Rodney L., Deana L. v. Dcs, J.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RODNEY L., DEANA L., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, J.L., Appellees.

No. 1 CA-JV 19-0087
FILED 2-27-2020

Appeal from the Superior Court in Mohave County
No. L8015JD201707004
The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Harris & Winger PC, Flagstaff
By Chad J. Winger
Counsel for Appellant, Mother

Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant, Father

Arizona Attorney General’s Office, Phoenix
By Lauren J. Lowe
Counsel for Appellee, Department of Child Safety
 RODNEY L., DEANA L. v. DCS, J.L.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.

C A M P B E L L, Judge:

¶1 Rodney L. (“Father”) and Deana L. (“Mother”) appeal the
superior court’s order terminating their parental rights to their son, J.L.
Father argues the Department of Child Safety (“DCS”) provided
insufficient evidence to support the statutory ground of fifteen months time
in care, that his participation in services should overcome the grounds for
termination, and that termination would not be in the best interests of the
child. Both parents argue DCS failed to make diligent efforts to provide
appropriate reunification services. Here, sufficient evidence supports the
superior court’s findings. We affirm.

BACKGROUND

¶2 Father and Mother have one child together, a boy born in
2015. Father has an extensive history of domestic violence with his intimate
partners prior to and including his relationship with Mother. DCS got
involved in late-December 2016 after a physical altercation in the child’s
presence and left Mother with severe bruising and swelling on her face.
Father reportedly punched Mother in the face, and she responded by
kicking Father in the groin. Father recorded the fight with his cell phone,
and when Mother tried to take the phone from Father, he threw it at her
face. Mother ran from the house screaming for neighbors to call 911. Both
parents were arrested.

¶3 At an investigatory interview, both parents downplayed the
severity of the fight, blaming it on stress. However, once Father left the
interview, Mother admitted to another domestic violence incident from the
year prior. DCS helped Mother and the child move out of the home.

¶4 Shortly thereafter, Mother disclosed that there were over two
years of physical and emotional domestic violence by Father, going back as
far as to when she was pregnant with the child, and Father pushed Mother
down the stairs. She disclosed another instance where Father choked her
until she passed out, reportedly telling her to “just go with it.” Mother’s

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doctors believe this loss of oxygen to her brain may have caused Mother’s
memory issues. Mother also suffers from obsessive compulsive disorder
and depression, and Father would not let her take medication for either
condition.

¶5 DCS warned Mother that because of the extensive history of
domestic violence and abuse, and the risks it posed for the boy, DCS would
take custody of the child if she returned to Father. The next month, Mother
obtained an order of protection against Father, filed for divorce, and filed
for emergency temporary custody of the child. However, a few days after
filing, Mother dropped the order of protection and returned to live with
Father.

¶6 Within the next month, Mother and Father engaged in
another altercation, resulting in Mother’s arrest for domestic violence and
criminal damage. Reportedly, Father wanted Mother to meet him at home
to provide him a copy of the dropped order. Mother went to the home to
do so but changed her mind, which lead to an altercation. After Mother got
out of jail, she got a second order of protection against Father.

¶7 As warned, DCS took custody of the child in January 2017 and
filed a dependency petition alleging the child to be dependent regarding
both Mother and Father. DCS asserted Mother failed to treat her mental
health, Father neglected the child due to substance abuse, and that both
parents exposed the child to significant acts of domestic violence. In March
of 2017, the superior court found the child dependent regarding both
parents.

¶8 DCS referred both parents for services including drug testing,
psychological evaluations, individual counseling, domestic violence
counseling, and supervised visitation. DCS also referred Father for
substance abuse treatment.

¶9 Mother and Father both completed psychological evaluations
with Dr. Stephen Gill. Dr. Gill gave each parent a guarded prognosis
regarding their ability to safely parent the child in the future, citing “serious
concern” for parents’ violent history. Dr. Gill recommended Mother
continue with mental health treatment, but specifically discouraged
couples’ therapy “due to the severity” of parents’ domestic violence.
Dr. Gill conditioned Father’s ability to safely parent the child “on his ability
to demonstrate that he is not a candidate to engage in or return to his violent
behaviors with” Mother, and recommended that Father meet weekly with

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a therapist who has an extensive background in substance abuse and
domestic violence recovery.

