In Re Term of Parental Rights as to J.C.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO J.C.

No. 1 CA-JV 23-0035
FILED 12-31-2024

Appeal from the Superior Court in Maricopa County
No. JD41139
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Seth Draper
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix, Tucson
By Dawn R. Williams
Counsel for Appellee

OPINION

Chief Judge David B. Gass delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown joined. Judge Andrew M. Jacobs
dissented.
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

G A S S, Chief Judge:

¶1 Mother appeals the superior court’s order terminating her
parental rights to her child.

¶2 Mother gave birth to the child in October 2020, nearly four
years ago. Mother had not yet finished high school. Mother exposed the
child in utero to marijuana and to an untreated sexually transmitted
disease. Those exposures caused the child to develop significant medical
issues. One month after giving birth, mother took the child to the
emergency room because of weight loss.

¶3 The Department of Child Safety first received a hotline report
about mother and the child three months after mother did not show up for
follow-up appointments. The Department then worked with mother under
an in-home safety plan, permitting a relative to supervise mother’s
parenting.

¶4 When the child was nine-months old in July 2021, the child
was again hospitalized for failure to thrive. At that point, the Department
sought, and the superior court ordered, an out-of-home dependency. The
child has been in care ever since. The Department specifically and
separately alleged in its petition that mother neglected the child by not
providing for the child’s “nutrition and medical care”; not providing for the
child’s “basic needs, such as food, shelter, clothing, proper supervision,
and/or medical care”; and by not “properly treat[ing] her [own] mental
health.” (Emphasis added.)

¶5 Over the next eighteen months, mother made almost no
progress toward reunification though the Department continuously offered
her services. After the child turned two years old, the Department moved
to terminate mother’s parental rights. In its termination motion, the
Department alleged mother had neglected the child based on mother failing
to feed the child properly despite knowing how to do so and mother failing
to address her mental health and substance abuse issues. The Department
further alleged the six-months-in-care (and later fifteen-months-in-care)
grounds based on mother’s failure to participate in a variety of services
offered to her. As of the termination adjudication, held more than two years
after the child came into care, mother had neither meaningfully participated
in nor completed a single reunification service offered to her.

¶6 The superior court’s decision, like most decisions terminating
parental rights, is not woven with a single thread. The court based its

2
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

findings of the fifteen-months-in-care ground on a tapestry of facts and
issues woven together to create an image. In its order granting the motion
to terminate, the superior court noted the Department alleged four
independent bases requiring out-of-home care for the child: mother’s (1)
substance abuse, (2) mental health, (3) inability to recognize and meet the
child’s basic needs, and (4) inability to meet the child’s medical needs.
Sufficient evidence supports a finding of mother’s inability to parent,
independent of whether she could meet the child’s medical needs. The
Department’s failure to advise mother about the child’s medical
appointments may have marginally inhibited her ability to meet the child’s
medical needs. But that failure is not dispositive.

¶7 As the superior court determined, clear and convincing
evidence of three statutory grounds (other than not meeting the child’s
medical needs) supports the termination. This evidence includes mother’s
ongoing substance abuse and her failure to treat her mental health issues
—including cannabis use disorder—both of which adversely affected her
ability to parent. And those problems were unlikely to resolve in the near
future after the adjudication, which was held more than two years after the
child came into care. The superior court did not clearly err when it found
the Department made diligent, though imperfect, efforts to reunify mother
with the child or when it found the termination was in the child’s best
interests.

¶8 We affirm. 1

FACTUAL AND PROCEDURAL HISTORY

¶9 This court views the evidence in an appeal from a superior
court’s order terminating a parent’s rights “in a light most favorable to
sustaining” the order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016);
Michelle M. v. Dep’t of Child Safety, 243 Ariz. 64, 66 n.2 (App. 2017) (citing
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95 ¶ 10 (App. 2009)).

1 The issuance of this opinion has been delayed because of disclosure issues

at the superior court. On October 23, 2023, the Department moved to stay
this appeal because of disclosure issues. The court lifted that stay when the
Department said the disclosure issues were resolved. On September 23,
2024, just as the court was about to issue this opinion, the Department again
asked to stay the appeal because of disclosure issues. That stay has now
been lifted.

3
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

I. The Superior Court ordered, and the Department continuously
offered, services throughout the in-home dependency and the
out-of-home foster placement until the superior court terminated
mother’s parental rights when the child was more than two years
old.

¶10 As expressed in its report for the initial dependency hearing,
the Department expected mother to learn how to provide proper care for
the child. Proper care included not abusing substances in a way that
prevented caring for the child, getting help for mental health issues
impeding her ability to care for the child, understanding and meeting the
child’s basic needs, and ensuring the child attended medical appointments.
At that point, the hospital was providing mother and the child support in
several ways, including the help of specialists to assist with the child’s
medical needs: a dietician, gastrointestinal doctor, home health nurse, and
care coordinator.

¶11 Months after the child’s birth, the Department engaged
mother in an in-home safety plan in which a relative supervised mother’s
parenting. But the child was hospitalized at least seven times for failure to
thrive before the child was nine months old and often needed an implanted
feeding tube.

¶12 At nine months, the child was hospitalized again,
representing her eighth documented hospitalization. Though mother
stayed in the hospital with the child this time, she could not meet the child’s
needs even in that tightly controlled setting. And the Department learned
the supervising relative had violated the safety plan by leaving the child
alone with mother. At that point, the Department concluded mother’s
inability to care for the child threatened the child’s life. The Department
took the child into care, placed the child with a foster family, and filed an
out-of-home dependency petition. The superior court found the child
dependent as to mother and adopted a family reunification case plan.

¶13 When the child was 22 months old and after the Department
had offered services for more than a year, the superior court changed the
case plan to termination and adoption. The Department then moved to
terminate mother’s parental rights on neglect and six-months-in-care
grounds. See A.R.S. § 8-533.B.2 (neglect), B.8.(b) (six months). On the first
day of the adjudication hearing, the Department orally moved to amend its
motion to add a fifteen-months-in-care ground. See A.R.S. § 8-533.B.8.(c).
Mother objected, and the superior court took the request “under
advisement.” On the second day of the hearing, 29 days later, the superior

4
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

court granted the original oral motion after mother’s counsel said the extra
allegation would not have changed mother’s presentation and would not
prejudice mother. The next month, after the child had spent almost two-
thirds of life in an out-of-home placement, the superior court granted the
Department’s motion to terminate mother’s parental rights on both the
neglect and fifteen-months-in-care grounds. In support of the time-in-care
ground, the superior court found mother could not parent because she
could not “address her child’s basic needs, medical needs, and [her own]
ongoing use of marijuana.”

¶14 During the years of the Department’s involvement, mother at
most minimally engaged in reunification services. Indeed, mother had not
completed even one Department-offered service by the filing of the
termination order. And the Department had offered, and re-offered,
reunification services throughout the process, including:

1. Family connections, to provide resources and support;

2. Nurturing parent program, to provide parenting education and
skills;

3. Facilitated visitation, to help maintain mother’s relationship with the
child throughout the dependency;

4. Drug testing, to ensure mother addressed her substance abuse
issues, specifically with marijuana;

5. Terros substance abuse assessment and treatment, to address her
substance abuse issues;

6. Case management, to coordinate services, including new referrals
and re-referrals;

7. Transportation, to help mother participate in services;

8. Psychological evaluation, to identify underlying mental health
issues and appropriate counseling and other services to address
them; and

9. Counseling, to help mother address her mental health issues.

¶15 Mother had not addressed her substance abuse or mental
health issues by the termination adjudication. Mother also had not taken
the opportunities she had to learn how to meet the child’s basic needs, let

5
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

alone the child’s significant medical needs, of which mother knew
essentially nothing.

II. Mother never remediated her substance abuse or mental health
issues.

¶16 Mother’s substance abuse and mental health issues were
central to the Department’s involvement from the beginning. During
closing argument at the termination adjudication, the superior court asked
Department counsel whether mother’s anxiety, depression, and marijuana
use caused the Department concern for mother’s ability to parent—
independently of mother’s handling of the child’s special medical needs.
Counsel answered yes and affirmed they were distinct issues affecting
mother’s overall ability to supervise and care for the young child. Counsel
argued those separate issues would be important even if a child did not
have the special needs. That point informed the superior court’s analysis of
the effect of mother’s substance abuse and unresolved mental health issues
on her ability to parent.

A. Though the Department offered mother many services and
opportunities to treat her substance abuse, mother’s efforts
fell short, and her continuing substance abuse adversely
affected her ability to parent.

¶17 Mother’s marijuana abuse harmed the child even before birth.
During pregnancy, mother exposed the child to the drug in utero. Mother’s
continual marijuana abuse after the child’s birth adversely affected her
parenting. During the termination adjudication, mother belatedly
acknowledged she needed to stop using marijuana because of how it
affected her ability to parent. Mother said she did not parent “the right
way” when she used marijuana because she would focus on other things
instead of the child.

¶18 Even so, mother used marijuana throughout the dependency
and termination proceedings. Mother obtained a medical marijuana card in
2021 for treatment of back pain. But she used marijuana to self-medicate for
depression, anxiety, and general stress. And the Department remained
concerned about mother’s marijuana use because of the child’s
vulnerability and mother’s tendency to fall asleep while caring for the child,
even during supervised visits.

¶19 When the child was around eighteen months old, mother
tested positive for methamphetamine. Over the ten months from October
2021 to July 2022, mother submitted to drug testing inconsistently and

6
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

missed almost all tests. And she tested positive for marijuana for five out of
her seven completed tests in July 2022. When the child was more than two
years old and the termination adjudication pending, mother said she was
using three grams of marijuana twice a day.

¶20 The Department also offered mother services through
provider Terros. Terros recommended group therapy, individual
counseling, drug screens, “friends and family night,” case management,
and medical marijuana group education. Mother attended one medical
marijuana group education session. When Terros tried to follow up with
mother about missed sessions, mother said she did not care. Terros
terminated mother’s services for lack of engagement.

¶21 The Department offered mother individual therapy with
Terros. But rather than work with Terros, mother contacted a different
service provider, where she began individual therapy in July 2022. And
even then, mother attended just six of the twice-monthly appointments
over the next ten months.

¶22 Mother knew the Department wanted her to stop using
marijuana or “have a safety plan in place” to protect the child when she did
use marijuana. Even so, mother admitted she had been using marijuana
until two weeks before the second day of the termination adjudication. And
she did not participate in any of the recommended substance-abuse
treatments during her two weeks of sobriety. Instead, mother said she
called some agency to try to get into a “marijuana group” the day before
the second day of the termination adjudication, but she could not remember
the name of the agency.

