Levi R. v. Dcs, E.R.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEVI R., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.R., Appellees.

No. 1 CA-JV 22-0016
FILED 9-27-2022

Appeal from the Superior Court in Maricopa County
No. JS519937
The Honorable Lori Bustamante, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Department of Child Safety

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.
 LEVI R. v. DCS, E.R.
Decision of the Court

G A S S, Vice Chief Judge:

¶1 Levi R. (father) appeals the superior court’s order terminating
his parental rights. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological parent of a now-five-year-old child. In
2017, the child’s mother tried to place the child for adoption without
father’s consent. At that point, the Department of Child Safety (DCS) began
the 2017 dependency. Father participated in visitation, parent-aide services,
substance-abuse treatment, counseling, and family-reunification services.
The superior court ultimately dismissed the 2017 dependency and awarded
father sole legal decision-making.

¶3 After that, DCS continued receiving reports of violent
incidents involving father. During one incident, father punched and tried
to strangle his wife—who was not the child’s mother—while the child was
in the backseat of a moving vehicle. Later, when father and the child were
living in Illinois, father’s relatives locked themselves in a room and called
police because father became violent, and they were scared he would hurt
them. The same month, father took the then-two-year-old child with him to
purchase drugs. The exchange turned sour, and father fled after being shot,
leaving the child at the scene.

¶4 By March 2020, father and the child were living in Nevada.
Father left the then-three-year-old child unattended to chase someone
father claimed owed him money. The unattended child crossed a busy
intersection, nearly getting hit by traffic. Father came back and took the
child into a Burger King, only to again leave the child unattended so father
could continue his chase. Police arrested father for child abuse and
endangerment, and the Nevada Department of Family Services (Nevada
DFS) took custody of the child.

¶5 Nevada DFS contacted DCS to transfer the case, believing
Arizona had exclusive continuing jurisdiction. Meanwhile, Nevada DFS
offered father eight virtual visits with the child. Father attended only two,
both of which ended abruptly because father behaved inappropriately,
accusing the child of lying and “grilling” the child about placement. At
some point, the child returned to Arizona, and at the end of March 2020,
father returned as well. DCS contacted father, and he initially agreed to
participate in services but later refused.

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Decision of the Court

¶6 Father was incarcerated for all but a few days of the 2020
dependency and termination actions. On April 5, 2020, while on release
status, father threatened his sister with a knife and told DCS he would not
engage in services. Five days later, police arrested and incarcerated father
for domestic violence and a probation violation. At that point, DCS filed the
2020 dependency. The 2020 dependency is not before this court, and the
record here regarding the 2020 dependency amounts to a few documents
and references in the case worker’s testimony. The record also includes
documents from some of father’s criminal cases.

¶7 Beginning early in the 2020 dependency, the child resisted
visiting father. In April 2020, DCS’s psychologist recommended father not
have visits based on the child’s “behaviors, emotional withdrawal and
dysregulation, and history of instability and trauma.” In July 2020, the court
suspended father’s visits. Father never asked DCS or the superior court to
reinstate his visits. At the termination trial, DCS’s psychologist testified the
child’s history of trauma would have made it “extremely difficult” for
father to use visits while he was in custody to nurture a relationship with
the child.

¶8 On June 27, 2020, father was released from jail and almost
immediately broke into his wife’s apartment. Police arrested father two
days later. He remained incarcerated throughout the rest of the 2020
dependency and termination actions. DCS did not provide services to
father during his incarceration. Father provided documents indicating he
took courses on substance abuse, anger management, conflict resolution,
behavioral change, and coping skills. Father, however, offered no further
supporting evidence on those courses, and DCS did not consider them. The
superior court recognized father’s efforts, but also said father’s
participation did not necessarily mean he made the “behavioral changes
needed for reunification.” And as of the termination adjudication, the
superior court found father still had “no insight into his violent temper and
the [e]ffects his behaviors have had on” the child.

¶9 In May 2021, the child’s guardian ad litem (GAL) petitioned to
terminate father’s parental rights based on the length-of-felony-sentence
ground. See A.R.S. § 8-533.B.4. DCS did not seek to intervene—or ask to
substitute in for the GAL—in the termination action. In July 2021, the GAL
amended the termination petition to add the 15-month out-of-home
placement ground. See A.R.S. § 8-533.B.8(c). The superior court held a
consolidated dependency and termination trial. DCS handled the
dependency portion, and the GAL handled the termination portion. After
the contested trial, the superior court terminated father’s parental rights on

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Decision of the Court

the grounds alleged in a detailed January 2022 ruling. The record in this
appeal does not include the superior court’s ruling in the dependency
action.