¶10 In July 2017, Father completed a bonding and best interests
assessment with Dr. Kathryn Menendez. Dr. Menendez noted that Father
downplayed the potential risks that witnessing domestic violence could
cause to the child’s health and instead focused heavily on Mother’s mental
health. Dr. Menendez concluded that although Father and the child have a
good bond, Father “fails to accept full responsibility for his domestic
violence issues and his problematic relationship with” Mother, “fails to
acknowledge the emotional and physical threat to the children” from his
aggression, and “minimizes his past history, heavily emphasizing his wife’s
limitations.” Dr. Menendez also noted a potential increase in “stressors”
which may cause Father’s “propensity to violence [to] increase” as he and
the child grow older. Because of Father’s likelihood of continued
aggression, Dr. Menendez concluded “[t]his would be a high-risk
reunification.”

¶11 While both parents participated in services, both failed to
make the behavioral changes necessary to safely parent the child, and
instead remained in their combative relationship until they divorced in
December 2018. Moreover, against professional recommendations, parents
began couples counseling through their church, and Father moved to have
all services provided jointly.

¶12 In October 2017, the superior court denied Father’s motion for
joint services and changed the case plan from family reunification to
severance and adoption. DCS then moved to terminate Mother and Father’s
parental rights, alleging the statutory grounds of neglect and nine months
time in care. In May 2018, DCS amended its motion to add the statutory
ground of fifteen months time in care.

¶13 The court held a joint contested hearing in the summer of 2018
but the hearing resulted in a mistrial once the court granted a request to
bifurcate Mother and Father’s termination hearings. The court then held a
contested termination for Father in February 2019 and, separately, for
Mother in March 2019. The court terminated both parents’ rights to the
child.

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DISCUSSION

I. Termination Ground

¶14 To terminate a parent-child relationship, the superior court
must find at least one statutory ground for severance under A.R.S.
§ 8-533(B) by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005). The court must also find severance is in the child’s best
interests by a preponderance of the evidence. Id.

¶15 We review the court’s severance determination for an abuse
of discretion and will affirm unless no reasonable evidence supports the
court’s findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004). The superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of the witnesses, and
resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004).

¶16 The superior court may terminate parental rights under the
fifteen month out-of-home placement ground if it finds that (1) “[t]he child
has been in an out-of-home placement for a cumulative total period of
fifteen months or longer”; (2) “the parent has been unable to remedy the
circumstances” causing the out-of-home placement; and (3) “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.” A.R.S.
§ 8-533(B)(8)(c).1

¶17 The superior court must also find that DCS made diligent
efforts to provide appropriate reunification services. A.R.S. § 8-533(B)(8).
DCS makes diligent efforts to provide appropriate reunification services
when it provides a parent with the “time and opportunity to participate in
programs designed to improve the parent’s ability to care for the child.”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 94, ¶ 20 (App. 2009). DCS
“is not required to provide every conceivable service or to ensure that a
parent participates in each service it offers.” Maricopa Cty. Juv. Action No.
JS-501904, 180 Ariz. 348, 353 (App. 1994).

A. Father

¶18 Father argues no reasonable evidence supports the fifteen
month time in care ground for terminating his parental rights by

1 Absent material changes from the relevant date, we cite the current
version of rules and statutes.

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challenging the credibility of Mother and his ex-wife regarding other acts
of domestic violence and points to a single arrest of domestic violence as
support for this claim. Father asserts that even if DCS painted him as
controlling and manipulative, this was not grounds for termination. Father
also argues that termination was improper because he participated in
services. Lastly, Father argues that DCS failed to make diligent efforts to
provide appropriate rehabilitation services.

¶19 Father’s first argument is not substantiated by the record.
Upon due consideration of the evidence and testimony, the superior court
specifically found that Father had a significant history of committing acts
of domestic violence which dated back as early as 2002. This finding is
supported by testimony from Mother that Father would engage in “violent
episodes” “sometimes daily, sometimes weekly.”

¶20 We will not reweigh evidence, but rather we view all evidence
and reasonable inferences therefrom in the light most favorable to affirming
the superior court’s order. Jordan C., 223 Ariz. at 93, ¶ 18.

