In RE TERM OF PARENTAL RIGHTS AS TO V.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO
V.M., J.M., M.M., E.M., and C.M.

No. 1 CA-JV 25-0070
FILED 03-30-2026

Appeal from the Superior Court in Maricopa County
No. JD42091
The Honorable Marischa Hope Gilla, Judge

AFFIRMED

COUNSEL

Robert Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Father

Maricopa County Public Advocate’s Office, Mesa
By Seth Draper
Counsel for Appellant Mother

Arizona Attorney General’s Office, Phoenix
By Veronica F. Rios
Counsel for Appellee Arizona Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO V.M., et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass joined. Judge Andrew J. Becke concurred in
part and dissented in part.

B R O W N, Judge:

¶1 Alondra M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights as to her children V.M., J.M., M.M., E.M.,
and C.M. Marcos R. (“Father”) appeals the juvenile court’s termination of
his parental rights as to C.M. For the following reasons, we affirm.

DISCUSSION

¶2 In 2022, Mother was living with her children V.M., J.M., M.M.
and E.M. The Department of Child Safety (“DCS”) received multiple
reports concerning Mother’s family that year, including an incident in May
where the children were living in a vehicle without a functioning air
conditioner after being kicked out of a family member’s home. Two months
later, DCS received a report that Mother shoplifted from a grocery store and
was seen using drugs behind the store. Soon after this incident DCS
contacted Mother, who admitted using methamphetamine while the
children were in her care. DCS petitioned for dependency, and the juvenile
court found the children dependent after the Mother pled no contest to the
allegations of abuse and neglect. The court first placed the children with
relatives, but after DCS received a report noting two of the children had
bruises, all four were placed with a foster family.

¶3 Throughout the dependency, Mother struggled to
consistently engage in services for her substance abuse. She failed to take
many of her scheduled drug tests from 2022 through 2025, and some tests
she did take were positive, including at least 12 times in 2024. Though
Mother was referred to substance abuse treatment providers several times,
many of the referrals closed out for lack of engagement. In October 2023,
Mother gave birth to C.M., who was born substance-exposed.1 Mother
admitted using methamphetamine only hours before his birth. After DCS

1 Father is not the parent of any other child in this case except C.M.

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filed a dependency petition, C.M. was removed from Mother’s care and
placed with his half-siblings in licensed foster care.

¶4 Father learned about C.M.’s birth the week after he was born,
but at that time Father was in jail in California. Father was then transferred
to a federal detention center in Arizona, and in November 2023, he was
deported to Mexico and lived in Nogales until June of the following year.
Mother relocated to Nogales to be with Father, and in February 2024 Father
managed to communicate with DCS when Mother called DCS. According
to Father, during that call DCS’s case manager informed Father he needed
to establish paternity in Mexico. Father later testified he could not take a
paternity test in Mexico without C.M. being present. Except for the limited
contact in February 2024, Father did not reach out to DCS or inquire
whether there was any way for him to see or visit C.M. while he was in
Mexico. DCS records similarly show that Father did not respond to DCS’s
attempt to speak with him and assess him. For the first seven months of
C.M.’s life, Father provided no gifts or financial support to C.M. While in
Mexico, Father’s only familiarity with C.M. resulted from watching several
videos Mother had provided of her visits with the child.

¶5 Father returned to the United States in June 2024 and began
communicating and engaging with DCS. He informed DCS he previously
used cocaine and alcohol, and that his last use was in April of that year.
Father then began drug testing, as well as having supervised visits with
C.M. Though Father first tested negative for drugs, he tested positive for
methamphetamines and amphetamines several times between October and
December of that year, but later tests were negative.

¶6 In February 2025, DCS moved to terminate Mother’s parental
rights as to all five children based on substance abuse and 15 months’ time
in care grounds, A.R.S. § 8-533(B)(3), (8)(c), and Father’s parental rights as
to C.M. based on abandonment and substance abuse grounds, A.R.S.
§ 8-533(B)(1), (3).2 The juvenile court held a termination adjudication
hearing on DCS’s motion to terminate parental rights and the dependency
petition for Father as to C.M.

¶7 As relevant to this appeal, DCS’s case manager testified about
Mother’s substance abuse and services she received. The case manager also
described DCS’s difficulties in establishing and maintaining contact with
Father during the first months of C.M.’s life. She explained that Father did

2 DCS also moved to terminate the parental rights of the father of E.M.,
M.M., and J.M., as well as the father of V.M. Though the court terminated
these fathers’ parental rights, they are not parties to this appeal.

