In Re Term of Parental Rights as to J.C. and A.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 J.C. and A.B.

No. 1 CA-JV 22-0257
FILED 5-30-2023

Appeal from the Superior Court in Maricopa County
No. JD17268
The Honorable Michael J. Herrod, Judge

AFFIRMED IN PART: VACATED IN PART

COUNSEL

John L. Popilek, P.C., Scottsdale
Counsel for Appellant Mother Shanna B.

David W. Bell, Mesa
Counsel for Appellant Father Terry H.

Thomas A. Vierling, Phoenix
Counsel for Appellant Father Benjamin C.

Arizona Attorney General’s Office, Phoenix
By Emily Stokes
Co-Counsel for Appellee Department of Child Safety

The Huff Law Firm, Tucson
By Laura J. Huff, Daniel R. Huff
Co-Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO J.C. and A.B.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 Mother Shanna B. and Fathers Benjamin C. and Terry H.
appeal from an order terminating their parental rights to their respective
children. Because they have shown no reversible error, the order
terminating their parental rights is affirmed. The 15-months time-in-care
ground, however, was not properly joined for Benjamin C., and that portion
of the order is vacated.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Benjamin C. are the biological parents of J.C.,
born in 2007 and Mother and Terry H. are the biological parents of A.B.,
born in 2012. Mother also has an older child, who is now an adult. Since
2004, the Department of Child Safety (DCS) has received many reports of
Mother’s abuse toward her children that often resulted in visible injuries.
Along with alleging Mothers’ substantial marijuana use, the reports also
detail various events of neglect. As a result of these reports, several
dependency petitions have been filed against Mother.

¶3 J.C. lived with Benjamin C. for the first several years of his
life. Since 2012, however, Benjamin C. has been in prison for drug-related
felony convictions. While in prison, he lost visitation privileges because of
disciplinary infractions, and his prison time was extended after he pled
guilty to promoting prison contraband. He was released from prison in
September 2022, the month before the termination adjudication ended.
Terry H. has lived in Kansas City, Kansas, his entire life. Terry H. has had
occasional contact with A.B., largely over the phone, with a few in person
visits.

¶4 This most recent dependency began in October 2020, when
Mother called the police to allege that J.C. was hitting her. When the police
arrived, Mother grabbed J.C. to prevent him from getting water from a
refrigerator, requiring police to separate them. Mother admitted that, before
they arrived, she hit J.C. on the head and bit him, causing him to bleed.

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 IN RE TERM OF PARENTAL RIGHTS AS TO J.C. and A.B.
Decision of the Court

Mother was arrested, pled guilty to aggravated assault and was placed on
probation for three years. One of the conditions of probation was that
Mother have no direct or indirect contact with J.C., absent prior written
approval of the probation department.

¶5 Given Mother’s arrest, later in October 2020, DCS filed a
dependency petition alleging abuse and neglect by Mother and that
behavioral health issues prevented her from effectively parenting her
children. The petition alleged J.C. was dependent as to Benjamin C., given
he was in prison. The petition alleged A.B. was dependent as to Terry H.
based on neglect and failure to maintain a normal parental relationship.
Both children were placed with J.C.’s paternal aunt.

¶6 In January 2021, after Mother entered a no contest plea to the
allegations in the petition and both Fathers failed to appear, the children
were found dependent, and the court adopted a family reunification case
plan. At a September 2021 permanency planning hearing, the court granted
DCS’ oral motion to change the case plan to severance and adoption. As
amended, DCS’ motion to terminate alleged abuse, neglect and 15-months
time-in-care as to Mother. The motion also alleged abandonment for
Benjamin C. and abandonment and 15-months time-in-care for Terry H.

¶7 At a five-day severance adjudication, ending in October 2022,
Mother, Benjamin C., Terry H. and others testified and the court received
exhibits and heard argument. After taking the matter under advisement, in
a 31-page ruling, the court granted the motion to terminate parental rights.
The court found DCS had proven, by clear and convincing evidence, that
termination was appropriate as to Mother on the grounds of neglect or
failure to protect from neglect, willful abuse or failure to protect from
willful abuse and 15-months time-in-care. The court also found that DCS
had proven, by clear and convincing evidence, that termination was
appropriate for Benjamin C. and Terry H. based on abandonment and 15-
months time-in-care. The court also found that granting the motion was in
the best interests of the children.

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 IN RE TERM OF PARENTAL RIGHTS AS TO J.C. and A.B.
Decision of the Court

¶8 This court has jurisdiction over each parent’s timely appeal
under Article 6, Section 9, of the Arizona Constitution, Arizona Revised
Statutes (A.R.S.) §§ 8-235(A), 12-120.21(A) and 12-2101(A) (2023) and Ariz.
R.P. Juv. Ct. 601-03.1

DISCUSSION

¶9 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” this court will affirm
an order terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citations omitted). Each parent raises several challenges to the order
terminating their parental rights, which this court addresses in turn.