¶21 Mother disclosed numerous examples of Father’s violence to
DCS. During her pregnancy, Father would choke her until she felt like she
was going to lose consciousness and punch her in the stomach. Mother
testified that her obstetrician told her she “start[ed] to have a miscarriage.”
The physical abuse continued after the child was born. Mother testified that
Father choked her painfully, beat her with a stick on the bony parts of her
body, dragged her across gravel, pushed her down the stairs, and punched
her in the head and body while she was holding the child.

¶22 Father would psychologically abuse Mother as well, which
aligned with DCS’s evidence that Father was controlling and manipulative.
Father refused to allow Mother to take medication for her OCD, which
impaired her self-esteem, anxiety and, “ability to function.” When Father
would respond violently to Mother’s anxious and obsessive behavior, he
would blame Mother, making her believe that “if [she] didn’t poke the bear
then [she] wouldn’t have been abused.” Father would berate Mother for
having mental illnesses, call her crazy, and tell her she deserved to burn in
hell.

¶23 At least two times Father threatened to kill Mother. On
another occasion, Father threatened to push Mother out a window while
she was holding the child so they both would “fall to the ground.” Father
referred to the child as Mother’s “human shield.” In fact, the child was

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Decision of the Court

either present, nearby, or in Mother’s arms for many domestic violence
incidents.

¶24 Father also tried to control Mother. There were times he
refused to let Mother see her own family and certain friends. Mother
disclosed that on multiple occasions, Father told her “if she didn’t lie [in
court], he would make her out to be crazy.”

¶25 Father’s abuse “got progressively worse” over time. Mother
reported that “the verbal abuse became so bad that [she told Father] to just
kill her because she couldn’t take it anymore.” Father continued his
controlling abusive behavior with Mother throughout the relationship, up
until the parents divorced in December 2018, only two months before the
termination hearing.

¶26 Accordingly, while Father’s argument centers primarily on
his single arrest for domestic violence giving rise to DCS’s involvement in
December of 2016, reasonable evidence in the record supports the superior
court’s finding that Father engaged in multiple acts of domestic violence.

¶27 Father also argues against termination by asserting that he
participated in services. It is true Father participated in services, except that
he did not obtain proper counseling until after August 2018. Based on
Dr. Gill’s recommendation, DCS required him to engage in individual
counseling with a licensed therapist who had significant training in
domestic violence and substance abuse. The case manager discussed this
requisite with Father, but he insisted on seeing his own counselors who did
not meet the professional requirements.

¶28 The court expressly acknowledged that Father participated in
other services. However, as DCS noted, “engagement is not the same as a
behavioral change.” The court found that although Father “completed
classes and counseling, he has no insight into his domestic violence.” The
DCS case manager testified that, even after the first trial, Father believed he
did “not need to make behavior changes.” Instead, Father said that “all of
the allegations made by [DCS] are false or based on lies.” Father continually
blamed others for the situation including Mother and her parents for lying
to DCS, Mother’s attorney for “inventing a smear campaign against him,”
and DCS for being “corrupt.”

¶29 Father also claimed that Mother and her mental illness are the
reasons why the child was removed. The case manager testified that “even
when [Father] does take responsibility, it is with stipulations, . . . meaning
he admits to violence but then sees that violence as acceptable because it’s

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Decision of the Court

in response to [Mother] or [that] she’s crazy so [Father] had no choice but
to act with violence . . . .”

¶30 The court also referenced Father’s history of domestic
violence in his prior relationships, dating back to 2002. From 2002 to 2011,
DCS received numerous reports of violence between Father and his ex-wife.
In these reports, Father’s ex-wife and older children disclosed that Father
was abusive and that they were afraid of him. Evidence at trial showed
Father engaged in a pattern of domestic violence spanning at least 16 years
and had engaged in domestic violence counseling on multiple occasions,
with no positive change noted.

¶31 The case manager concluded that Father’s actions “show[] a
lack of insight, a lack of personal judgment, and ultimately a failure to
accept responsibility.” This testimony is consistent with that of other
professionals overseeing the case. Father’s counselor at Interagency noted
that while Father “shows resp[onsibility] for his actions,” he “downplay[s]
it.” Dr. Gill testified that Father acknowledged the December 2016 charges
of domestic violence, but “did not admit that he was engaged in domestic
violence and instead felt that he was being victimized by [Mother] and her
family.” Dr. Menendez concurred that Father blamed others and generally
downplayed the domestic violence. The case manager and Dr. Gill also
testified about how witnessing domestic violence is extremely harmful to
children. DCS further explained that the child is “extremely vulnerable
due to his age,” and that because of parents’ “erratic and unpredictable”
behavior, “neither parent is able to provide the child with a safe home free
from abuse or neglect.”