B. Mother failed to address the mental health issues
interfering with her ability to parent, even though the
Department offered her many services and opportunities to
do so.

¶23 Mother’s mental health raised concerns throughout the
dependency and termination proceedings. It was one of several issues
central to the Department’s involvement from the beginning. Mother had
been in counseling with Chicanos Por La Causa for a lengthy period and
self-identified as suffering from attention deficit hyperactivity disorder,
depression, and anxiety. When the child was seven months old, Chicanos
Por La Causa accepted mother’s request for counseling for depression at
least once a month. But mother attended the sessions inconsistently and
eventually stopped attending altogether. Unbeknownst to the Department,

7
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

Chicanos Por La Causa ended mother’s counseling services after her
therapist made several unsuccessful attempts to contact her. When the
Department found out, it referred mother for a psychological evaluation in
February 2022. But mother did not attend the evaluation, and the provider
could not reach mother to reschedule. Mother did not attend any
counseling sessions from September 2021 until July 2022.

¶24 Mother attended one group medical marijuana educational
session in July 2022 but missed several later sessions and did not respond
to Terros’s repeated attempts to contact her. She also did not engage in
medical marijuana group therapy. Terros finally reached her at the end of
July 2022 and asked her about her missed sessions. Mother responded she
did not care and forgot about the group because she does not need it.
Mother’s continual marijuana use, as described above, caused further
concern because of her substance-abuse history and the child’s extreme
vulnerability. As the child continued to lose vision and hearing, the child
lost the ability to detect danger or seek protection if endangered by mother
being under the influence.

¶25 When the child was 21 months old, mother told the
Department she was still struggling with depression, so the case manager
referred her for a second psychological evaluation. The examination led to
a guarded prognosis for mother’s ability to parent the child in the near
future. The examining psychologist recommended mother participate in
substance-abuse testing and treatment and establish sobriety for at least six
months. He also recommended mother engage in the nurturing parenting
program. Because of those concerns, the psychologist “recommended
[mother] demonstrate the ability to consistently meet both her own and her
[child]’s needs; including providing appropriate housing, items needed to
care for her [child], and consistently attending all of her [child]’s medical
appointments, for a minimum of 6 continuous months prior to returning a
child to her care.”

¶26 Consistent with those recommendations, the Department re-
referred mother to the nurturing parenting program and Terros. Mother
did not complete her intake for the new Terros referral before the
adjudication hearing months later. Mother was just halfway through the
nurturing parenting program by the adjudication hearing, and the program
provider reported mother had made “little to no progress.”

8
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

III. From the child’s birth through the termination adjudication,
mother showed an inability to provide for the child’s basic needs
along with an inability to meet the child’s significant medical
needs.

A. The Department sought an out-of-home placement because
mother was not caring for the child’s basic needs and the
child’s extra medical needs because of mother’s substance
abuse and mental health issues.

¶27 From the beginning, mother struggled to feed the child and
meet the child’s medical needs. To assist mother, the Department arranged
for her to receive therapy and medication monitoring through Chicanos Por
La Causa and services through Family Connections. Those services were on
top of the hospital-provided care coordinator, dietician, pediatrician,
gastrointestinal doctor, and home health nurse assigned to support her in
caring for the child. At most, mother minimally participated in those
services. For example, mother’s Family Connections services closed in
August 2021 because the provider reported mother “does not follow
through with scheduled appointments” and “consistently no-shows,
cancels, or minimally engages” in meetings.

¶28 The child was hospitalized at least eight times between birth
and August 2022 for failure to thrive and sometimes required tube feeding
in the hospital. When the child was hospitalized at nine months because of
mother’s inadequate care and feeding, mother stayed at the hospital with
the child. There, hospital staff often had to wake mother to feed the child.
When hospital staff could not wake mother, they cared for the child
themselves. And mother could not properly feed the child, even with help
from hospital staff.

¶29 Mother generally could not provide for the child’s basic and
medical needs, even with help from a care coordinator and several
specialists. Among other things, mother failed to take the child to the doctor
when the child’s feeding tube fell out. Once, the child suffered an infection
that lingered for months because mother could not consistently medicate
the child. Mother missed the child’s medical appointments and failed to set
up needed therapies. As a result, the child missed developmental
milestones and suffered progressive vision and hearing loss.

9
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

B. Mother failed to take reasonable steps to learn about the
child’s medical needs.

¶30 We agree the Department should have, but failed to, advise
mother of the child’s medical appointments. But mother admitted she was
aware of at least some medical appointments because the foster family or
her aunt and uncle told her about them and about the results. Indeed,
mother’s aunt and uncle took the child to many medical appointments
while the child was periodically in their care, but mother accompanied
them just once. Mother also had access to the child’s medical records and
court reports discussing the child’s needs throughout the dependency and
termination proceedings.

C. Mother never took an active interest in caring for the child.

¶31 The child’s foster family and aunt and uncle sought sign-
language classes, a special school, and other services to meet the child’s
significant needs. Mother, however, neither helped with nor participated in
those efforts. Mother showed her disengagement at the termination
adjudication when, even though she knew the child had been wearing
hearing aids for six months, mother acknowledged the child’s hearing
therapy was “new to [her].”

¶32 Mother did not consistently visit the child and often cancelled
or missed visits, left early, or fell asleep during visits. For example, in
November 2021, the visitation supervisor’s notes showed mother missed
visits for three consecutive weeks. Even when she attended supervised
visits, mother did not engage with the child.

¶33 This Court has jurisdiction over mother’s timely appeal under
article VI, § 9, Constitution of Arizona, and A.R.S. §§ 8-235.A, 12-120.21.A.1.

DISCUSSION

¶34 The Arizona Supreme Court recently reiterated this court’s
“consequential yet narrow duty” when reviewing a superior court’s order
terminating a parent’s rights. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471,
481 ¶ 47 (2023). Brionna J.’s explanation guides our analysis:

[W]e reiterate the well-established principle that a juvenile
court’s legal conclusion that a statutory ground for
termination has been proven by clear and convincing
evidence will be affirmed unless “clearly erroneous.” In
clarifying what “clearly erroneous” means, we unremarkably

10
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

reiterate that this finding will be affirmed unless the appellate
court determines as “a matter of law that no one could
reasonably find the evidence to be clear and convincing.” For
nearly seventy years, . . . this Court has consistently
concluded that this is the appropriate standard of review for
a decision that must be based on clear and convincing
evidence.

This well-accepted legal principle is hardly evanescent, and
the clarified standard set forth herein simply provides
guidance to appellate courts tasked with a consequential yet
narrow duty in reviewing termination cases.

Id. at 481 ¶¶ 46–47 (citations omitted). Because the superior court is in the
best position to evaluate the testimony, this court will not reweigh the
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009).

¶35 The superior court terminated mother’s rights on neglect and
fifteen-months-in-care grounds. Because we affirm the termination based
on the fifteen-months-in-care ground, we need not address the neglect
ground or the State’s statutory interpretation argument it need not provide
rehabilitative services for the superior court to find that ground. See Michael
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251 ¶ 27 (2000).

¶36 Under A.R.S. § 8-533.B.8.(c), the superior court may terminate
a parent’s rights to a child when (1) the child has been in a court-ordered
out-of-home placement for a cumulative period of fifteen months or longer,
(2) the Department has made a diligent effort to provide the parent with
appropriate reunification services, (3) the parent has been unable to remedy
the circumstances causing the child to be in an out-of-home placement, and
(4) the evidence establishes it is substantially likely the parent will be unable
to exercise proper and effective parental care and control in the near future.
See also Brionna J., 255 Ariz. at 474 ¶ 1.

¶37 The fifteen-months-in-care ground differs significantly from
the six- and nine-month grounds. The six- and nine-month grounds focus
on the parent’s effort toward remediation rather than the outcome of those
efforts. Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329 ¶ 20 (App.
2007). As long as a parent has not “substantially neglected or wilfully
refused” to remedy the circumstances leading to out-of-home placement, a
court cannot terminate the parent’s rights under six-months-in-care or nine-

11
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

months-in-care grounds, even if those circumstances are not remediated. Id.
at 330 ¶ 21; A.R.S. § 8-533.B.8.(a)–(b).

¶38 In contrast, the fifteen-months-in-care ground hinges not on a
parent’s effort but on the parent’s actual success or failure in remediating
the circumstances causing the out-of-home placement. See id. at 329–30 ¶ 21.
Because the superior court terminated mother’s parental rights on the
fifteen-months-in-care ground, the focus moves from the level of the
parent’s efforts to whether those efforts remedied the circumstances
causing the child to be in an out-of-home placement and whether the
evidence shows it is substantially likely the parent will be unable to exercise
proper and effective parental care and control in the near future. See A.R.S.
§ 8-533.B.8.(c).

¶39 To terminate a parent’s rights under the fifteen-months-in-
care ground, the Department must prove by clear and convincing evidence
it made “a diligent effort to provide appropriate reunification services.”
A.R.S. § 8-533.B.8; Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 190
¶ 25 (App. 1999). The juvenile court must “consider the totality of the
circumstances when determining whether [the Department] has made
diligent efforts.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 23 ¶ 49 (App.
2019). To meet its obligation, the Department must “identify the conditions
causing the child’s out-of-home placement, provide services that have a
reasonable prospect of success to remedy the circumstances as they arise
throughout the time-in-care period, maintain consistent contact with the
parent, and make reasonable efforts to assist the parent in areas where
compliance proves difficult.” Id. at 23 ¶ 50 (emphasis omitted). Even so, for
forty years, this court consistently has recognized the Department need not
provide services if doing so would be futile. See Christina G. v. Ariz. Dep’t of
Econ. Sec., 227 Ariz. 231, 236 ¶ 20 (App. 2011) (citing Maricopa Cnty. Juv.
Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189 (App. 1984)). As
discussed below, unlike the dissent, we do not abandon that forty-year
history. See infra Dissent ¶¶ 62–71.

I. The superior court did not clearly err when it found the
Department made diligent efforts to provide mother with
appropriate reunification services.

