In Re Term of Parental Rights as to N.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE
TERMINATION OF PARENTAL RIGHTS AS TO N.R.

No. 1 CA-JV 22-0184
FILED 2-7-2023

Appeal from the Superior Court in Mohave County
No. S8015JD202100028
The Honorable Aaron Michael Demke, Judge, Pro Tempore

AFFIRMED

COUNSEL

Harris & Winger, P.C., Flagstaff
By Sarah Snelling
Counsel for Appellant Daniel R.

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 Daniel R. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his minor child (“N.R.”).1 Father
challenges the juvenile court’s finding that he substantially neglected or
willfully refused to remedy the circumstances that caused N.R. to be in an
out-of-home placement for six months or longer due to Father’s failure to
participate in reunification services offered by the Department of Child
Safety (“DCS”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 N.R. was born to Father and Mother in March 2021. After N.R.
was born, DCS became “[c]oncern[ed] that [Mother] was not able to
effectively parent” due to mental deficiencies and that Father “was not
providing care.” DCS determined Mother “was functioning at . . . [a] 9- to
10-year-old level” and “was unable to understand or respond to [N.R.’s]
cues,” creating concerns that “a child in Mother’s care would be at risk of
abuse or neglect.” As a result, DCS implemented an in-home safety plan to
provide Mother and Father with in-home services and protect N.R.

¶3 The DCS safety plan was intended to ensure that N.R. would
never be left with Mother unattended. Under the safety plan, Father was
required to supervise Mother when she was with N.R. and DCS offered
daycare services during the time Father spent at work. The safety plan was
only in place until June 2021 before DCS issued a report revealing Mother
and Father were not in compliance. Instead of utilizing daycare as the safety
plan contemplated, Father went to work and left N.R. unattended with
Mother. In Father’s absence, Mother had taken N.R. to a doctor’s
appointment and left him there for “close to an hour” while she went to
retrieve a cell phone charger. As an apparent substitute for daycare or his
supervision, Father had been using cameras installed in his home to watch

1 The parental rights of Jessica R. (“Mother”) were also terminated, but
she is not a party to this appeal.

2
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

Mother while he was at work and she was at home with N.R. However,
Father’s work was too distant from the home for this monitoring method to
satisfy the supervision requirement of the safety plan effectively. Because
Father failed to comply with the first safety plan, DCS did not believe
implementing another safety plan would protect N.R. Instead, DCS
removed N.R. from Mother and Father’s care pursuant to a June 2021 court
order.

¶4 DCS offered both Mother and Father services following N.R.’s
removal. It recommended that Father complete a psychological consult and
evaluation, Nurturing Parenting Program services, and asked Father to
complete domestic violence education, anger management, individual
counseling, and participate in supervised visits with N.R. Of the
reunification services offered, Father completed only the psychological
evaluation and an anger management program.

¶5 Father gave conflicting testimony throughout N.R.’s
dependency and at trial regarding Mother’s ability to safely parent N.R. on
her own. For example, Father “recognize[d] that Mother needs
supervision” if he is going to continue his relationship with her. However,
at trial, it was noted that Father stated Mother was “a good mom.” And
although Father testified at trial that he would “ensure that if [Mother]
visits, [N.R.] would be supervised,” if N.R. was returned to in-home care,
he subsequently stated that he believed Mother could parent N.R. on her
own. Father also suggested during cross-examination that he did not
believe DCS’s safety plan requiring Mother’s supervision was necessary:

Q: And as you’ve just stated, you believe that [Mother] can
care for the child. So you didn’t think that safety plan was
necessary. Is that a fair statement?

A: I guess you could say that.

¶6 Following trial, the juvenile court terminated Father’s
parental rights on the six months’ time-in-care grounds, finding DCS had
“made a diligent effort to provide appropriate reunification services.” The
court further found that Father’s participation in services was minimal, he
did not understand the need for either services or the dependency itself, he
had not made the necessary behavioral changes, and N.R. would not be safe
if returned to his care.