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not try to contact or engage with DCS while he was in Mexico, even though
she called Father several times without response. The case manager also
noted that Father sent no gifts or financial support to the child during this
time.

¶8 Father testified about his deportation and efforts to contact
C.M. and DCS while in Mexico. Though the case manager testified that
visitation with C.M. was available to Father, he testified DCS never offered
him video visits or phone calls. As to whether he asked DCS to see C.M.
while he was in Mexico, Father testified he did not ask because he did not
think DCS would have allowed such visits.

¶9 The juvenile court determined C.M. was dependent as to
Father and terminated Mother and Father’s parental rights on all grounds
alleged by DCS. Addressing abandonment, the court found that Father had
good cause for failing to establish his paternity while in Mexico. But the
court determined this did not extend to Father’s other inactions. The court
acknowledged Father had contact with the case manager and was aware of
the dependency case but “he failed to appear in court for nearly 8 months.”
Although Father was not a party at that time, the court explained that
“appearing in court [wa]s one way Father . . . could have expeditiously
asserted his right to establish an emotional bond with [C.M.].” The court
also noted that nothing precluded Father from sending any gifts, supplies,
or support to C.M. while he was in Mexico. The court concluded that Father
“took no action to establish a parent-child relationship with C.M. from his
birth until Father returned to the United States in June 2024.” The court
also determined that termination would be in the children’s best interests.
Mother and Father appealed, and we have jurisdiction under A.R.S.
§§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶10 Father argues the juvenile court erred by concluding that DCS
proved abandonment and substance abuse, and by finding C.M.
dependent. Mother argues the court failed to make several necessary
findings throughout the dependency and in the termination order.

A. Abandonment as to Father

¶11 Father argues the court’s finding of abandonment is contrary
to the evidence presented at trial. We will affirm a juvenile court’s legal
conclusion that clear and convincing evidence supports a statutory ground
for termination unless that conclusion is clearly erroneous, meaning “as a
matter of law [] no one could reasonably find the evidence to be clear and

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convincing.” Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478–79, ¶ 31
(2023). We accept the juvenile court’s factual findings “if reasonable
evidence and inferences support them.” Id. at 478, ¶ 30.

¶12 A court may terminate parental rights if it finds by clear and
convincing evidence that the parent has abandoned the child. A.R.S.
§§ 8-533(B)(1), -537(B). “Abandonment” is defined as

[T]he failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment includes a judicial finding
that a parent has made only minimal efforts to support and
communicate with the child. Failure to maintain a normal
parental relationship with the child without just cause for a
period of six months constitutes prima facie evidence of
abandonment.

A.R.S. § 8-531(1).

“[A]bandonment is measured not by a parent’s subjective intent, but by the
parent’s conduct.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249,
¶ 18 (2000). When a parent faces circumstances that prevent them from
“exercising traditional methods of bonding with his child [the parent] must
act persistently to establish the relationship however possible and must
vigorously assert [their] legal rights to the extent necessary.” Calvin B. v.
Brittany B., 232 Ariz. 292, 296, ¶ 20 (App. 2013).

¶13 Our supreme court recently clarified the proper analysis for
termination under the abandonment ground. See In re B.W., ___ Ariz. ___,
572 P.3d 88 (2025) (analyzing A.R.S. § 8-533(B)(1)).3 To trigger the statutory
presumption of abandonment, the party seeking termination must present
evidence showing a parent (1) failed to maintain a normal parental
relationship; (2) for sixth months; and (3) without just cause. Id. at 94–95,
¶¶ 17–18. A parent may rebut this presumption by showing, inter alia, just
cause. Id. at 95, ¶ 18. Once a parent presents evidence of just cause, the
presumption vanishes, and the court must determine whether the party
seeking termination has proven abandonment “as if the presumption had
never operated in the case.” Id. (citation omitted). A parent can likewise

3 B.W. was decided two months after the juvenile court’s order
terminating parental rights, and about a week after Father filed his opening
brief. Thus, neither party has addressed how B.W. impacts the termination
order in this case.

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defeat an allegation of abandonment even in cases where the presumption
does not apply by demonstrating just cause.