¶40 Throughout the proceedings, mother was told she had to
understand and address the child’s specific medical needs. And she was
told other issues also were keeping the child in care. She concedes in her
brief, “Throughout the family-reunification attempt, [the Department’s]
primary concerns were [m]other’s mental health management, marijuana

12
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

use, and ability to meet [the child’s] special medical needs.” During the
termination adjudication, the Department also argued mother could not
provide even for the child’s basic medical needs, separate from the child’s
unique medical challenges. Even so, mother only challenges the superior
court’s diligent-efforts finding. More specifically, mother argues the
Department failed to make diligent efforts to provide appropriate
reunification services tailored to help her understand the child’s specific
medical needs.

¶41 The Department argues mother’s opening brief does not
challenge the Department’s diligence in providing services for the other
issues adversely affecting mother’s ability to parent the child: her long-term
substance abuse, her unaddressed mental-health issues, and her ability to
provide for the child’s most basic needs. And mother filed no reply brief to
address those other issues. See Crystal E. v. Dep’t of Child Safety, 241 Ariz.
576, 577–78 ¶ 5 (App. 2017).

¶42 Mother has waived any challenge to the superior court’s
findings on those three issues. See id. As this court noted in Crystal E., the
Department “should not be expected to address unraised contentions and
we, in an exercise of judicial restraint and in furtherance of judicial
economy, should not attempt to analyze and decide arguments that have
been abandoned and waived.” Id. at 578 ¶ 7. On that basis alone, we would
affirm.

¶43 Waiver aside, reasonable evidence supports the superior
court’s findings. The Department identified the causes of the child’s
out-of-home placement and offered mother services to remedy them.

A. Reasonable evidence supports the superior court’s finding
by clear and convincing evidence that mother failed to
address her substance abuse.

¶44 Marijuana usage clouded mother’s parental judgment from
the day the child was born, substance-exposed to marijuana. Years later at
the adjudication, mother acknowledged she focused on other things instead
of the child when she used marijuana while attempting, but failing, to
provide proper care for the child.

¶45 Mother’s continuing substance abuse is evident even as of the
first day of the termination adjudication. She said she had a medical
marijuana card for back pain. But she acknowledged using marijuana
throughout the case for other purposes, most recently six grams a day,

13
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

which she attributed to coping with her father’s passing in October 2022.
The evidence also establishes mother had a cannabis-use disorder.

¶46 Mother knew she had to address her substance abuse to
reunify with the child, but she did not take the needed action during the
more than two years before the termination adjudication. Instead, she
waited until the day before the termination hearing, testifying she then
called an unidentified agency to ask about marijuana group therapy. And
mother never developed a safety plan to protect the child from her medical
marijuana use.

¶47 Mother persisted abusing substances despite the
Department’s diligent efforts to help her overcome them. Over more than
two years, the Department referred and re-referred mother for testing and
treatment. Mother tested inconsistently, and the tests she took were often
positive for marijuana. She also tested positive for methamphetamine one
time. Terros engaged mother and referred her for multiple treatments,
therapy, testing, and educational programs. But mother chose not to engage
for two years. True enough, Terros cancelled one intake appointment
mother finally scheduled two weeks before the termination adjudication
and more than two years after the child was born. But mother failed to
remedy her substance abuse not because her provider cancelled one
appointment but because of her own extended delay. And the superior
court was not required to give much weight to mother’s eleventh-hour
compliance efforts. See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 352 (App. 1994) (concluding parent’s successful addiction recovery
“too little, too late”).

¶48 Nothing in the record suggests it was likely mother would
overcome her substance abuse to “be capable of exercising proper and
effective parental care and control in the near future.” A.R.S. § 8-533.B.8.(c).
And her substance abuse was one circumstance causing the child to be in
out-of-home care from the beginning.

B. Reasonable evidence supports the superior court’s finding
by clear and convincing evidence that mother failed to
address her mental-health issues.

¶49 Like her substance abuse, mother’s unaddressed mental-
health issues adversely affected her ability to parent the child.

¶50 Mother had been in counseling for many years. She suffered
from depression, anxiety, and attention deficit hyperactivity disorder. Even
during the dependency mother had suicidal ideations and urges to

14
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

physically harm herself. Mother acknowledged her counselor at Chicanos
Por La Causa wanted her to work on her anxiety and depression. And
mother herself acknowledged she needed counseling to work on those
issues. Mother even said she followed her Chicanos Por La Causa counselor
to another agency because she felt comfortable with her. Yet mother
stopped all counseling shortly after the Department removed the child and
did not resume it until almost a year later. Even then, mother had only six
telephonic counseling sessions during the ten months before the final
termination adjudication date, with lengthy gaps between them. During her
last session before the termination adjudication, the counselor said mother
seemed distracted. On the day of the termination adjudication, mother had
not seen a counselor in more than a month.

¶51 Mother’s failure to address her mental-health issues was not
for want of diligent efforts by the Department. The Department offered
multiple psychological evaluations to identify mother’s underlying mental-
health issues and worked to establish appropriate counseling and other
services to help mother address her underlying mental health. Mother
simply did not make the effort. As a result, she now can point to nothing in
the record to suggest she has managed her depression, anxiety, or cannabis-
use disorder to such an extent it is “likely” she will “be capable of exercising
proper and effective parental care and control in the near future.” See A.R.S.
§ 8-533.B.8.(c).

C. Reasonable evidence supports the superior court’s finding
by clear and convincing evidence that mother could not care
for the child’s basic needs.

¶52 Mother never demonstrated she could provide for the child’s
basic needs. Early on, mother struggled to feed the child. Even when
mother stayed with the nine-month-old child in the hospital, the nurses had
to wake mother and cue her to feed the child and take care of the child’s
other basic needs. At times, they could not wake mother and had to feed
the child themselves. Throughout the dependency and termination
proceedings, mother was inconsistent in her visits. She cut visits short. She
did not bring food, treats, or activities for the child. At one visit shortly
before the termination adjudication, she was so distracted she let the child
fall and “bust open her lip.” And even after the fall, she went back to
playing a game on her phone for the rest of the visit.

¶53 Mother’s challenges continued despite the Department’s
efforts to help her. The Department referred her to Family Connections for
resources and support. The Department made several referrals to the

15
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

nurturing parenting program to provide mother with parenting education
and skills. Mother never completed the program. More than two years after
the child was born, mother was halfway through her second attempt, and
even then, the provider reported mother had made “little to no progress.”
The Department provided case management to coordinate services. But
mother did not engage. Mother said she lacked transportation, but the
Department provided it to help her participate in services.

¶54 The focus of the fifteen-months-in-care ground is whether the
“parent has been unable to remedy the circumstances that cause the child
to be in an out-of-home placement” after the Department has provided
diligent reunification services to address its concerns. A.R.S. § 8-533.B.8.(c).
Mother did not remedy the circumstance of her inability to care for the
child’s basic needs after the Department had provided diligent
reunification services to address it. See Brionna J., 255 Ariz. at 474 ¶ 1.

D. Reasonable evidence supports the superior court’s finding
by clear and convincing evidence that mother continually
lacked knowledge about—and could not meet—the child’s
specific medical needs.

¶55 Mother had more than two years to learn about the child’s
medical needs. She did not.

¶56 For the first nine months, mother could have learned first-
hand while providing direct care for the child. She understood her ability
to care for the child’s medical needs was critical. Even so, the child ended
up in the hospital over and over because mother did not provide for the
child’s care. When the child was nine months old, the Department sought
out-of-home placement because the child’s health was at risk in mother’s
care. Mother again knew the importance of learning the child’s medical
conditions and how to care for them.

¶57 For more than two years, mother had access to the child’s
medical records and court reports discussing the child’s needs. As of the
adjudication, she did not know what the child’s conditions were. Indeed,
though mother knew the child had hearing aids for six months, at the
adjudication, mother said the child’s hearing therapy was “new to [her].”

¶58 Mother knew about at least some the child’s medical
appointments. The foster family or her aunt and uncle told her about them
and their results. Indeed, mother’s aunt and uncle took the child to many
medical appointments while the child was periodically in their care, but
mother only ever accompanied them twice. And she said her aunt would

16
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

tell mother about the appointments when mother could not go to them. At
the adjudication, mother acknowledged she could not even take the child
to her required medical and therapy appointments, saying she would need
to have the Department continue to help with transportation. Mother
simply was not ready.

¶59 With all that, the superior court considered mother’s
knowledge and abilities at the time of the adjudication. The court concluded
the Department’s notifying mother of medical appointments would have
been “futile” because of her failure to engage in all other services and her
failure to take advantage of many opportunities she did have to learn about
her child’s medical needs through medical records, court proceedings, and
her relatives:

The Department never advised Mother of the child’s medical
appointments. Mother at hearings and foster care review
board meetings regularly requested to be advised of medical
appointments so that she could participate in those
appointments and understand the child’s medical needs
better. The Court has considered whether the Department’s
failure to provide this notice rendered their efforts less than
diligent and unreasonable. Given Mother’s failure to
participate in multiple services, the Court finds that even if
the Department had provided Mother with the dates of
those appointments, it would not have moved Mother closer
to reunification and would have been futile. First, the Court
finds it unlikely that Mother would have participated.
Second, Mother had abundant access to the child’s medical
history and records and—based on her own testimony—still
had no idea what the child’s various medical needs were as of
the date of trial. Contained within every court report in this
case is, at a minimum, a summary description of the Child’s
extensive needs. Provided as exhibit 11 is the Child’s medical
records with Children’s Rehabilitative Services. Mother does
not appear to have reviewed any of those records, despite
them being available to her. Finally, Mother’s family was
attending many of the medical appointments. The burden to
provide services is always on the Department; here, however,
the Department did provide many services, and Mother
simply failed to take advantage of many options to learn
about her child’s needs.

(Emphasis added.)

17
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

¶60 The superior court issued a supplemental order making clear
it found the above by clear and convincing evidence. Consistent with the
superior court’s finding, reasonable evidence shows mother would not
have attended any appointments if the Department had told her about
them. She attended only two she did know about. And no evidence shows
mother would have understood the child’s medical needs any better if she
had received notice of appointments specifically from the Department,
precisely because the evidence shows she did not go to the appointments
she did know about. And she did not read the medical and therapy records
she did have. She did not understand the child’s need for hearing therapies
even though the child was barely two years old and wearing hearing aids.

¶61 Based on the above, we cannot say, “as a matter of law that
no one could reasonably find the evidence to be clear and convincing.”
Brionna J., 255 Ariz. at 481 ¶ 46 (quoting Murillo v. Hernandez, 79 Ariz. 1, 9
(1955)). Still, the superior court’s specific findings on this one point neither
support nor negate its other findings of mother’s inability to parent. Even
if the superior court had erred, its other findings of mother’s inability to
parent based on substance abuse, unaddressed mental-health issues, and
inability to recognize and meet the child’s basic needs are enough to
support its termination decision.