¶32 On this evidence, the court found Father has been unable to
remedy the circumstances that cause the child to be in an out-of-home
placement, and that there is a substantial likelihood Father will not be
capable of exercising proper and effective parental care and control in the
near future.

¶33 Father next argues termination was improper because DCS
failed to make diligent efforts to provide appropriate reunification services
by failing to increase visitation with the child, failing to formulate a
transition plan, and failing to direct him to an appropriate therapist.2

2 In his reply brief, Father cites more services that he claims DCS
should have provided. Because he did not raise these in his opening brief,

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Decision of the Court

¶34 First, Father fails to develop his argument or cite to the record
in support of his claim that visitation “was supposed to be six hours per
week but was never more than four hours per week.” See ARCAP 13(a)(7)
(requiring an “argument” contain the appellant’s “contentions concerning
each issue presented for review, with supporting reasons for each
contention, and with citations of legal authorities and appropriate
references to the portions of the record on which the appellant relies”). He
also did not raise this concern with the superior court. See Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179 (App. 2014) (“A parent who does
not object [to the adequacy of services] in the juvenile court is precluded
from challenging that finding on appeal.”). When Father did raise a
visitation issue to the superior court, he limited his argument to specific
missed visits between April and August 2017. The court held an
evidentiary hearing and ruled on the issue. Finally, contrary to Father’s
argument, records show he was in fact receiving over four hours of
supervised visitation each week.

¶35 Next, Father contends DCS should have created a plan to
transition the child back into his custody because he was participating in
services. Father’s argument ignores the fact that he was still engaging in a
violent relationship with Mother for most of the dependency and, as
discussed above, failed to make the requisite behavioral changes in order
to be able to safely parent the child. This is consistent with the court’s
findings and we will not reweigh the evidence on appeal. Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280 (App. 2002).

¶36 Finally, Father’s argument relies on DCS’s alleged failure to
direct him to an appropriate counselor. Foremost, DCS “is not required to
provide every conceivable service.” Maricopa Cty. Juv. Action No-JS-501094,
180 Ariz. 348, 353 (App. 1994). Besides, the record shows DCS provided
Father with individual counseling with an approved licensed counselor to
address domestic violence treatment, and Father participated in this
service. However, DCS explained he would need to find a licensed
counselor specializing in substance abuse treatment in addition to the
domestic violence counseling. Per this record, Father never sought a
substance abuse counseling referral from DCS. Instead, Father arranged for
counseling on his own through his church pastor.

we do not address them. See Ariz. Dep’t of Revenue v. Ormond Builders, Inc.,
216 Ariz. 379, 385 (App. 2007).

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Decision of the Court

¶37 Reasonable evidence supports the fifteen month time in care
ground for terminating his parental rights and that DCS made diligent
efforts to provide appropriate rehabilitation services.

B. Mother

¶38 Mother argues termination pursuant to the statutory ground
of fifteen months time in care is not appropriate because DCS failed to make
diligent efforts to provide adequate rehabilitation services. Mother names
three specific services DCS allegedly failed to provide: a psychiatric
assessment, boundary-setting treatment, and a follow-up psychological
evaluation. Mother also argues that DCS failed to adequately develop a
case plan for Mother after August of 2017 by failing to consider her status
as a domestic violence victim.

¶39 For purposes of this appeal, Mother has waived any issues
with respect to inadequate provision of mental health or domestic violence
services because Mother did not raise these issues in the superior court at
the dependency hearing nor at the termination hearing, and we generally
do not consider any issue on appeal that was not raised below. See Shawanee
S., 234 Ariz. at 178–79, ¶ 16.

¶40 Even if Mother had not waived the issue, the record shows
she was provided with all but one of the services she claims were not
provided. Mother received mental health services through her own
providers throughout the dependency, and those mental health providers
offered psychiatric services. Mother also received training on setting
healthy boundaries through Southwest Behavioral & Health Services.
Additionally, Mother was provided with domestic violence victims’
counseling through Interagency and again later through Southwest
Behavioral & Health Services.

