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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 22-0266
FILED 5-9-2023

Appeal from the Superior Court in Maricopa County
No. JD39713
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Bailey Leo
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

K I L E Y, Judge:

¶1 Julian M. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his five-year-old child, “A.M.” For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2020, the Department of Child Safety (“DCS”)
received reports that A.M.’s mother Adreem B. (“Mother”) was abusing
methamphetamine and fentanyl and that Mother’s significant other had
committed acts of domestic violence against Mother and her children.
Father had not protected A.M. from Mother’s drug use or the violence in
her home, and his whereabouts were unknown. DCS was also unable to
locate A.M. but nonetheless filed a dependency petition and obtained a
court order to take custody of him when he was located. Father failed to
appear at the dependency hearing, and the juvenile court adjudicated A.M.
dependent.

¶3 In January 2021, DCS found A.M. at his paternal
grandmother’s home. Over the paternal grandmother’s objection, and with
the assistance of the police, DCS took custody of A.M. DCS considered
placing A.M. with his paternal grandmother during the dependency
proceedings but decided against it when she refused to agree to a home
study because “she was residing with individuals outside the family that
she didn’t want involved.” Instead, DCS placed A.M. with his maternal
grandmother. Father appeared for the first time at a court hearing in
January 2021. Although Father provided his phone number during that
hearing, DCS was later unable to reach Father at that number. Nor did
Father contact DCS after the hearing.

¶4 Over the next four months, Father spoke with A.M. by phone
but spent no time with him in person.

¶5 Meanwhile, Father was charged with a variety of crimes. In
February 2021, Father was arrested for shoplifting. Two months later, he

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

was jailed after being charged with multiple theft and burglary-related
felonies that he allegedly committed on various dates from November 2020
to April 2021 during the pendency of the juvenile court proceedings. Father
remained in jail for the duration of the dependency proceedings. In May
2021, Father was charged with additional theft-related felonies that, again,
were allegedly committed on various dates during the pendency of the
juvenile court proceedings.

¶6 While Father was incarcerated, the case manager sent him
several letters with updates about the case. She also tried, without success,
to call Father at the jail. Because jail officials do not allow DCS service
providers inside the facilities to provide services to inmates, the case
manager could not offer Father any services beyond visitation.

¶7 DCS sought clearances that would allow contracted providers
to supervise in-person visits between Father and A.M. at the jail, but the
providers did not gain clearance until approximately October 2021. In the
interim, A.M.’s maternal grandmother provided Father weekly video and
phone call visits with A.M. Father also had additional virtual visits through
the paternal grandmother, who arranged phone calls between Father and
A.M.

¶8 In February 2022, DCS moved to terminate Father’s parental
rights to A.M. on nine months’ out-of-home placement grounds, A.R.S. § 8-
533(B)(8)(a), later amending its motion to allege fifteen months’ out-of-
placement grounds, see A.R.S. § 8-533(B)(8)(c). After a trial conducted over
two days in August 2022 and November 2022, the superior court
terminated Father’s rights on fifteen months’ out-of-placement grounds,
and he appealed. This Court has jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶9 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶¶ 11-12 (2000). Termination of a parental relationship may be
warranted where the state proves one statutory ground under A.R.S. § 8-
533 by “clear and convincing evidence.” Id. at 249, ¶ 12. “Clear and
convincing” means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005)
(citation omitted). The court must also find that termination is in the child’s
best interest by a preponderance of the evidence. Id. at 284, ¶ 22.

¶10 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and we will affirm

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Decision of the Court

a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This Court does not reweigh
the evidence and “look[s] only to determine if there is evidence to sustain
the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004).

¶11 Before seeking to terminate a parent’s rights based on the
child’s continuing out-of-home placement, DCS is required to make “a
diligent effort to provide appropriate reunification services” to the parent.
A.R.S. § 8-533(B)(8). To do so, DCS must provide the parent “with the time
and opportunity to participate in programs designed to help [him] become
an effective parent.” See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994). It must undertake rehabilitative measures that have
“a reasonable prospect of success.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192, ¶ 34 (App. 1999). DCS is not, however, required to ensure
that the parent participates in services, JS-501904, 180 Ariz. at 353, nor to
provide futile services, Mary Ellen C., 193 Ariz. at 192, ¶ 34.

¶12 Father challenges the juvenile court’s order terminating his
parental rights, asserting that DCS failed to “be diligent in offering
reunification services.” The State’s obligation to provide “appropriate
reunification services,” he maintains, does not exempt “jailed inmate
parent[s]” such as himself.

¶13 The record supports the court’s finding that DCS made
diligent efforts to provide services to Father during his incarceration. Due
to his incarceration, the case manager was unable to speak with him by
phone, but she sent him several letters to keep him updated about the case.
Further, Father was able to visit A.M. throughout the dependency
proceedings. Although DCS’s parenting time supervisors were unable to
gain access to provide supervised visits for Father until October 2021, DCS
arranged in the interim for the maternal grandmother, with whom A.M.
had been placed, to provide weekly video and phone calls between Father
and the child. Father also had additional video and phone call visits
arranged by A.M.’s paternal grandmother. Indeed, a status report from
June 2021 reflects that Father’s counsel told DCS that Father and A.M.
“were having constant communication.” Because DCS is not required to
duplicate services a parent receives from other sources, Father’s regular
contact with A.M., whether arranged by DCS or by relatives, refute any
suggestion that Father was denied an opportunity to participate in
visitation with A.M. during the dependency proceedings. See Kyle R. v.
Dep’t of Child Safety, 1 CA-JV 22-0048, 2022 WL 6612638, at *2, ¶ 15 (Ariz.

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App. Oct. 11, 2022) (mem. decision) (“[DCS] is not required . . . to duplicate
a service the parent receives elsewhere.”).

