rebut this testimony, ADES presented the testimony of Jamie Anderson, a TASC lab technician. Anderson testified regarding research she had performed to determine whether Mother's diet pills could have caused her positive test result for amphetamines/methamphetamines. Anderson testified that based on her research, the only possible causes of Mother's positive results were street methamphetamine, prescription medication for ADD, or a Vicks inhaler.

¶21 Mother objected to the technician's testimony on grounds it had not been timely disclosed. Mother asserted that if Anderson's testimony had been timely disclosed, she "might have been able to do independent testing."

¶22 The court denied Mother's objection. The court concluded that ADES' disclosure statement, which indicated Anderson was "[e]xpected to testify about the testing offered to mother, results of those test and any other relevant matters," constituted adequate disclosure of Anderson's testimony regarding the diet pills.

¶23 The record supports the court's conclusion that Anderson's testimony was adequately disclosed by the State. Mother raised the issue of the diet pills, and based on ADES' disclosure statement, Mother should not have been surprised by Anderson's rebuttal testimony as to the potential effect of the diet pills on her drug test. Moreover, absent some evidence in the record, we will not speculate as to whether an independent test "might" have contradicted the testimony of the State's expert. Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980) ("A trial court's rulings on the admittance or exclusion of evidence will not be disturbed on appeal unless a clear abuse of discretion appears and prejudice results therefrom.").

Conclusion

¶24 For the reasons above, we affirm the juvenile court's order severing Mother's parental rights to her children, Andrea and Eric.

MAURICE PORTLEY, Presiding Judge, JON W. THOMPSON, Judge, concurring.