E. The superior court did not err when it terminated mother’s
parental rights even though the Department failed to give
mother notices of the child’s medical and therapy
appointments.

¶62 Mother argues the Department “failed to comply with A.R.S.
§ 8-846.” To comply, she argues, the Department had to “prove an
aggravating factor by clear and convincing evidence at an evidentiary
hearing conducted for that purpose.” See A.R.S. § 8-846.D; Ariz. R. P. Juv.
Ct. 340. She then says, “Instead, the [superior] court improperly
circumvented A.R.S. § 8-846 and Rule 340 by simply purporting to find any
additional efforts ‘futile’ in the termination order.”

¶63 As the Department points out, mother is not the first to make
this argument. See Christina G., 227 Ariz. at 236–37 ¶¶ 21–25. The mother in
Christina G. also argued A.R.S. § 8-846 and then Rule 57 (now Rule 340),
Arizona Rules of Procedure for the Juvenile Court, required the

18
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

Department 2 to secure a court order before it could cease providing
services. 227 Ariz. at 236 ¶ 21. This court rejected that argument:

But nothing in the statute or rule requires [the Department] to
request such a hearing if it intends to continue to provide
services, as was the case here. Nor does any language in
§ 8-846 or Rule [340] suggest that the juvenile court is
prohibited from making a determination after the severance
hearing that additional services would have been futile.

Id. at 237 ¶ 25 (emphasis added).

¶64 Mother argues she did not waive her right to challenge
whether the Department made diligent efforts. But she did waive her right
to seek relief under A.R.S. § 8-846 and Rule 340 because she, like the mother
in Christina G., did not ask the superior “court to conduct a hearing to
determine whether [the Department] could suspend services or refrain
from providing them” and so “waived the argument absent fundamental
error.” See id. at 237 ¶ 23. Here, as in Christina G., the superior court did not
fundamentally err by failing to conduct such a hearing sua sponte. Id. at 247
¶ 24.

¶65 With that understanding, we focus, as Brionna J. mandates, on
our “consequential yet narrow duty in reviewing” mother’s termination
case. See 255 Ariz. at 481 ¶ 47. Mother was well aware she needed to address
her child’s specific medical needs from the day the Department became
involved. She knew of that requirement throughout the dependency and
the termination. And mother and her counsel were well aware the
Department had not offered the service about which mother now
complains—notice of the child’s medical and therapy appointments. She
also knew she needed to address her substance abuse, mental health, and
inability to recognize and meet the child’s basic needs. The superior court
did not clearly err when it found the existence of the fifteen-months-in-care
ground.

¶66 To be sure, the Department should have given mother notice
of the child’s medical and therapy appointments. But that error does not

2 Since this court ruled in Christina G., the Department of Child Safety
replaced Child Protective Services and became independent of the Arizona
Department of Economic Security. For continuity and readability, we refer
to the Department, even if at the time the agency was Child Protective
Services.

19
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

warrant reversal. Even when this court in Christina G. assumed without
deciding the Department “failed to make diligent efforts to provide
sufficient reunification services,” it still concluded “the record support[ed]
the juvenile court’s determination that continuation of services would have
been futile.” 277 Ariz. at 235 ¶ 15. Though the Department did not provide
one service it should have given mother, the Department undisputedly
provided many services to mother during the dependency and the
termination proceedings. Id. at 237 ¶ 24. And here, as in Christina G., the
superior “court recognized as much each time it made a finding that [the
Department] had made diligent efforts to provide reunification services.”
See id. And mother never objected to those findings here.

¶67 The dissent focuses on Mary Ellen C., a case in which this court
reversed the superior court because the Department did not make diligent
efforts. See 193 Ariz. at 192–93 ¶¶ 35–36, 42. In Mary Ellen C., the
Department did not provide services for almost a year after removing the
child from the mother’s care. Id. at 192 ¶ 35. After taking a year to schedule
a psychological evaluation, it waited another three months to direct the
mother toward therapy. Id. It provided no other service even though its
own psychologist recommended intensive psychiatric services. Id. Rather,
the Department gave the mother a “phone number, encouraged her to
self-refer, and never followed up sufficiently to secure . . . records of her
progress.” Id. Sixteen months after the evaluation, the Department had
provided just six counseling sessions. Id. at 192 ¶ 36.

¶68 Those facts stand in stark contrast to the robust, though
imperfect, services the Department offered mother here. The Department
offered mother services from the moment it became involved. And when
mother’s referrals closed out because she did not participate, the
Department made new referrals. Unlike what happened in Mary Ellen C.,
the Department here provided mother the opportunity to succeed and
made a “concerted effort to preserve” the parent-child relationship when it
offered the services it did. See id. at 192 ¶ 37. Though the Department fell
short on keeping mother advised of the child’s medical and therapy
appointments, the superior court did not clearly err when it found notice of
the appointments would not have made a difference because mother rarely
attended the appointments even when she knew about them. And mother
did not take advantage of other opportunities to learn about the child’s
significant medical needs.

¶69 The dissent also posits “Jessie D. requires us to hold that the
lack of any effort by [the Department] to invite mother to [the child]’s
medical appointments, much less a diligent effort, violates her

20
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

constitutional right to due process.” See infra Dissent¶ 116 (citing Jessie D. v.
Dep’t of Child Safety, 251 Ariz. 574 (2021)). We do not read Jessie D. to hold
the Department to a standard of perfection. Jessie D. stands for the common-
sense proposition the Department cannot deny a parent all services in
certain circumstances. 251 Ariz. at 581 ¶ 20. This court recognized that point
in Jessie D. when it said, denying all services “is contrary to the well-settled
axiom that severance of the parent-child relationship should be resorted to
only when concerted effort to preserve the relationship fails.” Id. (cleaned
up).

¶70 Consistent with Jessie D., the superior court resorted to
termination of the parent-child relationship only after the Department’s
“concerted effort to preserve the relationship fail[ed].” Id. The Department
did not deny mother all services. It provided services to address the three
other issues it saw as impeding mother’s ability to parent: her substance
abuse issues, mental health, and ability to meet the child’s basic needs, like
simple feeding. Though the Department failed to advise mother of medical
appointments, mother did not address even one of those other major
concerns independent of her attending medical appointments. And the
evidence shows mother did not go to medical appointments even when she
knew about them. To reverse under the totality of the circumstances of this
case would suggest we hold the Department to a standard of perfection. A
parent could avoid termination if the Department overlooked a single
service, even when, as here, the provision or not of that service has no
bearing on the circumstances supporting the termination.

¶71 The facts before us in the light of this court’s long-standing,
forty-year precedent overwhelmingly support the superior court’s order
terminating mother’s parental rights.

II. The superior court did not abuse its discretion when it found
termination of mother’s parental rights was in the child’s best
interests.

¶72 Mother argues the superior court erred when it found
termination was in the child’s best interests.

¶73 The superior court must determine what is in the best
interests of the child by a preponderance of the evidence. Kent K. v. Bobby
M., 210 Ariz. 279, 284 ¶ 22 (2005). Once the superior court finds a parent
unfit under at least one statutory ground for termination, “the interests of
the parent and child diverge,” and the superior court then balances the unfit
parent’s “interest in the care and custody of his or her child . . . against the

21
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

independent and often adverse interests of the child in a safe and stable
home life.” Id. at 286 ¶ 35. “[A] determination of the child’s best interests
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship.” Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990) (emphasis omitted). Courts “must
consider the totality of the circumstances existing at the time of the
severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148
¶ 1 (2018).

¶74 The superior court may find a child would benefit from
termination if the Department has developed an adoption plan or the child
is adoptable. Id. at 150–51 ¶¶ 13–14. The same is true if the child “would
benefit psychologically from the stability an adoption would provide.”
JS-501904, 180 Ariz. at 352. On the other hand, the superior court may find
a child would be harmed by the continuation of the parent-child
relationship if “there is clear and convincing evidence of parental unfitness
which has not been remedied notwithstanding the provision of services by
[the Department] and which detrimentally affects the child’s well-being.”
Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App. 1989).

¶75 Mother challenges the superior court’s finding termination in
the child’s best interests, but she does not challenge the superior court’s
other findings: the child is with a foster family who meets the child’s basic
and special needs, wishes to adopt the child, and can provide the child with
permanency and stability. These findings are enough to support the
superior court’s determination.

¶76 Still, mother argues the superior court should have given her
extra time to participate in reunification services because the Department
failed to invite her to the child’s medical and therapy appointments. But the
superior court expressly considered “the fact that [the Department] did not
provide [m]other with adequate notice of the [c]hild’s medical
appointments” and “whether it [was] in the [c]hild’s best interests to
provide mother with additional time to participate in services.” The
superior court found termination of mother’s parental rights was in the
child’s best interests because “the [c]hild is young and in need of not only
stability, but a home that can meet [the child’s] medical needs every day.
Mother has never been able to and will not be able to do so in the near
future.” Reasonable evidence supports those findings, and this court will
not reweigh the evidence on appeal. Jordan C., 223 Ariz. at 93 ¶ 18.

22
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Opinion of the Court

CONCLUSION

¶77 The superior court did not rely for its termination decision on
the single thread of evidence of mother’s failure to meet the child’s
advanced medical needs. The decision was a layered and complex tapestry
woven with multiple threads of evidence of different and independent
indications of mother’s inability to parent, including substance abuse,
mental-health issues, and an inability to meet or even recognize the child’s
most basic needs. Though the Department fell short in notifying mother of
the child’s medical appointments, pulling that one thread does not unravel
the whole of the decision. Even if mother knew the times of the child’s
medical appointments, that knowledge alone would not resolve her
substance abuse, manage her mental health, or enable her to meet the
child’s basic needs.

¶78 We affirm.

23
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

J A C O B S, J., dissenting:

INTRODUCTION

¶79 The State took mother’s child away because Mother was
initially unable to care for her daughter’s special medical needs. The State’s
termination petition shows it filed this termination proceeding for that
reason and the record shows it remained principally about that core subject,
notwithstanding the State’s and the Opinion’s efforts to make it about other
subjects. Remarkably, despite that core basis for termination, the State
never invited Mother to any of her daughter’s medical appointments, even
as she constantly asked to attend them. The State’s failure to do so defeated
any reasonable argument that the State provided the services the United
States Constitution requires the State to provide before it could take J.C.
away from Mother. Santosky v. Kramer, 455 U.S. 745, 753–54 (1982); Jessie D.
v. Dep’t of Child Safety, 251 Ariz. 574, 579 ¶ 18 (2021) (quoting Santosky and
finding reunification efforts required in “any state attempt to overcome” a
parent’s liberty interest).