¶14 Our supreme court explained that a parent has “just cause”
for failing to maintain a normal parental relationship if they can
demonstrate “a reasonable and fair justification for not maintaining a
normal parental relationship with the child” and that the parent “relied on
that justification in good faith.” Id. at 96, ¶ 24. Determining whether a
parent has “just cause” for failing to maintain such a relationship involves
examining “whether the parent is acting to maintain a normal parent-child
relationship”; however, courts must also “consider additional facts and
circumstances that may have fairly and reasonably impacted [the parent’s]
understanding of what conduct was feasible and any resulting
consequences.” Id. at 97, ¶ 25. Thus, courts must consider “additional
factors that may impact a parent’s ability or belief as to his ability to assert
his rights.” Id.

¶15 In B.W., the father was charged with first-degree murder and
conspiracy to commit first-degree murder, and the mother was a key
witness for the prosecution in father’s trial. Id. at 92–93, ¶¶ 4–5. On advice
of defense counsel, the father did not contact the mother about their child
for several years, and because the child was in the mother’s custody, the
father did not attempt to parent the child. Id. at 93, ¶¶ 5–6. The juvenile
court terminated the father’s rights based on the six-month language in
A.R.S. § 8-531(1). Id. at 93, ¶ 8. On appeal, the father contended he had just
cause for his inaction. Id. at 93, ¶ 11. The supreme court reversed the
termination order and remanded for the juvenile court to reconsider its
holding, finding “[t]he record on appeal is unclear as to what specific advice
Father received from his criminal defense attorney, the nature of Father’s
pretrial release conditions, and the attendant circumstances that may have
influenced what he believed he could do to maintain a normal parental
relationship with B.W. given his perceived legal jeopardy.” Id. at 97, ¶ 29.

¶16 Father contends his arrest and deportation interfered with his
ability to have a normal relationship with C.M. While we acknowledge the
challenges Father’s deportation presented in establishing a typical parental
relationship with C.M., Father offered no evidence that his circumstances
prevented him from taking any other actions to try to begin developing
some type of bond or relationship with C.M. Father never sent any gifts to
C.M., nor did he send or offer to send the child any financial support. As
the DCS caseworker testified, except for the one instance when Mother
called DCS, Father did not communicate with DCS about C.M. while Father
was in Mexico; when DCS tried to set a meeting with him, he did not

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respond. Father acknowledged he never asked the case manager how C.M.
was doing or why the child was in the care of DCS.

¶17 Similarly, Father did not ask DCS about ways he could visit
or see C.M. while he was in Mexico. Though Father testified he did not
think DCS would permit him to visit or see his child, such belief does not
absolve him of the need to make some kind of effort to establish a
relationship with his child. Cf. In re Pima Cnty. Juv. Severance Action No.
S-114487, 179 Ariz. 86, 97 (1994) (explaining, in the context of abandonment,
“the message, put simply, is this: do something, because conduct speaks
louder than words or subjective intent”).

¶18 Nor does B.W. justify Father’s inaction. Unlike B.W., in which
the parent was advised by counsel that he should not even try to contact his
child, 572 P.3d at 93, ¶ 5, nothing in the record suggests Father was similarly
dissuaded from contacting DCS regarding C.M. Even assuming as true that
Father believed DCS would deny his request for visitation with the child,
there is no evidence that Father believed he could not have made the request.
A significant difference exists between a parent who does not see or
communicate with their child because their attorney has told them it would
jeopardize their defense to a charge of murder, id.at 93, ¶¶ 5–6, and a parent
who does not communicate with DCS merely because he anticipates they
will deny his requests. Further, the record contains no evidence suggesting
Father was unable to ask DCS about sending supplies, gifts, or financial
support to C.M. while he was in Mexico. Because sufficient evidence
supports the juvenile court’s finding that Father did not act persistently to
assert his parental rights, and because he provided no evidence he had just
cause for his inaction, we cannot say the court clearly erred in finding
abandonment.

¶19 To be clear, we do not affirm the court’s abandonment finding
based solely on Father’s deportation. Indeed, the juvenile court found that
Father’s deportation made certain actions (i.e., establishing paternity)
unreasonably difficult. Rather, we affirm based on those actions Father
could have done, or at the least attempted, but failed to do. The record
demonstrates that DCS had Father’s contact information by March 22, 2024
and tried to speak with and assess him for services, but Father did not
respond. The DCS case manager testified she tried to call Father
approximately five times (using the same phone number Father used when
he returned to the United States) but received no response. Even assuming
there was some issue with that number, Father had the ability to contact
DCS through Mother if needed. Nothing precluded Father from at least
attempting to send gifts or cards or providing other types of support for
C.M. Father’s inaction provides sufficient support to affirm the juvenile

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court’s termination order. See In re B.W., 572 P.3d at 96, ¶ 22 (explaining
that “a ‘normal parental relationship’ exists when a parent provides the
support and contact with the child that a parent who abandoned the child
has failed to offer”).