¶7 Although Father had completed anger management, the
court ultimately found by clear and convincing evidence that Father
“substantially neglect[ed] or willfully refuse[d] to remedy the

3
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

circumstances that caused [N.R.] to be in an out-of-home placement by
refusing to participate in reunification services.” The court highlighted
Father’s failure to complete domestic violence counseling despite concerns
regarding ongoing domestic violence between Father and Mother
(ultimately resulting in a conviction during N.R.’s dependency). Crucially,
the court found Father’s denial of Mother’s inability to safely parent N.R.
presented a risk to N.R.’s health and safety. The court therefore concluded
DCS had proven the grounds for termination by clear and convincing
evidence. Finally, the court concluded DCS had proven by a preponderance
of the evidence that termination would be in N.R.’s best interests and that
he is adoptable despite his “various health concerns and developmental
needs.” 2 Father’s parental rights were terminated pursuant to Arizona
Revised Statutes (“A.R.S.”) § 8-533(B)(8)(b).

¶8 Father timely appealed, and we have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-
120.21(A), and 12-2101(A).

DISCUSSION

¶9 On appeal, we review the juvenile court’s determination for
abuse of discretion, Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47
¶ 8 (App. 2004) (citation omitted) and will affirm unless its findings were
“clearly erroneous,” meaning there was “no reasonable evidence to support
them.” Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012) (citations
omitted). We view the facts in the light most favorable to upholding the
juvenile court’s ruling. Xavier R., 230 Ariz. at 99 ¶ 9 (citing In re Maricopa
Cnty. Juv. Action No. JS–8490, 179 Ariz. 102, 106 (1994)). We do not reweigh
the evidence on appeal. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151 ¶
18 (2018). Only the juvenile court may resolve conflicts in the evidence, even
when the facts are “sharply disputed.” Id. “[W]e must accept the juvenile
court’s findings if supported by reasonable evidence and inferences.”
Brionna J. v. Dep’t of Child Safety, 253 Ariz. 271, 276 ¶ 24 (App. 2022).

¶10 To terminate a person’s parental rights, the party seeking
termination must establish one of A.R.S. § 8-533’s statutory grounds by
clear and convincing evidence and that termination would be in the child’s
best interests by a preponderance of the evidence. Kent K. v. Bobby M., 210
Ariz. 279, 284 ¶ 22 (2005). The grounds for termination listed in A.R.S. § 8-

2 N.R. has had some health concerns including a severe lip and tongue
tie, problems keeping food down, and certain developmental delays. These
issues have improved since being in the out-of-home placement.

4
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

533(B) “serve[] as a proxy for parental unfitness . . . that creates harm or risk
of harm to the child.” Brionna J., 253 Ariz. at 277 ¶ 26 (citations omitted); see
also Alma S., 245 Ariz. at 150 ¶ 10 (“Eight of the eleven statutory grounds in
[A.R.S.] § 8-533(B) are proxies for parental unfitness because they
demonstrate a parent’s inability to ‘properly parent his/her child.’”)
(Citation omitted). In determining whether termination is appropriate, the
court looks at the circumstances that caused the child to be in an out-of-
home placement—as they exist at the time of termination—and which
“prevent a parent from being able to appropriately provide for his or her
children.” Brionna J., 253 Ariz. at 277 ¶ 26.

¶11 The parent-child relationship may be terminated when the
child is under three years old and

has been in an out-of-home placement for a cumulative total
period of six months or longer pursuant to court order and
the parent has substantially neglected or wil[l]fully refused to
remedy the circumstances that cause the child to be in an out-
of-home placement, including refusal to participate in
reunification services offered by the department.

A.R.S. § 8-533(B)(8)(b). Although a parent is not required to have cured the
circumstances leading to the child’s out-of-home placement at the time of
severance to avoid termination, see Marina P. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 326, 329–30 ¶ 21 (App. 2007) (citation omitted), termination is also
“not limited to those who have completely neglected or willfully refused to
remedy such circumstances.” In re Maricopa Cnty. Juv. Action No. JS-501568,
177 Ariz. 571, 576 (App. 1994).