¶80 Never mind the State’s refusal to give Mother a chance to
learn to meet her daughter’s needs, this court answers – it would be futile
to let Mother attend the appointments. She would not fulfill her child’s
needs anyway, given her depression and legal marijuana use (ignoring that
any mother would be depressed if the State abrogated her constitutional
rights by depriving her of a chance to learn how to win her daughter back).
This circular and self-serving reasoning ignores and defeats Mother’s
federal constitutional right to parent her child, which is reason enough to
reverse. Only our insular legal culture could unironically explain to the
public that by keeping Mother walled out of her child’s medical
appointments, the State somehow provided the constitutionally required
“reunification services” needed to let it take her daughter away. But the
decision to take J.C. from Mother also rests on this court’s extra-statutory
“futility doctrine,” which the Arizona Supreme Court has never relied upon
or approved, and which is found nowhere in the Arizona Revised Statutes.
For these reasons, I respectfully dissent, and would require the superior
court to allow Mother to attend her child’s medical appointments, and then
to assess any further request to terminate her parental rights over J.C.

24
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

FACTS AND PROCEDURAL HISTORY

A. After a Report That Mother Was Unable to Meet J.C.’s
Special Medical Needs, DCS Made a Plan That Mother
Would Learn to Meet J.C.’s Needs By Attending Medical
Appointments to Better Understand Them.

¶81 J.C. was born with several medical issues in part because of a
condition afflicting Mother that she had failed to treat. Mother also exposed
J.C. to marijuana in utero. In October 2020, J.C. was born below average
weight and failed to thrive, partially because Mother was not feeding her
properly or timely. At that time, Mother failed to follow up with the
infant’s doctor appointments and therapy assessments. Mother, then 19
years old, faced her own mental health issues, including attention-deficit
hyperactivity, depression, and anxiety disorders.

¶82 DCS’s intervention in Mother’s relationship with J.C. began
on February 4, 2021, when “the Department received a report that Mother
was unable to medically care for her child.” DCS implemented an in-home
safety plan in which a relative was to supervise Mother’s parenting. DCS’s
plan recognized that the “[s]ervices and behavioral changes [Mother]
needed” to make the plan work included Mother consistently attending
J.C.’s medical appointments. Indeed, DCS’s plan called for “[Mother to]
makes sure that [J.C.] makes it to all of her medical appointments.” From
that constant attendance, Mother would come to understand and meet each
of J.C.’s medical and special needs, so she could “demonstrate the[se]
learned skills during visitation with” J.C. DCS called Mother’s presence in
and learning from the medical appointments a condition necessary for her
to demonstrate effective parenting and reclaim her full parental rights. It
wrote in a later report to the juvenile court that Mother’s “Behavior Change
Goal Needs” included Mother being “able to identify how her . . . lack of
engagement in J.C.’s medical appointments has effected [sic] [J.C.]”.

¶83 DCS referred Mother to services to help her parent, in which
Mother inconsistently participated at first. Mother received therapy and
medication monitoring through Chicanos Por La Causa and services
through Family Connections, including a care coordinator, dietician,
pediatrician, gastrointestinal doctor, and a home health nurse assigned to
support her in caring for J.C. Mother struggled with properly feeding J.C.
and following up with her medical needs. Around then, J.C. weighed in
the first percentile on the growth charts.

25
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

¶84 Mother’s inconsistent participation in her own counseling
continued, and she struggled with feeding J.C. By January 2021, J.C. had
been hospitalized seven times for failure to thrive and often required a
feeding tube in the hospital. J.C. gained weight during her hospital stays
but lost weight at home in Mother’s care. Meanwhile, Mother struggled
with depression and self-harm urges. Mother’s provider recommended
counseling at least once a month, but she attended sessions inconsistently
and eventually stopped attending altogether. In July 2021, J.C. was
hospitalized again. Mother stayed with J.C. in the hospital, but could not
meet the infant’s needs. Hospital staff frequently had to wake Mother up
to feed J.C. and, at times, they could not wake her, so they cared for J.C.
themselves. Mother also failed to give J.C. medication for two infections,
causing one to persist for months. Because J.C. was failing to thrive, she
started missing developmental milestones and experiencing progressive
vision and hearing loss. DCS felt Mother’s inability to keep J.C. fed and
growing could lead to grave harm if not ameliorated.

B. DCS Asked the Court to Declare J.C. Dependent, Relying
Substantially on Mother’s Inability to Meet J.C.’s
Specialized Medical Needs, But Did Not Invite Her to Any
of J.C.’s Medical Appointments.

¶85 On July 23, 2021, DCS petitioned the juvenile court to declare
J.C. dependent, in substance because Mother was not then able to provide
for J.C.’s special medical needs. DCS’s dependency petition was
substantially premised on “Mother [being] unwilling or unable to provide
proper and effective parental care and control by neglecting to provide
proper and effective parental care and control by neglecting to provide for
the child’s nutrition and medical care.” The first half of DCS’s explanation
in the petition as to why Mother’s continued care of J.C. would be contrary
to her welfare consisted of discussions of Mother’s inability to care for J.C.’s
special medical needs. DCS’s petition criticized Mother’s parenting abilities
by noting her need to better follow medical instructions of a dietitian, a
pediatrician, medical staff, a primary care physician, and hospital staff.

¶86 DCS kept the focus for Mother’s improvement on her ability
to improve in handling J.C.’s special medical needs. In a report to the
juvenile court dated December 3, 2021, DCS’s list of changes Mother needed
to make repeatedly called out the need to assure that J.C.’s special medical
needs would be met. The report opined that Mother must
“utilize[] her resources to assist in ensuring [J.C.’s] medical and basic needs
are met . . . .” In a later paragraph on the same page, DCS reported that
Mother must “understand[] her child’s medical needs and [be] equipped to

26
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

provide and follow through with any and all medical recommendations.
[Mother must] understand[] what is needed to continue with [J.C.’s]
medical appointments to ensure [J.C.’s] safety and development.” In a third
separate paragraph on that page, DCS wrote that Mother needed to be able
to “articulate the importance of being involved in [J.C.’s] medical needs and
. . . not allow a lapse in attending [J.C.’s] medical appointments.” As DCS
wrote, these improvements were all “necessary in order for the parent . . .
to demonstrate enhanced caregiver protective capacity and eliminate the
safety threats (as designed in the case plan).”

¶87 Notwithstanding how central J.C.’s special medical needs
were to her dependency, and the acknowledged necessity for Mother to
attend all of J.C.’s medical appointments, DCS never invited Mother to any
of J.C.’s medical appointments.

C. DCS Urged Mother to Address Her Emotional and
Substance Use Issues Through Services During the
Dependency, Which Mother Did With Limited Success.

¶88 Aside from directly addressing J.C.’s special medical needs,
DCS’s case plan also focused on Mother’s mental health issues and use of
substances, calling for Mother to engage in services to alleviate those
concerns as an aid to her care for J.C. Early in the case plan, Mother
admitted that she felt she needed someone there with her every step of the
way to take care of J.C. and that parenting was too overwhelming for her.

¶89 DCS offered Mother Family Connections services and
referred Mother for a psychological evaluation, the Nurturing Parenting
Program, drug testing, and supervised visitation. Over the next year-and-
a-half, Mother engaged in some of these services. For example, in April
2022, Mother began therapy through a new service provider, but only
attended six appointments over the months before trial. While originally
poor, Mother’s engagement in services improved substantially shortly
before her termination trial.

¶90 During the dependency, DCS was concerned about Mother’s
drug use. In March 2022, Mother tested positive for methamphetamine and
continued to use marijuana for her anxiety and depression and stress.
Though Mother had a medical marijuana card, DCS questioned her
marijuana use considering J.C.’s extreme vulnerability and instances of
Mother falling asleep while caring for the child, including at supervised
visits. DCS referred Mother to Terros for substance-abuse and mental-
health treatment. Terros recommended Mother participate in individual,

27
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

group, and Medical Marijuana Group therapy and drug testing. Mother
minimally attended, however, and her referral closed.

¶91 In August 2022, Mother told DCS she was still struggling with
depression, so the case manager referred her for a second psychological
evaluation. The psychologist recommended she participate in substance-
abuse testing and treatment and establish sobriety for at least six months.
Mother did not complete the resulting Terros intake before trial. Mother
continued to use marijuana (albeit legally) for her anxiety and depression
up to trial. The psychologist also recommended Mother engage in the
Nurturing Parenting Program. Mother was halfway through the Nurturing
Parenting Program by trial.

¶92 Meanwhile, J.C. improved in the care of her foster family but
still had significant special needs, including feeding, speech, physical, and
occupational therapies, medical appointments, and behavioral-health
services. Doctors determined that J.C. was partially deaf and required
hearing aids and speech and hearing services. In September 2021, DCS
approved J.C.’s aunt and uncle for unsupervised visits and allowed Mother
to attend these visits. Mother did not join them in these extra visits.
However, when J.C.’s aunt and uncle and foster family invited Mother to a
handful of the child’s medical appointments, Mother attended a few of
them. A DCS specialist commented unfavorably on Mother attributing her
difficulties in engaging with services to her work schedule, and criticized
Mother for failing to pursue sign-language learning while J.C.’s foster
family had.

¶93 When it later denied termination on the six-months out-of-
home care ground, the court would find that Mother “ha[d] not
substantially neglected or willfully refused to participate in services, given
her recent engagement.”

1. The Court Terminated Mother’s Parental Rights For
Neglect and Under the Fifteen-Month-in-Care
Ground, Excusing DCS’s Failure to Invite Mother to
J.C.’s Appointments Because It Would Have Been
“Futile” to Do So.

¶94 On August 29, 2022, DCS moved to terminate Mother’s
parental rights under the neglect and six-month and fifteen-month out-of-
home placement grounds. See A.R.S. § 8-533(B)(2), (B)(8)(b)-(c). The court
held an evidentiary hearing across two days, December 13, 2022, and

28
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

January 11, 2023, before granting the motion to terminate on two of those
three grounds in an Under Advisement Ruling on February 3, 2023.