¶20 Our dissenting colleague believes remand is necessary to give
Father the chance to present, and the juvenile court the opportunity to
consider, evidence that he had just cause for failing to maintain a normal
parent-child relationship with C.M. Though the dissent notes the juvenile
court only mentions just cause a single time in its termination order, Father
never raised the issue.4 Further, nothing in the record suggests Father was
precluded from presenting whatever evidence he had to show just cause
for his inaction. Nor does the record indicate the juvenile court missed the
mark in applying the statutory criteria for abandonment, including the “just
cause” inquiry. In the motion for termination, DCS alleged in part that
Father “failed to maintain a normal relationship with [C.M.] without just
cause.” In the termination ruling, the court quoted the abandonment
statute and outlined the evidence showing Father’s inaction for more than
six months.

¶21 The record shows Father was able to contact DCS regarding
C.M. And even if there is some reason not evident in the record that
prevented Father from using his own phone while in Mexico, Father could
have tried to contact DCS through Mother or other avenues.5 The dissent
is correct that Father actively participated with DCS after returning to the
United States, but his post-abandonment actions do not negate the seven
months in which he took no action to establish, or even start, a relationship
with C.M. Cf. Maricopa Cnty., Juv. Action No. JS-1363, 115 Ariz. 600, 601
(App. 1977) (rejecting the notion that post-petition “attempts to reestablish
a parental relationship” can defeat the finding of abandonment after the
petitioner has established prima facie evidence of abandonment). Thus,
although he was deported, Father did not provide any justification for
failing to do whatever was possible to establish a relationship with C.M.

¶22 Because we affirm the juvenile court’s finding of
abandonment, we need not address the court’s decision to terminate
Father’s parental rights based on substance abuse. Michael J., 196 Ariz. at

4 Father does not mention just cause in his opening brief; nor did he
file a reply brief, where he could have addressed the supreme court’s
reasoning in B.W.

5 DCS records also show Mother was consistently commuting to visits
with the children from Mexico.

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251, ¶ 27 (“Because we affirm the trial court’s order granting [termination]
on the basis of abandonment, we need not consider whether the trial court’s
findings justified [termination] on the other grounds announced by the
court.”).

B. Dependency as to Father

¶23 Father also argues the evidence did not support an
adjudication of dependency. Because we affirm the termination of Father’s
rights, his challenge to the dependency is moot. See Sandblom v. Corbin, 125
Ariz. 178, 182 (App. 1980) (“[A] case becomes moot when an event occurs,
. . . which renders the relief sought either impossible or without practical
effect on the parties to the action.”).

C. Requirement to Consider Guardianship

¶24 Mother does not challenge the court’s findings on the
statutory grounds for termination. Instead, she argues the court committed
reversible error by not considering whether a permanent guardianship,
rather than termination of her parental rights, would have been in the
children’s best interests. However, Mother never raised this issue to the
juvenile court, and thus she has waived it on appeal unless she can establish
fundamental error resulting in prejudice. See Christy C. v. Ariz. Dep’t of Econ.
Sec., 214 Ariz. 445, 452, ¶ 21 (App. 2007); Brenda D. v. Dep’t of Child Safety,
243 Ariz. 437, 447, ¶ 37 (2018). And despite Mother’s argument to the
contrary, waiver applies even when a parent alleges the unobjected to lack
of findings are required by law. Christy C., 214 Ariz. at 452, ¶¶ 20, 21.

¶25 Notwithstanding waiver, Mother’s position is not persuasive.
She argues the court needed to consider if a permanent guardianship would
have been a suitable alternative to termination. Her argument rests on her
reading of Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470 (2022). That case
involved termination of parental rights under the length of sentence
ground, which allows a court to terminate parental rights if the parent is
convicted of a felony, and “the sentence of that parent is of such length that
the child will be deprived of a normal home for a period of years.” A.R.S.
§ 8-533(B)(4). After examining the meaning of “normal home” in
§ 8-533(B)(4), our supreme court held in Timothy B. that juvenile courts
should “consider whether another person is willing to be the child’s
permanent guardian and if the grounds for a permanent guardianship exist,
including that a guardianship would be in the child’s best interests” before
terminating parental rights on that ground. 252 Ariz. at 477, ¶ 27. Mother
argues Timothy B.’s reasoning should extend to several other statutory

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grounds for termination, including those on which the court terminated her
rights. We disagree.