¶41 The only service Dr. Gill recommended that DCS did not
provide to Mother was a follow-up psychological evaluation. However, the
purpose of a follow-up evaluation would have been to “determine her level
of treatment progress,” and was contingent on the case manager’s
agreement that it was necessary to do so. Thus, such service was not
required, but rather solely within the agency’s discretion. Dr. Gill testified
there were no other services that DCS could have provided Mother that
would have resolved her domestic violence issues. Accordingly, reasonable
evidence supports the court’s finding that DCS made diligent efforts to
provide appropriate reunification services.

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II. Best Interests

¶42 Father argues that DCS presented insufficient evidence to
support the court’s best interests finding. We disagree.

¶43 In considering whether termination of parental rights is
appropriate, the superior court must find termination is in the Children’s
best interests by a preponderance of the evidence. Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). Termination of parental rights is in
the children’s best interests if termination would benefit the children or if
continuation of the relationship would harm the children. Aleise H. v. Dep’t
of Child Safety, 245 Ariz. 569, 572, ¶ 9 (App. 2018) (internal citation omitted).

¶44 Once the court’s focus shifts to the best interests analysis, the
“foremost concern is protecting a child’s interest in stability and security.”
Id. (internal quotations omitted). The superior court also considers whether
the current placement is meeting the child’s needs and whether the
placement wants to adopt the child. Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 377, ¶ 5 (App. 1998) (internal citations omitted). “The existence
and effect of a bonded relationship between a biological parent and a child,
although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98–99, ¶ 12
(App. 2016).

¶45 Here, reasonable evidence supports the court’s determination
that termination would be in the child’s best interests because continuation
of the relationship would be harmful to the child. Father never gained
insight into or took responsibility for his role in a 16-year pattern of
domestic violence, leaving him susceptible to repeating the cycle. Not once
during the dependency did Father acknowledge the harm that domestic
violence has on the child. Father never acknowledged how he jeopardized
the child’s health and wellbeing by making him a witness to his parents’
discord and violence. The court heard testimony that witnessing domestic
violence can have a negative impact on a child’s brain development,
including increased susceptibility to mental health issues, substance abuse,
and future violent relationships. The court also heard evidence that
termination of Father’s rights would benefit the child. The child is in a
family placement where his needs are being met, and he is thriving in their
care. The home is free of violence and neglect and would provide the child
permanency and stability because the family is loving and wishes to adopt
the child. In light of the evidence presented, the court did not abuse its
discretion in finding that termination was in the child’s best interests.

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III. Ineffective Assistance of Counsel

¶46 Father argues the superior court erred in finding that he failed
to establish his ineffective assistance of counsel claim. Father and DCS
suggest that Arizona courts have recognized that the law permits relief for
ineffective assistance of counsel in a proceeding to terminate parental
rights.

¶47 However, Arizona case law appears to leave open the
question of whether we have expressly adopted ineffective assistance of
counsel claims in the context of dependency or severance proceedings, and
we have not articulated any particular standard for what those claims
would require. See, e.g., John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 322–
25, ¶¶ 8–17 (App. 2007) (summarizing arguments for and against
recognizing ineffective assistance of counsel as constitutional grounds for
reversible error in a severance case but ultimately declining to resolve the
issue). Here, even if Arizona were to recognize an ineffective assistance of
counsel claim in dependency proceedings, Father’s appeal is untimely, and
we lack jurisdiction to consider it. Ariz. R.P. Juv. Ct. 104(A) (“A notice of
appeal shall be filed with the clerk of the superior court no later than 15
days after the final order is filed with the clerk.”); Pima Cty. Juv. Action No.
S-933, 135 Ariz. 278, 279 (1982) (“The failure to file an appeal in a timely
fashion deprives the appellate court of jurisdiction.”).

¶48 The superior court heard evidence regarding Father’s
ineffective assistance of counsel claim during the initial joint termination
hearing. At Father’s own insistence, the court issued a ruling on October 26,
2018, determining that Father failed to establish that he was provided
ineffective assistance of counsel. Father did not appeal that order.

¶49 Because Father did not file an appeal to that order, we do not
have jurisdiction to consider the issue. The issue has been waived.

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CONCLUSION

¶50 For the foregoing reasons, we affirm.3

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

3 Because we affirm the termination order under the fifteen month
out-of-home placement ground, we need not consider the parents’
arguments regarding the remaining grounds. Jesus M., 203 Ariz. at 280, ¶ 3.

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