¶95 Before analyzing the grounds for termination in its Under
Advisement Ruling, the court made findings about DCS’s failure to provide
reunification assistance to Mother. The court found that “The Department
never advised Mother of the child’s medical appointments.” The court
further found that “Mother at hearings and foster care review board
meetings regularly requested to be advised of medical appointments so that
she could participate in those appointments and understand the child’s
medical needs better.” The court found these facts irrelevant to its decision
to terminate Mother’s parental rights with respect to J.C., because the court
found that “even if the Department had provided Mother with the dates of
those appointments, it would not have moved Mother closer to
reunification and would have been futile.” The court did not find DCS
excused from providing medical appointment-related services to Mother
under any of the statutory grounds under A.R.S. § 8-846, nor did the court
find that informing Mother of the medical appointments would be “futile”
by clear and convincing evidence. Rather, by finding it “unlikely” Mother
would have participated in J.C.’s medical appointments, the court found
DCS’s failure not to invite Mother proper by something more akin to a
preponderance of the evidence standard, and thus expressly not by clear
and convincing evidence.

¶96 The court ruled that DCS had proven there was a basis to
terminate for neglect under A.R.S. § 8-533(B)(2) because it found Mother
would not be able “to meet [J.C.’s] medical needs.” The court found Mother
“did not provide the Child with needed medical care, including obtaining
prescriptions, providing appropriate medicines, or learning how to address
the Child’s particular feeding needs.” The court found “Mother is currently
unable to meet those medical needs and will continue to be unable to meet
those needs” for reasons including Mother’s “failure to stay up to date in
the child’s medical needs . . . .”

¶97 The court denied DCS’s motion to terminate under A.R.S. § 8-
533(B)(8)(b), the six-month out-of-home placement ground. The court
found DCS had made diligent efforts to provide services, including therapy
for emotional difficulties, parenting coaching, and substance use-related
counseling. As noted, recognizing “Mother’s more recent engagement” in
services, the court found Mother had “not substantially neglected or
willfully refused to participate in services,” and thus declined to terminate
on this basis.

29
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

¶98 The court found DCS had proved by clear and convincing
evidence that A.R.S. § 8-533(B)(8)(b), the fifteen-month out-of-home
placement ground, justified termination. The court repeated its finding that
DCS had made diligent efforts to provide services that, if successfully
completed, would likely have resulted in reunification. The court found
Mother “does not recognize her child’s special and medical needs, and
ha[d] taken minimal steps to understand those needs or how to best address
them.” The court emphasized that Mother’s marijuana use had impaired
her caregiving and that she continued to use marijuana until just before trial
(though apparently legally). Based on Mother’s degree of participation in
services, the court found that Mother did not know how to care for her
child’s “basic or special medical needs” and would not be able to provide
proper parental care in the near future.

¶99 Finally, the court addressed whether it was in J.C.’s best
interests to terminate Mother’s parental rights. The court found that
Mother had “relatively improved parenting skills,” “ha[d] made some
progress in her ability to interact with her child, and [wa]s clearly bonded.”
The court found “[t]here is no question that Mother loves her child.”
Despite those findings, the court found J.C. had a foster home “where all of
her medical needs can be appropriately provided for,” while “Mother has
never been able to and will not be able to” provide for J.C.’s medical needs.
The court concluded its decision as one resting on Mother’s understanding
of J.C.’s medical needs – “[w]hile Mother has had some skills improve, her
ability to care for the Child’s medical needs have not increased at all.”
Because of this failure to understand and address medical needs, the court
found it in J.C.’s best interests by the preponderance of the evidence to
terminate Mother’s parental rights.

¶100 Mother timely appealed. This court has jurisdiction under
A.R.S. § 8-235(A).

DISCUSSION

¶101 Mother challenges the superior court’s determination that
DCS made a diligent effort to provide her with appropriate reunification
services, given the court’s findings that DCS never advised her of J.C.’s
medical appointments and that she regularly requested to be kept apprised
of them so she could better understand J.C.’s special medical needs. Mother
argues that DCS was constitutionally required to make a diligent effort to
provide her with reunification services even with respect to its effort to
terminate her parental rights under A.R.S. § 8-533(B)(2). Mother also
challenges that severance was in J.C.’s best interests because, she contends,

30
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

a correct analysis of the totality of the circumstances would account for
DCS’s failure to assist her in learning about J.C.’s special medical needs.

¶102 DCS argues there is no federal constitutional requirement to
diligently support reunification when it alleges abandonment, and that our
Legislature’s omission from A.R.S. § 8-533(B)(2) of any requirement to
provide reunification services is fatal to Mother’s position. In any event,
DCS argues, the court was right to apply the futility doctrine to reject her
complaint about DCS’s failure to ever invite Mother to J.C.’s medical
appointments. Inviting Mother to J.C.’s medical appointments would have
been futile because, DCS claims, Mother failed to engage in any services
and never attended any service appointments. Finally, DCS contends
Mother failed to challenge the factual premises of the court’s best interests
finding. We should reject these arguments and vacate the order
terminating Mother’s parental rights.

I. Terminating Mother’s Right to Parent J.C. For Failure to Provide
for J.C.’s Medical Needs, While Refusing to Invite Mother to J.C.’s
Medical Appointments Even as She Continually Asked to Attend
Them, Violated Mother’s Constitutional Rights.

A. The Constitutional Right to Parent Is Fundamental and May
Only Be Terminated Where Fundamentally Fair Procedures
Provide Due Process, Including Reunification Services.

¶103 Parents have a “fundamental liberty interest in ‘the care,
custody, and management’ of their children” grounded in the United States
Constitution. Jessie D., 251 Ariz. at 579 ¶ 8 (quoting Santosky, 455 U.S. at
753). As the Arizona Supreme Court has reminded us, “it is crucial to
remember that parents’ right to the custody and control of their children is
fundamental and ‘does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the state.’”
Id. at 581 ¶ 17 (quoting Santosky, 455 U.S. at 753). Thus, “‘the court [should]
sever the parent-child relationship only in the most extraordinary
circumstances, when all other efforts to preserve the relationship have failed.’” See
id. at 581 ¶ 18 (quoting In re Appeal in Maricopa Cnty. Juv. Action No. JA
33794, 171 Ariz. 90, 91-92 (App. 1991)) (Arizona Supreme Court’s
emphasis). Our supreme court called reunification services “imperative,”
and made clear DCS is constitutionally required to offer reunification
services when it seeks to terminate parental rights. Id. In particular, the
Court approvingly stated that “Arizona courts have previously recognized
a requirement to engage in reunification efforts ‘on constitutional grounds
as a necessary element of any state attempt to overcome . . . the fundamental

31
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

liberty interest of the natural parents in the care, custody and management
of their child.’” Id. (quoting Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 185, 192 ¶ 32 (App. 1999)) (emphasis added). In other words, all
parents hold these constitutional rights, and they do not vanish based upon
DCS’s choice to proceed under one statutory basis rather than another in
seeking to overcome a parent’s liberty interest.

¶104 Nevertheless, a parent’s right to custody and control of her
own child, while fundamental, is not inalienable. Id. at 579 ¶ 8. The court
may terminate parental rights where “the parents whose rights are to be
severed are provided with fundamentally fair procedures that satisfy due
process requirements.” Id. (quoting Kent K. v. Bobby M., 210 Ariz. 279, 284
¶ 24 (2005)) (quotations omitted). In a proceeding meeting due process
strictures, terminating a parental relationship may be warranted where
DCS proves one statutory ground under A.R.S. § 8-533 by “clear and
convincing evidence.” Id. “Clear and convincing” means the grounds for
termination are “highly probable or reasonably certain.” Kent K., 210 Ariz.
at 284-85 ¶ 25 (citation omitted). The court must also find that severance is
in the child’s best interest by a preponderance of the evidence. Id. at 284 ¶
22.

B. The Key Issue of J.C.’s Dependency and the Court’s
Termination Order Was Mother’s Ability to Learn About
J.C.’s Special Medical Needs to Enable Her to Fulfill Them.

¶105 Mother lost her parental rights because the superior court
agreed with DCS that Mother did not understand, and would not learn to
fulfill, J.C.’s special medical needs. DCS’s intervention here began when
“the Department received a report that Mother was unable to medically
care for her child.” DCS’s petition to declare J.C. dependent focused
principally on whether Mother could meet J.C.’s special medical needs, and
comply with the advice and instruction of an array of medical professionals
DCS cited.

¶106 When reporting to the juvenile court, DCS made the
centerpiece of its plan for Mother’s necessary improvement that she
appreciate J.C.’s medical needs, understand her need to support them, get
J.C. to medical appointments, and never lapse in being present herself for
the appointments. DCS declared these improvements all “necessary in
order for [Mother] . . . to demonstrate enhanced caregiver protective
capacity and eliminate the safety threats (as designed in the case plan).” In
other words, to prevail, Mother had to attend all of J.C.’s medical

32
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

appointments to learn more about her medical conditions and make sure
J.C.’s special needs were met.

¶107 The superior court’s order of termination likewise made clear
Mother’s inability to improve in understanding J.C.’s medical needs was
the but-for cause of termination in four ways. First, recognizing that some
or all of the grounds for termination in this matter required DCS to
diligently provide Mother with reunification services, the superior court’s
analysis began with the finding that inviting Mother to J.C.’s medical
appointments would have been futile because it was “unlikely” she would
have attended the appointments. Second, the superior court found neglect
proved under A.R.S. § 8-533(B)(2) because of Mother’s inability to
understand J.C.’s special medical needs, which in turn was demonstrated
because Mother had “fail[ed] to stay up to date in the child’s medical needs
. . . .” Third, the court found A.R.S. § 8-533(B)(8)(c), the fifteen-month out-
of-home placement ground, proven in part because Mother “does not
recognize her child’s special and medical needs, and ha[d] taken minimal
steps to understand those needs or how to best address them.” Fourth, in
defining J.C.’s best interests, the court allowed that Mother greatly loved
J.C., and was bonded to J.C., and had made improvements in her parenting
skills, but found that “her ability to care for the Child’s medical needs have
not increased at all.”

C. Because Understanding J.C.’s Special Medical Needs Was
the Centerpiece of the Case Plan and Termination
Proceeding, DCS Was Required to Give Mother a Chance to
Attend J.C.’s Medical Appointments.