¶26 The supreme court rooted its holding in Timothy B. on the
“normal home” language in § 8-533(B)(4); the grounds on which the
juvenile court terminated Mother’s rights do not include similar language.
See A.R.S. §§ 8-533(B)(3) (“[T]he parent is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of dangerous drugs,
controlled substances or alcohol and there are reasonable grounds to
believe that the condition will continue for a prolonged indeterminate
period.”); -533(B)(8)(c) (“The child has been in an out-of-home placement
for a cumulative total period of fifteen months or longer . . . the parent has
been unable to remedy the circumstances that cause the child to be in an
out-of-home placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental care and
control in the near future.”). We decline Mother’s request to extend the
reasoning of Timothy B. to the statutory grounds for termination here.

¶27 Mother acknowledges that Timothy B.’s reasoning relied on
the “normal home” language. Yet she contends that extending its holding
to other termination grounds is appropriate based on several policy
arguments. Setting aside the merits of Mother’s policy arguments, “this
court is not free to amend the unambiguous language of our statutes to
conform to our own notions of public policy.” In re Pinal Cnty. Mental Health
No. MH-201000029, 225 Ariz. 500, 506, ¶ 20 (App. 2010), superseded by statute
on other grounds, as recognized in In re Pima Cnty. Mental Health No.
MH20130801, 237 Ariz. 152 (App. 2015). Public policy concerns do not
allow us to read the “normal home” language in Timothy B. into the other
statutory grounds for termination.

¶28 Moreover, Mother’s policy concerns are unavailing. She
argues that restricting Timothy B. would encourage parents in dependency
actions “to commit felonies in order to preserve their parental rights.”
Mother likewise raises concerns that our reading of Timothy B. will result in
“gamification” by petitioners to avoid guardianships. As an example, she
explains that a petitioner with a felony sentence two years or longer will
necessarily satisfy the 15 months’ time in care ground, A.R.S.
§ 8-533(B)(8)(c), and thus a petitioner could avoid any consideration of a
guardianship under Timothy B. by simply waiting and alleging a ground for
termination that does not require such analysis. But as DCS points out, any
parent may move the court to consider a guardianship during a
dependency proceeding under A.R.S. § 8-872. We find Mother’s concerns
about the implications of our reasoning unpersuasive.

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D. Kinship Placement

¶29 Mother also contends the juvenile court erred by failing to
make statutorily required determinations of whether a relative could have
acted as a suitable placement for the children, both throughout the
dependency proceedings and in the order terminating her parental rights.
See A.R.S. §§ 8-829(A)(4) (“If a child has been removed from the child’s
home, the court . . . shall make the following determinations . . . [i]f the child
is not placed with a grandparent or another member of the child’s extended
family including a person who has a significant relationship with the child
within sixty days after the child is removed from the child’s home, why
such placement is not in the best interests of the child.”); -847(E)(1) (“At any
periodic review hearing the court shall determine . . . [w]hether the
department has identified and assessed placement of the child with a
relative or person who has a significant relationship with the child.”);
-538(C) (“If the court finds that placement with a grandparent or another
member of the child’s extended family including a person who has a
significant relationship with the child is not in the child’s best interests, the
court shall make specific written findings in support of its decision.”).

¶30 Mother also argues there was evidence of a suitable kinship
placement and any findings by the court to the contrary were an abuse of
discretion. However, as with her arguments related to guardianship,
Mother did not object to the court’s lack of findings, and we will reverse
only on a showing of fundamental error. Brenda D., 243 Ariz. at 447, ¶ 37.

¶31 As to Mother’s argument that the court had to make findings
about a potential kinship placement in its termination order, Mother lacks
standing to challenge any placement determination after her rights were
terminated. See In re O.M., 254 Ariz. 543, 545, ¶ 9 (App. 2023). And to the
extent that Mother argues the court erred by failing to make such findings
during the dependency, she has not shown fundamental error.