I. The Court Did Not Err in Terminating Mother’s Parental Rights to
A.B. and J.C. on Abuse and Neglect Grounds.

¶10 Mother argues DCS failed to prove that A.B. was at risk of
harm. The court may terminate the parent-child relationship if it finds clear
and convincing evidence that “the parent has neglected or wilfully abused
a child. This abuse includes serious physical or emotional injury or
situations in which the parent knew or reasonably should have known that
a person was abusing or neglecting a child.” A.R.S. § 8-533(B)(2).
Termination may extend to non-abused children when the court finds “the
risk of harm to non-abused children is proven by clear and convincing
evidence.” Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 230 ¶ 27 (2020).

¶11 Here, the termination order detailed the abuse that Mother
inflicted on J.C., both in the October 2020 incident and in previous incidents.
The order also noted that the older child, who is now an adult, was subject
to similar abuse. Mother does not challenge these findings but argues that
A.B. was not at risk of similar abuse. To support her argument, Mother
points to her testimony at trial that her relationship with A.B. is different.
Mother argues that, because she has raised A.B., they have a better

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 IN RE TERM OF PARENTAL RIGHTS AS TO J.C. and A.B.
Decision of the Court

relationship. Mother’s friend also testified that A.B. is easier to parent
because she generally does not get upset when disciplined and apologizes.
However, Mother’s evidence does not negate the court’s finding that
“Mother’s abusive behavior starts as each child gets older and reaches the
age when the child is not compliant.” Substantial evidence shows that
Mother was extremely abusive to J.C. and the older child as they grew
older, meaning the court could reasonably conclude that A.B. would be
subject to the same abuse over time.

¶12 The record also does not support Mother’s argument that A.B.
was not abused. Evidence shows that Mother had abused A.B. At trial,
Mother conceded that she bit A.B., leaving a bruise. Other evidence showed
that A.B. had gone to school a few times with a “busted lip” after Mother
had hit her in the face. Based on this evidence, Mother has not shown that
the court erred in finding that A.B. was at risk of harm and, as a result,
terminating Mother’s parental rights. See Sandra R., 248 Ariz. at 231 ¶ 33.

¶13 Mother next argues that DCS failed to provide mandated
services, including therapeutic counseling. When terminating a parent’s
rights on the 15-months time-in-care, the court must “consider the
availability of reunification services to the parent and the participation of
the parent in these services.” A.R.S. § 8-533(D). But DCS “is not required to
provide every conceivable service or to ensure that a parent participates in
each service it offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994). Nor is it required to “undertake rehabilitative
measures that are futile.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 192 ¶ 34 (App. 1999).

¶14 At the outset of the dependency, DCS recommended that
Mother participate in a psychological evaluation, parent aide, parenting
classes, and then when appropriate, family counseling. Mother participated
in the psychological evaluation, which noted that she was taking
medication and recommended weekly counseling, specific training on how
to intervene with J.C. and continuing psychiatric evaluations. Mother
continued taking medication and participating in counseling for a while,
but then declined to do so even though they were recommended. At trial,
Mother testified that she stopped taking medication and going to
counseling because she felt like she had nothing to work on.

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Decision of the Court

¶15 Mother could not have contact with J.C. based on the terms of
her probation. DCS offered Mother supervised visits with A.B., until A.B.
refused them. Mother also did not participate in recommended parenting
classes. And A.B.’s counselor did not believe that she was ready for family
counseling. Although Mother sought family counseling, she did not show
she was improving in her ability to parent. Given that Mother stopped
participating in services, the court did not err in determining DCS has met
its obligation to provide appropriate reunification services. See Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. at 353.

¶16 For these reasons, Mother has shown no error in the order
terminating her parental rights to both J.C. and A.B.

II. The Court Did Not Err in Terminating Terry H.’s Parental Rights
on Abandonment.

¶17 Abandonment is defined as a “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.” A.R.S. § 8-531(1). “[A]bandonment is
measured not by a parent’s subjective intent, but by the parent’s conduct:
the statute asks whether a parent has provided reasonable support,
maintained regular contact, made more than minimal efforts to support and
communicate with the child, and maintained a normal parental
relationship.” Michael J., 196 Ariz. at 249–50 ¶ 18.