¶108 DCS conditioned reunification on Mother’s ability to
understand and meet the child’s medical and special needs. DCS expected
Mother to consistently attend J.C.’s medical and therapy appointments.
Indeed, DCS set up Mother’s attendance itself as a criterion for Mother’s
success or failure in making the improvements needed to reclaim her full
parental rights. Paradoxically, DCS made no efforts to invite Mother to
those very appointments, leading the superior court to find DCS “never
advised Mother of the child’s medical appointments.” We must defer to
this finding of fact. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶
4 (App. 2002) (explaining that we “will accept the juvenile court’s findings
of fact unless no reasonable evidence supports those findings.”). We must
likewise defer to the juvenile court’s finding that Mother recurringly sought
to be invited to these appointments so she could learn to better understand
J.C.’s medical needs. Id. DCS does not directly challenge these findings of
fact in this court. The majority’s suggestion that – boxed out of J.C.’s

33
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

appointments – Mother should have learned about J.C.’s special medical
needs by reviewing available medical records does nothing to redeem the
State’s judgment of her for failing to do what it stopped her from doing.

¶109 Mother argues this failure was a violation of due process. She
is right. It is essential that if DCS conditions reunification on a parent’s
ability to meet her child’s medical needs, it must manage the case to give
adequate notice to the parent of the child’s medical and therapy
appointments and allow her the opportunity to attend them. See Donald W.
v. Dep’t of Child Safety, 247 Ariz. 9, 23 ¶ 50 (App. 2019) (“Although what
constitutes a diligent effort will vary by case based on the family's unique
circumstances, a diligent effort requires—at the least—DCS to identify the
conditions causing the child's out-of-home placement, provide services that
have a reasonable prospect of success to remedy the circumstances as they
arise throughout the time-in-care period, maintain consistent contact with
the parent, and make reasonable efforts to assist the parent in areas where
compliance proves difficult.”) (emphasis omitted).

¶110 One of our cases upon which DCS relies in making its futility
argument makes this point eloquently. In Mary Ellen C., 193 Ariz. at 192 ¶¶
34-37, this court reversed a termination of parental rights premised on the
mental illness of a mother where DCS’s expert had recommended
“intensive psychiatric services” that the mother did not receive before her
rights were nonetheless terminated. As we explained while reversing that
termination in Mary Ellen C., 193 Ariz. at 192 ¶ 37, “[t]he State does not . . .
make a ‘concerted effort to preserve’ the parent-child relationship when it
neglects to offer the very services that its consulting expert recommends.”

¶111 A similar logic should control here. This termination came
down to whether Mother could learn to address J.C.’s special medical
needs, just as the termination in Mary Ellen C. was a function of whether the
mother could overcome her “serious mental illness.” Id. at 192 ¶¶ 35-37.
Just as DCS’s failure to provide Mother with the “intensive psychiatric
services” that were that mother’s chance to address her mental health
struggles required reversal in Mary Ellen C., so is DCS’s failure to notify
Mother of any of J.C.’s appointments a violation of Mother’s constitutional
rights. Terminating Mother’s parental rights despite the lack of any effort
to provide the service core to this judicial proceeding failed to provide
Mother with the fundamentally fair procedure and due process our
Constitution guarantees her in “any state attempt to overcome . . . the
‘fundamental liberty interest’” in parenting one’s child. Jessie D., 251 Ariz.
at 581 ¶ 18 (quoting Mary Ellen C., 193 Ariz. at 192 ¶ 32). While the Opinion
points to other services provided, offering rides to Terros is not a

34
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

constitutionally acceptable substitute for refusing to provide the service
addressing the core issue of the termination.

D. Jessie D. Forecloses DCS’s Argument That There Is No
Constitutional Requirement of Diligent Efforts to Reunify
Where DCS Seeks Termination Under A.R.S. § 8-533(B)(2).

¶112 DCS argues that there is no federal constitutional requirement
of efforts to reunify when termination under A.R.S. § 8-533(B)(2) is at issue.
The critical passage of Jessie D. just discussed resolves that argument.

¶113 First, DCS is right that the Legislature omitted to include a
requirement of diligent efforts before termination in A.R.S. § 8-533(B)(2) –
but the Legislature also omitted that requirement from A.R.S. § 8-533(B)(4),
and the Arizona Supreme Court found those efforts constitutionally
required. See Jessie D., 251 Ariz. at 581 ¶ 18 (“Although A.R.S. § 8-533(B)(4)
does not impose an explicit duty on DCS to provide reunification services,
the absence of a statutory duty does not obviate the state’s obligation to
provide these services.”).

¶114 Second, our supreme court made clear that this logic extends
to “any state attempt to overcome . . . the fundamental liberty interest of the
natural parents in the care, custody, and management of third child.” Jessie
D., 251 Ariz. at 581 ¶ 18. (emphasis added) (citations omitted). Far from
“read[ing] such a requirement into the neglect and abuse ground,” as DCS’s
brief would have it, this position follows Santosky as applied to A.R.S. § 8-
533(B) by our supreme court.

¶115 Third, Alma S v. Dep’t of Child Safety, 245 Ariz. 146 (2018),
which DCS cites, is not to the contrary. There, our supreme court
considered what “inquiry juvenile courts must make to determine whether
parental severance is in the ‘best interests of the child’ for purposes of A.R.S.
§ 8-533(B).” Id. at 148 ¶ 1. The thrust of Alma S. is how to conduct a best-
interests determination, not construing which subsections of A.R.S. § 8-
533(B) require DCS to make diligent efforts toward reunification. See
generally id. We appreciate and take the guidance from Alma S., cited by
DCS, that eight of the eleven statutory grounds in A.R.S. § 8-533(B) are
synonymous with unfitness. Id. at 150 ¶¶ 9-10 (referring to A.R.S. § 8-
533(B)(1)-(4), (8)-(11)). But DCS’s entirely correct observation is an
unavailing bootstrap because it begs the question before us. Before a
finding of any of the statutory grounds in A.R.S. § 8-533(B) (which are
indeed synonymous with unfitness), the court must first employ
procedures consistent with due process and fundamental fairness. Jessie D.,

35
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

251 Ariz. at 579 ¶ 8. Jessie D., which came three years after Alma S., made
clear that even though a finding of eight of the eleven statutory grounds in
A.R.S. § 8-533(B) equate to a finding of unfitness, our courts cannot make a
finding of unfitness under its subparts without first requiring a finding of
diligent efforts by DCS. Id. at 581 ¶ 18.

¶116 In sum, Jessie D. requires this court to hold that the lack of any
effort by DCS to invite Mother to J.C.’s medical appointments, much less a
diligent effort, violates her constitutional right to due process.

II. The Superior Court’s Finding of Futility Does Not Justify
Termination of Mother’s Parental Rights or Cure the Violation of
Due Process in That Termination.

¶117 DCS separately contends that the superior court properly
found that it was harmless that DCS failed to ever notify Mother of J.C.’s
medical appointments because any such invitation would have been futile.
A number of cases from this court state that DCS’s obligation to provide
rehabilitative measures to parents in termination proceedings does not
include an obligation to undertake futile measures. See, e.g., Mary Ellen C.,
193 Ariz. at 192 ¶ 34; Maricopa Cnty. Juv. Action No. JS-5209 & No. JS-4963,
143 Ariz. 178, 189 (App. 1984). Yet DCS’s argument that futility defeats
Mother’s due process right to DCS including her in J.C.’s medical
appointments fails for constitutional, legal, and factual reasons.

A. The Court’s Finding of Futility Cannot Defeat Mother’s
Constitutional Right to Diligent Efforts.

¶118 Jessie D. makes clear DCS’s invocation of futility cannot
overcome Mother’s constitutional right to diligent efforts, which must
encompass invitations to J.C.’s medical appointments to have any meaning.
In Jessie D., 251 Ariz. at 580-81 ¶ 15, the Arizona Supreme Court reversed
the superior court’s determination that DCS did not need to provide
requested rehabilitative services to a father in prison facing termination
under A.R.S. § 8-533(B)(4) because the superior court found it would be
“virtually, if not completely, impossible in a prison setting” for the father
“to build and maintain a bond” with his children. Our supreme court
credited the superior court’s conclusion that the prison environment made
rehabilitation of the parent relationship extremely difficult, writing
“maintaining a relationship with one’s children while incarcerated would
undoubtedly be a difficult task,” but nonetheless reversed because it
rejected the fatalism that difficulty or improbability excused DCS from
supporting that difficult task in the first place. Id. at 581 ¶ 17. Our high

36
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

court rejected “[t]he juvenile court’s rationale and conclusion . . . [as] self-
fulfilling and impl[ying] that incarcerated parents could never adequately
maintain” their parental relations with their children. Id. The court’s
invocation of futility in this case likewise renders Mother’s anticipated
failure to learn more about J.C.’s medical needs self-fulfilling. Just as that
was impermissible in Jessie D., so it should be here.

¶119 The Arizona Supreme Court’s articulation in Jessie D. of the
legal rule makes even clearer that DCS cannot invoke futility here to excuse
its failure to notify Mother of J.C.’s appointments. In the paragraph of Jessie
D., announcing what DCS would be constitutionally required to do going
forward, the court mandated rehabilitation services for all incarcerated
parents seeking services and facing termination proceedings under A.R.S.
§ 8-533(B)(4), unless the court made a finding that the services themselves
would endanger the child. 251 Ariz. at 582 ¶ 21. Jessie D. concerned parents
who the superior court and the Arizona Supreme Court agreed faced long
odds against rehabilitating the parental relationship; it concerned a subpart
of A.R.S. § 8-533, which, like (B)(2) here, did not contain any requirement of
diligent efforts on DCS’s part; and it announced a constitutional rule that
rehabilitative efforts were required in all cases, save those when it would
affirmatively injure the child. See id. This rule does not leave room for DCS
to throw up its hands after the fact and claim Mother would not have
improved in caring for her child’s medical needs when Mother is clamoring
to attend the child’s medical appointments. See also Santosky, 455 U.S. at
753–54 (“If anything, persons faced with forced dissolution of their parental
rights have a more critical need for procedural protections than do those
resisting state intervention into ongoing family affairs. When the State
moves to destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures.”).

¶120 It is likewise significant that in the four decades since the
futility concept was articulated in our cases concerning termination under
A.R.S. § 8-533, the Arizona Supreme Court has never relied on it to justify
a termination under this statute. It is our job to follow the guidance of the
Arizona Supreme Court. Between Jessie D.’s recent articulation of a clear
constitutional rule lacking exceptions and a lack of case law employing
futility since the U.S. Supreme Court issued Santosky, there is no reason to
believe the Arizona Supreme Court would circumscribe Mother’s rights by
using the rubric of futility in this case.