¶32 Under that standard of review, Mother needs to show the
court’s error was prejudicial. Brenda D., 243 Ariz. at 447–48, ¶ 38. Mother
must affirmatively prove prejudice by showing that a reasonable fact finder
could have reached a different result—she cannot rely on mere speculation.
Id. at 448, ¶ 38. Mother’s briefing highlights several potential family
members who might have served as a placement rather than the foster
family, but she provides no evidence the resulting placement would have
changed. Thus, even assuming the court erred by failing to make findings
about potential kinship placement during the dependency, Mother has not
shown she was prejudiced by the error.

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CONCLUSION

¶33 We affirm.

B E C K E, J., concurring in part and dissenting in part:

¶34 I agree with the superior court’s termination of Mother’s
rights and therefore join in ¶¶ 1–10 and ¶¶ 24–32 of the majority decision.
I must respectfully depart from my colleagues with regard to the
termination of Father’s rights based on abandonment.

¶35 Father did not abandon C.M.; Father was deported.

¶36 The superior court found—by clear and convincing
evidence—the existence of two grounds for the termination of Father’s
parental rights: abandonment under A.R.S. § 8-533(B)(1) and substance
abuse under A.R.S. § 8-533(B)(3). The majority declines to address the
superior court’s substance abuse finding for good reason—it is untenable.
A review of the evidence in the light of our supreme court’s recent guidance
on abandonment in In re B.W., ___ Ariz. ___, 572 P.3d 88 (2025), shows the
abandonment finding to be just as untenable.

I. The Superior Court Abused Its Discretion in Terminating
Father’s Rights Based on Substance Abuse.

¶37 C.M. was born in early October 2023. His Father was
incarcerated in California at that time and did not learn until a week later
that C.M. had been born. Father was deported to Tijuana, Baja California,
Mexico on November 23, 2023 and later made his way to Nogales, Sonora,
Mexico.

¶38 Father returned to the United States in May 2024. On June 3,
2024, he contacted DCS by telephone and met with the DCS case manager
on June 7. Father—then 48 years old—reported he had abused alcohol and
cocaine when he was in his 20s but admitted to drinking and using cocaine
as recently as April 2024. DCS noted Father to be “willing to engage in []
services,” “already ha[d] a job,” and was “working hard to be able to . . . get
an apartment.”

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Becke, J., concurring in part and dissenting in part
¶39 By June 11, Father had completed paternity testing, which
confirmed for the first time that he was C.M.’s father. He completed hair
follicle drug testing on July 12, with negative results as to all substances.
DCS’s September 9, 2024 progress report stated Father was testing negative
for all substances, engaging in weekly supervised visitation with C.M., had
stable employment, and had secured appropriate housing.

¶40 DCS’s November 22, 2024 progress report said that Father
“ha[d] been consistent with his engagement with [DCS] and ha[d] mostly
tested negative for substances” while noting that he had twice tested
positive for methamphetamine in late October and early November. The
report went on to state:

[Father] has demonstrated notable progress, maintaining
steady employment as a team lead at a construction company
and actively supporting [Mother] and the household
financially. He has consistently engaged with [DCS] and
completed most of his scheduled drug tests, with only minor
setbacks. [Father’s] commitment to visitation and
participation in [C.M.’s life] highlights his dedication as a
father.

¶41 Two of Father’s seven tests in December 2024 were positive
for methamphetamine, so he was referred by DCS to Terros for substance
abuse treatment. Father completed his intake assessment with Terros on
February 7, 2025. He reported that he had a history of alcohol abuse and a
DUI in 2002 but had not consumed alcohol for the preceding six months.
He also reported that the first time he had ever used amphetamines was in
2024. Father denied ever receiving any kind of substance abuse treatment
in the past. He was diagnosed with mild alcohol use disorder in early
remission and mild amphetamine abuse disorder.

¶42 Father began Terros’s standard outpatient program in early
February 2025—a treatment program that was to last eight months and the
first treatment Father had ever received. A month later, in its March 10, 2025
report, DCS reported that, in contrast to the fathers of V.M., E.M., M.M.,
and J.M., Father “is actively engaging with the Department. He has been
regularly testing and participating in the substance abuse program. [He]
also has stable housing and a steady job.”