¶18 Terry H. argues the evidence does not support abandonment.
He cites his testimony that he had regular contact with A.B. before DCS
filed the dependency petition. But Terry H. also testified that he did not
know about the dependency petition until six months to a year after it was
filed and could not explain how he could have had consistent contact with
A.B. during that time yet not know about the petition. Terry H. conceded
that he had never provided financial support for A.B. The placement
testified that, since October 2020, Terry H. called maybe ten times for three
to four minutes each and each call was awkward, suggesting A.B. did not
have a relationship with him before the dependency. The DCS case
manager also testified that Terry H. failed to show up to the one in-person
visit he scheduled with A.B. during the dependency. His alleged contact

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Decision of the Court

with A.B. years ago does not rebut the court’s finding that he failed to
maintain a normal parental relationship and support his child.2

¶19 Terry H. also challenges the court’s best interests findings
based on the argument that the court erroneously found the ground of
termination. As explained above, the court did not err in its abandonment
determination. Nor has Terry H. shown that termination would not be in
A.B.’s best interests. “[T]ermination is in the child’s best interests if either:
(1) the child will benefit from severance; or (2) the child will be harmed if
severance is denied.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13
(2018). As the court found, the placement meets A.B.’s needs in providing
stability and permanency and would allow her to stay with her sibling.
Although Terry H. argues that he has been able to parent other children, at
trial he was evasive about his current living situation. Therefore, Terry H.
has not shown that the court erred in finding that termination would be in
A.B.’s best interests.

III. The Court Did Not Err in Terminating Father Benjamin C.’s
Parental Rights to J.C.

¶20 Benjamin C. argues the court erred in finding he abandoned
J.C. As noted above, abandonment occurs when there is a “failure of a
parent to provide reasonable support and to maintain regular contact with
the child, including providing normal supervision.” A.R.S. § 8-531(1). While
abandonment should be looked at in the proper context, “incarceration
alone . . . does not justify a failure to make more than minimal efforts to
support and communicate with his child.” Michael J., 196 Ariz. at 250 ¶ 21.
If “circumstances prevent the . . . father from exercising traditional methods
of bonding with his child, he must act persistently to establish the
relationship however possible and must vigorously assert his legal rights
to the extent necessary.” Id. at 250 ¶ 22 (citation omitted).

2 Given this finding, this Court need not (and expressly does not) address
Terry H.’s arguments challenging the 15-months time-in-care ground. See
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002) (“If
clear and convincing evidence supports any one of the statutory grounds
on which the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.”).

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Decision of the Court

¶21 The court found that Benjamin C. had been in prison most of
J.C.’s life, and nearly all the time since J.C. was four years old. The court
also found that, instead of “doing everything that he could to get out” of
prison, Benjamin C. “committed acts that causes him to spend additional
time in prison.” He also took actions in prison that caused him to lose
visitation privileges. The placement testified that she received one email
directed to J.C. during the dependency and received no financial assistance.

¶22 Benjamin C. does not challenge these findings but argues that
DCS failed to set up visitation with J.C. The record does not support his
argument, however. As the court found, DCS tried to set up visitation but
could not because Benjamin C. had often lost his visitation privileges
because of his own infractions while in prison. Additionally, nothing
stopped Benjamin C. from sending J.C. cards, gifts or letters, or doing other
things to show that he was “act[ing] persistently to establish the
relationship however possible.” Michael J., 196 Ariz. at 250 ¶ 22. The court
thus did not err in terminating Father’s rights based on abandonment.3

¶23 Benjamin C. argues that the court erred in its best interests
finding because the court failed to require DCS to implement a permanent
guardianship before seeking termination. Although parents have a
“fundamental right” to “direct the upbringing, education, health care and
mental health of their children,” A.R.S. § 1-601, a dependent child has an
interest in stability and security that “must be the court’s primary concern,”
Alma S., 245 Ariz. at 150 ¶ 12. “The juvenile court must not subordinate the
interests of the child to those of the parent once a determination of unfitness
has been made.” Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 478 ¶ 32
(2022) (citation omitted).

¶24 When applicable, a permanent guardian may be an
appropriate (and preferred) alternative to termination of parental rights; a
permanent guardian is not, however, a prerequisite to termination,
particularly where no ready, willing and able potential guardian has been
identified. See Timothy B., 252 Ariz. at 477 ¶ 28; A.R.S. § 8-533. Benjamin C.
identifies no such potential guardian here, meaning the court did not err in
addressing such an alternative when granting severance.

3 Benjamin C. argues that the court erred in also finding termination was
proper on 15-months time-in-care. He is correct that DCS did not properly
allege this ground. Accordingly, although affirming on the statutory
ground of abandonment, this court vacates the 15-months time-in-care
finding.

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Decision of the Court

¶25 The placement has been able to provide safety and security
and is willing to adopt the children. J.C. shares this desire. Severance and
adoption will allow J.C. to continue in the placement’s stability and security
rather than the possibility of changing homes again under a permanent
guardianship. Thus, Benjamin C. has not shown that the court erred in
rejecting his request for a permanent guardianship. Nor has he shown that
the court erred in finding that termination was in J.C.’s best interests
because he “would be allowed to remain in the home [he has] been in, free
of abuse and neglect, and with permanency.” See Alma S., 245 Ariz. at 150 ¶
13 (“[T]ermination is in the child’s best interests if either: (1) the child will
benefit from severance; or (2) the child will be harmed if severance is
denied.”).

CONCLUSION

¶26 The 15-months time-in-care ground was not properly joined
for Benjamin C., and that portion of the order terminating parental rights is
vacated. In all other respects, the order terminating parental rights is
affirmed.

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

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