¶121 Additionally, the superior court’s futility finding creates a
further constitutional problem that defeats DCS’s attempt to rely on it in
this court. The fundamentals of due process are notice and an opportunity

37
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

to be heard. Goldberg v. Kelly, 397 U.S. 254, 267 (1970). The right to services
in aid of reunification is necessarily a right that the services occur
meaningfully in advance of the evidentiary hearing on termination under
A.R.S. § 8-533. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330 ¶
22 (App. 2007) (explaining that relevant circumstances in termination are
those existing at time of trial). As Mother notes, Arizona law has a formal
process to justify the extraordinary step of revoking a parent’s right to
rehabilitative services. See A.R.S. § 8-846(D). As Mother also notes, DCS
did not invoke that procedure here.

¶122 But when DCS wishes to cease providing services to a parent
facing a termination proceeding, the Legislature required several things of
DCS that underscore that lack of notice and an opportunity to be heard in
this case. DCS was required to make reasonable efforts to provide services
to Mother and J.C. under A.R.S. § 8-846(A) unless three things occurred.
First, DCS was required to ask the superior court for permission not to
provide those services. Second, DCS was thus required to put Mother on
notice that in a proceeding in which her parental rights could be terminated,
DCS planned not to provide those services. Third, DCS was required to
make showings by clear and convincing evidence of the presence of its
justifications for not providing services.

¶123 Section 8-846 further illustrates that in termination cases, both
the federal Constitution and the Arizona legislature’s statutory design
guarantee Arizona parents the fundamentals of due process, which are
notice and an opportunity to be heard. The court’s post hoc finding of
futility in its order terminating Mother’s parental rights – with no prior
motion to the court, no notice to Mother that the state was renouncing an
obligation it might have to her (to allow her to address the matter with the
superior court before termination), and no clear and convincing evidence
standard – failed to provide Mother with notice and an opportunity to be
heard. Holcomb v. Ariz. Dep’t of Real Est., 247 Ariz. 439, 443 ¶ 11 (App. 2019)
(“Procedural due process requires that a party receive notice and the
opportunity to be heard at a meaningful time and in a meaningful
manner.”). Indeed, this court has previously explained that the design of
A.R.S. § 8-846 is to do exactly this – to give notice to parents when DCS
thinks services are futile, so they can resist that suggestion and be guided
accordingly. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 237 ¶
25 (App. 2011) (“Thus, when applicable under § 8-846, if ADES intends to
stop providing reunification services, it is then obligated to bring the issue
to the attention of the juvenile court to permit the parents to be heard on
the matter.”). Our Constitution and our legislature’s consistent design that

38
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

Arizona parents receive notice when the state chooses to withdraw or not
provide reasonable services, require more.

B. The Superior Court’s Finding of Futility Was an Abuse of
Discretion.

¶124 The court’s finding of futility here was also an abuse of
discretion because it was not made by clear and convincing evidence, and
because it rests on a foundational factual finding that was not made by clear
and convincing evidence. Our seminal case in advancing futility as a basis
for not providing services calls for DCS to demonstrate by clear and
convincing evidence that the services would have been futile. Mary Ellen
C., 193 Ariz. at 193 ¶ 39 (“Nor did the State introduce clear and convincing
evidence that additional services would have been futile.”). But the court
here did not initially claim to have determined futility by clear and
convincing evidence. Indeed, by resting its finding that informing Mother
of J.C.’s appointments would have been futile because it was “unlikely” she
would have attended them, the court necessarily employed a
preponderance of the evidence standard.

¶125 Even if one does not read the court’s use of “unlikely” in that
fashion, the fact remains that the futility finding was a but-for cause of
termination and was not determined by clear and convincing evidence.
This was error. See JS-5209 & No. JS-4963, 143 Ariz. 185 (“[T]he clear and
convincing evidence standard employed in parental termination cases[]
serves to protect the parent's right from being too easily terminated based
upon standards that may not be very precise.”). This panel’s choice to
remand this case more than one year after the superior court decided it so
the court could confirm it used the clear and convincing standard in no way
changes that court’s prior finding that Mother’s attendance at J.C.’s medical
appointments was merely “unlikely,” which is still inconsistent with
finding futility by clear and convincing evidence.

¶126 The finding of futility is likewise an abuse of discretion
because the record does not support a finding by clear and convincing
evidence. It is not our job to reweigh the evidence. Jessie D., 251 Ariz. at
582 ¶ 23. Nonetheless, there is an abuse of discretion here, where we must
defer to the juvenile court’s finding that “Mother at hearings and foster care
review board meetings regularly requested to be advised of medical
appointments so that she could participate in those appointments and
understand the child’s medical needs better.” This is precisely the conduct
DCS required of Mother. To find it was essentially impossible that Mother
could improve as a parent and better understand J.C.’s medical needs when

39
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

she was asking to do precisely what DCS wanted and needed her to do does
not make sense and is an abuse of discretion. Treating as irrelevant
Mother’s desire to do exactly what DCS’s case plan required of her
improperly made DCS’s refusal to provide the core assistance its case plan
called for a “self-fulfilling” prophecy of Mother’s failure. See Jessie D., 251
Ariz. at 581 ¶ 17 (reversing where juvenile court’s rationale rendered
outcome of proceeding “self-fulfilling” by declining to allow parent
opportunity to attempt extremely difficult task of rebuilding parental
relationship despite incarceration).

¶127 Mother is right that the court’s post hoc futility finding,
without DCS ever invoking A.R.S. § 8-846 or Arizona Rule of Procedure for
the Juvenile Court 340 (allowing any party to “file a motion pursuant to
A.R.S. § 8-846 asking the court to relieve DCS of the duty to provide
reunification services) was a further abuse of discretion. The juvenile court
misapplied the law when it determined in its final order that it would have
been futile for DCS to invite Mother to J.C.’s medical and therapy
appointments, where DCS failed to move for relief under and prove an
aggravating circumstance under A.R.S. § 8-846 by clear and convincing
evidence.

¶128 And as already noted, when DCS resolves not to provide
services, it is “obligated to bring the issue to the attention of the juvenile
court to permit the parents to be heard on the matter.” Christina G., 227
Ariz. at 237 ¶ 25. DCS did not do as this court indicated it must in Christina
G., which put the superior court unfairly at a disadvantage in managing
this case. DCS chose not to notify Mother of J.C.’s appointments, and chose
not to raise the matter to the juvenile court by motion. When it later
mattered enough to require a futility finding after trial, DCS was properly
chargeable under A.R.S. § 8-846 with its prior failure to raise the issue to the
juvenile court, as Mother suggests.

¶129 There is likewise an abuse of discretion in the futility finding
because its post hoc nature robbed Mother of the chance to avoid the
superior court’s after-the-fact ruling that she could never have learned,
even if she had opportunities DCS withheld from her. J.C.’s medical and
special needs were the central issue of the dependency. Indeed, J.C. had
numerous ongoing appointments with several providers. By not inviting
Mother, DCS denied her the time and opportunity to demonstrate her
ability—or inability—to consistently attend appointments and to learn
about and meet J.C.’s needs. See Donald W., 247 Ariz. at 23 ¶ 51 (DCS failed
in its duty to provide services when its “lack of diligence at the onset
created the circumstance” preventing reunification).

40
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

¶130 One answer to this critique is that while DCS failed to provide
Mother with this core part of its case-management service, the juvenile
court found it was “unlikely Mother would have participated” in the
appointments and determined Mother “had abundant access to the child’s
medical history and records” from records of this court proceeding but
“still had no idea what the child’s various medical needs were” at trial.
These are negative findings. But they were made in the world in which
Mother was functionally disinvited by DCS from the appointments
necessary for Mother to mount her disproof. DCS’s inaction leaves a large
void in the record, such that the court’s futility finding is not supported by
clear and convincing evidence or a reasonable inference. And as already
explained, the juvenile court did not find these foundational facts by clear
and convincing evidence: finding Mother’s attendance at appointments
“unlikely” doesn’t show that fact “by clear and convincing evidence.” See
Kent K., 210 Ariz at 284-85 ¶ 25 (explaining that “clear and convincing”
means “highly probable or reasonably certain.”) (citation omitted).

¶131 DCS’s arguments in support of these findings are not
persuasive. DCS points out Mother attended a few appointments through
other relatives, but does not dispute its own failure to notify Mother of
appointments while proceeding against her parenting rights on the theory
that she needed to attend them and learn about J.C.’s medical needs. DCS
asserts that “Mother . . . failed to engage in any of the numerous services
that DCS provided to her . . .” But that is not the record. The superior court
denied DCS’s request for termination on the six-month out-of-home
ground, affirmatively recognizing “Mother’s more recent engagement” in
services, and finding Mother had “not substantially neglected or willfully
refused to participate in services.” DCS’s observation that “[a]s with all of
the other service appointments, she just did not bother to attend them”
likewise does not fairly reflect the record of this matter. True, Mother’s
participation in services was sporadic, but she began engaging more in the
five months preceding trial. Mother’s uneven participation must be
measured against the choice to seek to revoke her constitutional right to
parent J.C. while not notifying Mother of J.C.’s medical appointments. The
law does not allow us to relieve DCS of the consequences of that choice. See
Jessie D., 251 Ariz. at 584 ¶ 34 (Bolick, J., concurring) (“I trust that in future
cases, lower courts will require DCS to facilitate maintaining the parental
relationship as it is constitutionally required to do, and that this Court will
overturn termination orders where DCS fails to do so.”).

¶132 This court should have vacated the superior court’s findings
that DCS made a diligent effort to provide Mother with appropriate
reunification services and that its failure to invite Mother to J.C.’s doctor

41
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C.
Jacobs, J., dissenting

and therapy appointments was futile. Because we should have vacated
these findings, this dissent does not proceed to address Mother’s challenge
to the court’s finding that severance was in J.C.’s best interests.

CONCLUSION

¶133 This court should have vacated the superior court’s order
terminating Mother’s parental rights to her child J.C. and remanded to
direct the juvenile court to give her a chance to succeed or fail in learning
about and caring for J.C.’s special medical needs. If she cannot do so when
given a chance, then termination would be proper. Until then, the United
States Constitution, as elaborated in Santosky and Jessie D., guarantees
Mother an opportunity to succeed or fail in learning about her child’s
special medical needs, and how to care for them. Declaring after a
dependency and termination that it was futile to let Mother try at all is not
consistent with our Nation’s constitutional traditions, fundamental
fairness, Arizona’s statutory law, or case law.

AMY M. WOOD • Clerk of the Court
FILED: TM

42