¶43 Just over two weeks later, DCS argued to the superior court
that—by clear and convincing evidence—Father was “unable to discharge
parental responsibilities because of . . . a history of chronic abuse of
dangerous drugs, controlled substances or alcohol and there [were]

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 IN RE TERM OF PARENTAL RIGHTS AS TO V.M., et al.
Becke, J., concurring in part and dissenting in part
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” § 8-533(B)(3). The superior court agreed.
I believe it abused its discretion in so concluding.

¶44 Given that parents have a fundamental liberty interest in the
“care, custody and management of their child,” Santosky v. Kramer, 455 U.S.
745, 753 (1982), termination of the parent-child relationship “should be
resorted to only when concerted effort to preserve the relationship fails,”
Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 581, ¶ 20 (2021) (cleaned up).
This principle applies to terminations for chronic substance abuse, Jennifer
G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 n.3 (App. 2005), and
requires the state to “provide a parent with the time and opportunity to
participate in programs designed to improve the parent’s ability to care for
the child,” Mary Ellen C. v. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 37 (App.
1999) (emphasis added).

¶45 Although Father began engaging with DCS services in June
2024, he did not begin drug treatment until February 2025. That delay is
explained by the fact that, until his positive drug tests in late October and
early November 2024, DCS did not believe Father needed drug treatment.
Father provided a negative hair follicle test in June 2024 and a series of
negative urine drug screens in the months that followed. Only when he
failed several tests in late 2024 was he referred for drug treatment.

¶46 Once that referral occurred, Father consistently tested
negative for all substances. He was described by DCS as “engaging” and
“actively participating” in his substance abuse treatment. His progress
reports from Terros were “favorable.” He was about a month and a half into
the eight-month treatment program when the termination adjudication
hearing occurred.

¶47 Although our standard of review is highly deferential to the
superior court’s findings of fact, we can reject those findings when they are
“clearly erroneous.” E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58, ¶ 9 (App.
2015). The superior court concluded—by clear and convincing evidence—
that Father was (1) unable to discharge his parental responsibilities, (2)
because of chronic drug abuse, and (3) that his drug abuse would continue
for “a prolonged indeterminate period.” In light of the evidence presented,
all three findings are clearly erroneous.

¶48 But even if the court’s conclusions about Father’s drug abuse
were supportable, DCS must do more. It has a constitutional obligation to
provide Father with the “time and opportunity” to participate in programs
designed to address his drug abuse. Mary Ellen C., 193 Ariz. at 192, ¶ 37.

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 IN RE TERM OF PARENTAL RIGHTS AS TO V.M., et al.
Becke, J., concurring in part and dissenting in part
Proceeding with a termination adjudication hearing just weeks after Father
began (and more than six months before he would have completed) drug
treatment for the first time in his life does not meet that obligation. I would
reverse the superior court’s judgment terminating Father’s parental rights
based on § 8-533(B)(3).

II. The Superior Court Should Have the Opportunity to Consider the
Abandonment Ground for Termination in Light of In re B.W.

¶49 Following the termination adjudication hearing in late March,
the court issued its order terminating Father’s parental rights on May 2,
2025. On July 17, 2025, our supreme court issued its opinion in In re B.W.,
__ Ariz. __, 572 P.3d 88 (2025). That opinion marked a substantial shift 6 in
the analysis employed by Arizona courts when considering claims of
abandonment under § 8-533(B)(1).

¶50 Before the supreme court’s opinion in In re B.W., “just cause”
was not treated as an exception to abandonment. Instead, it was “merely a
rebuttal” to the “presumption of abandonment” contained in § 8-531(1):
“[f]ailure to maintain a normal parental relationship with the child without
just cause for a period of six months constitutes prima facie evidence of
abandonment.” See In re B.W., 1 CA-JV 23-0202, 2024 WL 1172862, at *3, ¶
18 (Ariz. App. Mar. 19, 2024) (mem. decision), rev’d, 572 P.3d 88 (2025). In
other words, a finding of “just cause” would only dispel the evidentiary
presumption of abandonment when a parent had not maintained a normal
parental relationship for six months. The existence of “just cause” did
nothing to excuse a parent’s failure “to provide reasonable support and to

6 “It is the general rule that when there is a change of law by judicial
decision between the time of trial and the time of appeal the appellate court
will dispose of the case according to the law prevailing at the time of the
appellate disposition and not according to the law prevailing at the time of
rendition of the judgment appealed.” Arnold v. Knettle, 10 Ariz. App. 509,
511 (1969); accord State v. Evans, 252 Ariz. 590, 595, ¶ 11 (App. 2022) (“Any
change in the law, whether procedural or substantive, applies to cases on
direct review, even if the defendant’s trial has already concluded.”) (citing
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). However, In re B.W. is not,
strictly speaking, a “change in the law,” rather it is our supreme court’s
clarification of what the law has always been. See Rivers v. Roadway Express,
Inc., 511 U.S. 298, 313 n.12 (1994) (clarifying that, when interpreting a
statute, an appellate opinion is a declaration of what the law “had always
meant”); accord O'Brien v. Escher, 204 Ariz. 459, 465, ¶ 21 (App. 2003).