¶10 Father timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A, 12-
120.21.A.1, and 12-2101.A.1.

ANALYSIS

I. Father Waived Any Objection to DCS Participating in this Appeal.

¶11 The 2020 dependency is not before this court. In this
termination action, DCS neither moved to substitute in for the GAL nor
moved to intervene. Even so, DCS filed the only answering brief in this
appeal. We asked father, the GAL, and DCS to brief DCS’s ability to
participate in this appeal under those circumstances.

¶12 DCS argues it has standing to appear in this appeal from a
termination trial and argues father waived any challenge to its participation
in the appeal. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179,
¶ 16 (App. 2014) (a parent who does not raise the issue in the superior court
is precluded from challenging that finding on appeal). But having standing
is not the same as being a party. See Bechtel v. Rose In & For Maricopa Cnty.,
150 Ariz. 68, 72 (1986) (standing is only one factor courts look at to
determine if a party can intervene in an action). Father, in his supplemental
brief, argues for the first time DCS did not have standing to file the
answering brief on appeal because DCS was not a party to the severance
petition. The superior court’s under-advisement ruling does say DCS was
a party “to these proceedings.” Father did not seek any changes to that
ruling in the superior court, and father did not raise the issue in his opening
brief. In our discretion, we apply waiver here. See Logan B. v. Dep’t of Child
Safety, 244 Ariz. 532, 536, ¶ 9 (App. 2018) (“[T]he decision to find waiver is
discretionary.”). Father, thus, waived the issue of DCS’s standing to file an
answering brief on appeal. 1

1To be sure, the better practice is for DCS to formally join as a party to avoid
all doubt. Alternatives include moving to substitute in as a petitioner or
seeking leave to intervene.

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II. The Superior Court Need Not Consider a Permanent
Guardianship When Terminating a Parent’s Rights Based on a
15-Months’ Time in Care Ground.

¶13 Father argues the superior court “should [have] consider[ed]
the availability of permanent guardianship” for the 15-months’ time in care
ground because he was incarcerated. See Timothy B. v. Dep’t of Child Safety,
252 Ariz. 470, 477, ¶ 27 (2022). This court reviews de novo “legal issues
requiring the interpretation and application of § 8-533.” Jessie D. v. Dep’t of
Child Safety, 251 Ariz. 574, 580, ¶ 10 (2021) (quoting Ariz. Dep’t of Econ. Sec.
v. Rocky J., 234 Ariz. 437, 440, ¶ 12 (App. 2014)).

¶14 In Timothy B., where a specified family member was willing
to serve as a permanent guardian, the Arizona Supreme Court said the
normal-home consideration in length-of-felony-sentence cases means the
court “should consider the availability of a permanent guardian to provide
a normal home life [during the incarceration period] if another parent is
unavailable.” Timothy B., 252 Ariz. at 477, ¶ 27. The Arizona Supreme Court
issued its Timothy B. opinion after the termination order here, which did not
address a permanent guardianship option for either the length-of-
incarceration ground or the 15-months’ time in care ground.

¶15 The plain language of the 15-month out-of-home placement
ground does not require a Timothy B. inquiry. This court first looks “to the
statute’s plain language as the best indicator of [legislative] intent[,]” and if
the language is clear and unambiguous, this court “must give effect to that
language without employing other rules of statutory construction.” Parsons
v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 323, ¶ 11 (App. 2017). The out-
of-home placement ground only requires: (1) the child was in court-ordered
placement for at least fifteen months; (2) DCS made a diligent effort to
provide appropriate reunification services; (3) father was unable to remedy
the circumstance causing the child to be in court-ordered out-of-home care;
and (4) a substantial likelihood father would not be capable of exercising
proper and effective parental care and control in the near future. Donald W.
v. Dep’t of Child Safety, 247 Ariz. 9, 17, ¶ 25 (App. 2019) (citations omitted);
see also A.R.S. § 8-533.B.8(c). Those elements do not require the “normal
home” analysis applicable to the lengthy-of-felony-sentence ground.
Compare A.R.S. § 8-533.B.8(c) with A.R.S. § 8-533.B.4.

¶16 Because we affirm without regard to the length-of-
incarceration ground, we need not further address Timothy B.

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III. DCS Made Diligent Efforts to Provide Appropriate
Reunification Services.