¶14 In his opening brief, Father does not specifically identify any
service other than visitation that he contends DCS should have provided
but did not. Accordingly, Father has waived any argument that DCS was
insufficiently diligent in providing other services. Christina G. v. Ariz. Dep’t
of Econ. Sec., 227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011) (explaining that failure
to develop argument results in waiver).

¶15 In any event, although DCS officials did not offer services to
Father other than visitation while he was incarcerated, there is no reason to
believe that Father would have engaged in additional services had they
been available. DCS was unable to contact Father between the January 2021
hearing and his April 2021 arrest; DCS officials tried without success to
reach him at the phone number he had provided, and he did not reach out
to DCS. Moreover, Father’s trial testimony makes clear that, even if DCS
had been able to contact him during that period, he would not have been
willing to participate in services. When asked if he could have engaged in
services prior to his incarceration in April 2021, Father testified, “For what?
I didn’t do nothing,” later reiterating, “Why would I engage into [sic]
something that I didn’t do?” In light of Father’s expressed unwillingness to
engage in services offered by DCS, DCS cannot be said to have failed in its
duty to make such services available. See Jessica P. v. Dep’t of Child Safety,
251 Ariz. 34, 39, ¶ 17 (App. 2021) (“[DCS] is obligated to undertake
measures with a reasonable probability of success” but “need not undertake
rehabilitative measures that are futile.”). We find no error.

¶16 Father next argues that the juvenile court erred in finding
termination was in A.M.’s best interests. This Court reviews constitutional
and statutory interpretation issues de novo. Brenda D. v. Dep’t of Child Safety,
243 Ariz. 437, 442, ¶ 15 (2018). In addition to finding at least one statutory
ground for termination, the juvenile court must also determine, by a
preponderance of the evidence, whether termination would be in the best
interests of the child. Kent K., 210 Ariz. at 284, ¶ 22. “[A] determination of
the child’s best interest must include a finding as to how the child would
benefit from a severance or be harmed by the continuation of the
relationship.” Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990)
(emphasis omitted). Courts “must consider the totality of the circumstances
existing at the time of the severance determination, including the child’s
adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 148, ¶ 1 (2018).

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Decision of the Court

¶17 The court may find that a child would benefit from
termination if there is an adoption plan or if the child is adoptable, see id. at
151, ¶ 14, or if the child “would benefit psychologically from the stability
an adoption would provide,” see JS-501904, 180 Ariz. at 352. Conversely, the
court may find that a child would be harmed by the continuation of the
parent-child relationship “where there is clear and convincing evidence of
parental unfitness which has not been remedied notwithstanding the
provision of services by [DCS] and which detrimentally affects the child’s
well-being.” Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App.
1989).

¶18 Here, the record reflects that A.M. was in a kinship placement
with his maternal grandmother who sought to adopt him. A.M.’s needs
were being met in his placement. Indeed, Father himself expressed no
concerns at trial about A.M.’s well-being in his grandmother’s care. On the
contrary, he expressly testified, “I don’t object to him being there” and “I’m
fine where he’s at,” tacitly acknowledging that A.M. was being well cared
for. This evidence supports the juvenile court’s determination that
“termination is in [A.M.’s] best interest” because A.M.’s maternal
grandmother “is willing to adopt [A.M.] and provide [him] with a safe and
stable home,” thereby providing him “with needed stability and
predictability.”

¶19 Contending that A.R.S. § 1-601 requires the juvenile court to
“consider guardianship as an option” when making a best interests
determination, Father asks this Court to “remand[] to the juvenile court for
the presentation of evidence about the guardianship option.”1 Because the
juvenile court here expressly considered whether a guardianship, rather
than termination, would better serve A.M.’s best interests, we need not
determine whether A.R.S. § 1-601 requires juvenile courts to consider
guardianship as an alternative in every termination case.

1 A.R.S. § 1-601 provides that “[t]he liberty of parents to direct the
upbringing, education, health care and mental health of their children is a
fundamental right,” and the State, its subdivisions, and government entities
“shall not infringe on these rights without demonstrating that the
compelling governmental interest as applied to the child involved is of the
highest order, is narrowly tailored and is not otherwise served by a less
restrictive means.”

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
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¶20 Here, the juvenile court considered, and rejected,
guardianship as an alternative to termination, determining that “adoption
is in the child’s best interest.” The court explained that

[A.M.] is young and is in a home that will proceed to
adoption. Father had minimal contact with [A.M.] prior to his
incarceration. Father has never provided for [his] basic needs.
Finally, no one has presented any evidence that there is an
individual who is able and would qualify to serve as a
permanent guardian.

Reasonable evidence supports these findings. As the record shows, Father
was absent from A.M.’s life for prolonged periods even before his current
incarceration, as illustrated by Father’s admission at trial that the paternal
grandmother “raise[d]” A.M. “for a whole year” after Father went to prison
for a prior offense in August 2018. In all, Father admitted at trial that he had
been incarcerated for about half of 5-year-old A.M.’s life. Moreover, the
maternal grandmother told DCS that she wished to adopt A.M. rather than
serve as his guardian.

¶21 In any event, Father did not request a case plan of
guardianship or move for a permanent guardianship. See A.R.S. § 8-872(A)
(“Any party to a dependency proceeding . . . may file a motion for
permanent guardianship.”) And he had a full and fair chance to litigate the
issue at the termination hearing. See Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11
(App. 2016) (“Due process entitles a party to notice and an opportunity to
be heard at a meaningful time and in a meaningful manner,” including the
“chance to offer evidence and confront adverse witnesses.”) (citation
omitted). Father is entitled to no relief on his claim that the juvenile court
should have established a guardianship instead of terminating his parental
rights.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

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

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