¶12 Here, Father argues the juvenile court abused its discretion by
terminating his parental rights because he “made appreciable, good faith
efforts to participate in services,” noting both that he completed some of
DCS’s recommended services and the juvenile court’s acknowledgment of
his efforts.

¶13 At trial, DCS argued Father “willfully refused or substantially
neglected to remedy the circumstances that caused [N.R.] to be in an out-
of-home placement.” DCS was particularly concerned with Father’s failure
to adequately oversee Mother, who could not safely parent N.R.
unsupervised. Father acknowledged at trial that he needed to supervise
Mother and “understood that she couldn’t [parent] on her own.” However,
contrary to Father’s acknowledgment that Mother required supervision to
safely parent N.R., the juvenile court found Father violated the safety plan

5
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

and evidence was presented that this posed a risk to N.R. The juvenile court
further found Father also failed to complete domestic violence counseling
(although he did attempt to enroll the week prior to trial), told a service
provider that he was “only taking [anger management classes] just to
appease the courts,” was unable to participate in the Nurturing Parenting
Program after making “inappropriate comments to providers,” and
participated minimally in supervised visitation with N.R. Taken together,
we conclude it was not an abuse of discretion for the juvenile court to find
that Father had failed to remedy the circumstances which caused N.R. to be
removed from his care.

¶14 Father relies heavily on Brionna J., in which we reversed a
juvenile court order terminating a mother’s parental rights, holding that
“even abundant evidence of bad parenting does not necessarily equate to
the parental unfitness necessary to justify permanent termination of the
parent-child relationship by the state.” Brionna J., 253 Ariz. at 273 ¶ 1. There,
Mother participated inconsistently in reunification services offered by DCS,
failing to engage in several services entirely, resisting treatment, and
behaving uncooperatively with service providers. Id. at 274 ¶¶ 6–10. On
appeal, we concluded that while there was reasonable evidence supporting
the juvenile court’s findings as to Mother’s resistance to services, there was
insufficient evidence that she was statutorily unfit to parent her child. Id. at
277 ¶ 28. “The evidence established that Mother was mentally ill, volatile,
and unkind, but it did not establish that she was unfit as a matter of law.”
Id. at 278 ¶ 29.

¶15 This case is materially distinguishable from Brionna J. Here,
the juvenile court terminated Father’s parental rights under A.R.S. § 8-
533(B)(8)(b), while N.R. was still only an infant. See A.R.S. § 8-533(B)(8)(b).
By contrast, in Brionna J. the juvenile court terminated Mother’s parental
rights under a different subsection of § 8-533, and the child was already a
teenager. See Brionna J., 253 Ariz. at 273 ¶¶ 1–2; A.R.S. § 8-533(B)(8)(c). These
subsections are governed by different standards and Brionna J. is therefore
non-controlling and unpersuasive here. Compare A.R.S. § 8-533(B)(8)(b)
(requiring a finding that the child is under three years of age, had been in
an out-of-home placement for six months or longer, and that “the parent
has substantially neglected or wil[l]fully refused to remedy the
circumstances” causing the child’s out-of-home placement), with § 8-
533(B)(8)(c) (requiring a finding that the child had been in an out-of-home
placement for fifteen months or longer and “the parent has been unable to
remedy the circumstances that cause[d] the child to be in an out-of-home
placement and there is a substantial likelihood that the parent will not be

6
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R.
Decision of the Court

capable of exercising proper and effective parental care and control in the
near future.”).

¶16 Because sufficient evidence supports the juvenile court’s
determination that Father has failed to remedy the circumstances which led
to N.R.’s out-of-home placement, we conclude that the court did not abuse
its discretion in terminating Father’s parental rights.

CONCLUSION

¶17 For the foregoing reasons, we affirm.

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

7