¶17 Father argues the superior court erred in finding DCS made
diligent efforts to preserve the family relationship.

¶18 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982);
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11 (2000)). Still,
“parental rights are not absolute.” Kent K., 210 Ariz. at 284, ¶ 24. “To justify
termination of the parent-child relationship, the [superior] court must find,
by clear and convincing evidence, at least one of the statutory grounds set
out in [§] 8-533, and also that termination is in the” child’s best interests by
a preponderance of the evidence. Michael J., 196 Ariz. at 249, ¶ 12.

¶19 This court views the evidence together with any reasonable
inferences in the light most favorable to affirming the superior court’s
decision. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App.
2002). This court reviews the superior court’s termination decision 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). But this court reviews de novo “legal issues requiring the
interpretation and application of § 8-533.” Jessie D., 251 Ariz. at 580, ¶ 10
(quoting Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 12 (App.
2014)).

¶20 DCS must make diligent efforts to provide appropriate
reunification services before terminating parental rights for 15-months’
time in care. A.R.S. § 8-533.B.8(c). What constitutes a diligent effort requires
a case-by-case analysis. Donald W., 247 Ariz. at 23, ¶ 49. To establish diligent
efforts, DCS “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. (emphasis
in original).

¶21 In making diligent efforts, DCS also must provide a parent
“with the time and opportunity to participate in programs designed to help
[him] become an effective parent.” Christina G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 231, 235, ¶ 14 (App. 2011). DCS, however, need not “provide every
conceivable service or [] ensure that a parent participates in each service it

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offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App.
1994). For instance, DCS need not provide services if those services will
endanger the child or have no reasonable prospect of success. Jessie D., 251
Ariz. at 582, ¶ 21; Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192,
¶ 34 (App. 1999).

¶22 DCS argues father waived this issue by failing to raise it
before the superior court. This court has held a parent may waive an
element of DCS’s burden of proof—such as the diligent-efforts
requirement—if the parent fails to raise it adequately. Shawanee S., 234 Ariz.
at 177–79, ¶¶ 10–18. Even so, the Shawanee court identified how a parent
may adequately raise an issue before the superior court, including by
disputing diligence “at a termination hearing.” Id. at 178, ¶ 14. Here, father
brought out the lack of services during cross- and direct-examinations at
the termination hearings. Father’s closing arguments focused extensively
on the issue. Accordingly, father at least minimally raised the issue and did
not waive it.

¶23 In 2020, father initially was willing to participate in services.
The Nevada DFS scheduled eight virtual visits for father in Nevada, but he
attended only two. During an April 7, 2020 phone call with DCS, father
“refused to meet with DCS and refused to discuss any services.” The
superior court suspended father’s visits in July. The superior court
suspended father’s visits, in part, because father behaved inappropriately
during the two Nevada visits—including accusing the child of lying and
“grilling” the child about the placement family. The other reason was a DCS
psychologist concluded having the child visit with father could cause the
child “further disruption and emotional/psychological harm.” The
superior court has discretion to restrict visits if they would endanger the
child. Michael M. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 198, 201, ¶ 11 (App.
2002).

¶24 DCS did not fail to make reasonable or diligent efforts to
provide services to father after that. This case originated in Nevada in
March 2020. Father returned to Arizona toward the end of March 2020 and
was arrested and incarcerated on April 10, 2020. He was released on June
27, 2020, and arrested again two days later. For the exceedingly brief time
periods while father was out of custody in Arizona, DCS understandably
provided father no services. For the remaining time periods, while father
was incarcerated, DCS also provided no services.

¶25 Father’s opening brief faults DCS and the superior court for
not allowing visits while he was incarcerated. Father’s argument focuses on

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relevant courses he completed while incarcerated. But father points to no
time when the visits would not pose any risk to the child. See id. The
superior court recognized father’s participation in the programs but also
found father’s participation did not necessarily mean he had made the
“behavioral changes needed for reunification.” And as late as the
termination trial, the superior court found father lacked “insight into his
violent temper and the [e]ffects his behaviors have had on” the child.
Father’s participation in those programs, therefore, would not have
resulted in an earlier restoration of his visits.

¶26 Because the superior court did not err in terminating father’s
rights based on 15-months’ time in care, we need not address his challenges
regarding the length-of-incarceration ground. In addition, father has not
challenged the superior court’s best interests findings, which are fully
supported by the record.

CONCLUSION

¶27 We affirm.

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

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