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 IN RE TERM OF PARENTAL RIGHTS AS TO V.M., et al.
Becke, J., concurring in part and dissenting in part
maintain regular contact with the child” or a parent making “only minimal
efforts to support and communicate with the child.” § 8-531(1).

¶51 The superior court’s order terminating Father’s rights reflects
that understanding of abandonment. Despite 25 pages of detailed findings,
the order mentions “just cause” only once: a single recitation of the
definition of abandonment contained in § 8-531(1). The order contains no
analysis of just cause, nor does it analyze whether Father’s deportation
could constitute just cause. To be fair, until In re B.W. was decided by our
supreme court, there was no reason for the superior court to conduct that
analysis. Nor was there good reason for Father to offer evidence showing
why his deportation was just cause for his failure to “provide reasonable
support and to maintain regular contact with” C.M. Because just cause was
not considered an exception to abandonment, the existence of just cause
would not have negated a finding of abandonment.

¶52 But our understanding of abandonment shifted when the
supreme court decided In re B.W. Even “where abandonment is presumed,
if a parent can show ‘just cause’ for failing to maintain a normal parental
relationship under the circumstances, the claim of abandonment fails as
unproven.” In re B.W., __ Ariz. at __, ¶ 19, 572 P.3d at 95. “’[J]ust cause’ is
an exception to abandonment.” Id.

¶53 “[P]arents have ‘just cause’ when they had a reasonable and
fair justification for not maintaining a normal parental relationship with the
child and relied on that justification in good faith.” Id. at __, ¶ 24, 572 P.3d
at 96. When determining whether a parent has abandoned a child, the
“court must also consider additional facts and circumstances that may have
fairly and reasonably impacted [the parent’s] understanding of what
conduct was feasible and any resulting consequences.” Id. at ___, ¶ 25, 572
P.3d at 97.

¶54 In making that determination, the “court should examine
what a parent has done to facilitate a normal parental relationship[,] but it
must also consider that the parent’s conduct—or ability to ‘do
something’—may be affected by a parent’s reasonable, good faith belief that
circumstances exist that preclude the parent from exercising traditional
methods of maintaining a normal parental relationship.” Id. at ¶ 26
(emphasis added).

¶55 Although the court heard no direct evidence regarding
Father’s personal circumstances during the period of his deportation, there
is strong circumstantial evidence that the deportation was a significant
obstacle to Father’s ability to establish and maintain a parental relationship

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 IN RE TERM OF PARENTAL RIGHTS AS TO V.M., et al.
Becke, J., concurring in part and dissenting in part
with C.M. That evidence is simply this: Father did not communicate 7 with
DCS or C.M., or attempt to visit C.M., during the period of his deportation
(and the record does not suggest any way he could have done so). Yet
immediately upon Father’s return to the United States, Father was fully
engaged with DCS and took every opportunity to visit with C.M. The
difference between Father’s engagement during the deportation and his
engagement afterwards can only be described as “night and day.”

¶56 The stark difference between Father’s parenting conduct
while the obstacle of deportation existed and his conduct once that obstacle
was removed illustrates that the fact of his deportation may be the “but for”
cause of Father’s failure to maintain a parental relationship with C.M. In
light of the gravity of the constitutional rights at issue and the supreme
court’s opinion in In re B.W., Father should have the opportunity to present,
and the superior court should have the opportunity to consider, evidence
of whether Father’s deportation was “just cause” for that failure.

¶57 I would vacate the superior court’s termination of Father’s
parental rights as to C.M. and remand for a hearing where Father’s evidence
of “just cause” can be considered. For that reason, I respectfully dissent.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

7 The evidence reflects that DCS first obtained Father’s contact information

on March 22, 2024. The DCS case manager testified that she tried calling
Father several times and sent him a single text message but was not able to
“have a conversation” with him until he returned to the United States in
June 2024.

17