In Re Term of Parental Rights as to M.S. and M.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0084
FILED 10-3-2023

Appeal from the Superior Court in Maricopa County
No. JD37235
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Clark Jones, Esq., Mesa
Counsel for Appellant

Rothstein Donatelli LLP, Tempe
By April Olson, Glennas’ba Augborne Arents, Jordan Hale
Counsel for Appellant Navajo Nation

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee, DCS

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

C A M P B E L L, Judge:

¶1 Marcine C. (Mother) and the Navajo Nation appeal the
superior court’s order terminating Mother’s parental rights to her Indian
children Megan (born in November 2018) and Michael (born in March
2020).1 Mother and the Navajo Nation assert that the Department of Child
Safety (DCS) failed to make active reunification efforts. We affirm because
DCS made sufficient efforts under both A.R.S. § 8-533(B)(8)(c) and 25 U.S.C.
§ 1912 of the Indian Child Welfare Act (ICWA).

BACKGROUND

¶2 Mother has a long history of alcohol abuse and mental-health
issues leading to four older children being removed from her care. In
November 2018, DCS received a report that Mother was consuming alcohol
while pregnant with Megan. By the time Megan was born, Mother had
completed an inpatient substance-abuse treatment program and was living
in a sober-living home. Because Megan was able to live with Mother in the
sober-living home, DCS left Megan in Mother’s care.

¶3 When Megan was a few months old, Mother left the sober-
living home against her program counselors’ advice. She stopped taking
her medication and began experiencing suicidal ideation. DCS filed a
dependency petition that included Megan, but left Megan in Mother’s care.
Mother and Megan returned to Father, but neither had stable housing and
the parents engaged in acts of domestic violence. In June 2019, Mother left
Megan with Megan’s paternal grandmother, who became the child’s official
placement. In March 2020, Mother gave birth to Michael, and DCS also
placed him with the paternal grandmother.

¶4 Over the next several years, DCS offered Mother multiple
services including substance-abuse testing and treatment, a psychological
evaluation, counseling, parent-aide services, supervised visits, in-home
support services, housing resources, and transportation. Following
Michael’s birth, she engaged in services and the court moved to return him
to her custody.2 Michael was returned to Mother but later removed due to
Mother’s relapse.

1 Pseudonyms are used to protect the children’s identities. The
children’s father is deceased.
2 Megan remained with the paternal grandmother at this time because
Mother’s housing program did not allow children over age one.

2
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

¶5 By July 2020, Mother had attained five months of sobriety and
had actively engaged in services. The only barrier to reunification was
housing, which was difficult to obtain because Mother had a felony
conviction.

¶6 In January 2021, Mother relapsed with alcohol, but within a
few weeks she reengaged in substance-abuse treatment. Nevertheless, her
drug testing was sporadic, and she tested positive for ETG, a byproduct of
alcohol, on at least two occasions when she did test. She also did not follow
through with a housing plan or complete the treatment program. Her visits
with the children were also inconsistent. Mother then stopped
communicating with DCS for several months.

¶7 In December 2021, Mother resumed services, but over the next
year her participation was intermittent. Although she had periods of
sobriety in the summer and fall of 2022, she relapsed in November, and
communication between Mother and DCS was sparse. By February 2023,
Mother had begun and left several substance-abuse treatment programs,
relapsing each time.

¶8 Due to Mother’s lack of engagement, DCS moved to terminate
her parental rights based on the substance-abuse and fifteen-months out-
of-home placement grounds. See A.R.S. § 8-533(B)(3), (8)(c). She did not
appear at trial, and the superior court found she lacked good cause for her
absence. The Navajo Nation’s expert testified that DCS had not made active
efforts to preserve the Indian family under ICWA. See 25 U.S.C. § 1912(d).
According to the expert, DCS had a high turnover of case managers, did not
maintain regular contact with Mother, was not proactive in locating Mother
when she was out of contact, and had not made sufficient efforts to help her
with housing, “which resulted in [her] not reunifying [with] her children
the first time.” Ultimately, the superior court found that DCS had made
active efforts to assist Mother and terminated her parental rights on the
grounds alleged. Mother and the Navajo Nation appealed.

DISCUSSION

¶9 A parent’s right to the companionship, care, custody,
management, and association of her children is a fundamental,
constitutionally protected right. Michael M. v. Ariz. Dep’t of Econ. Sec., 202
Ariz. 198, 200, ¶ 8 (App. 2002). These fundamental rights continue even if
the natural parent struggles to care for their child. Id.

¶10 Even so, a parent’s right to custody and control of her child is
not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49,

3
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

¶¶ 11-12 (2000). Severance 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. “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). The court must also find that
severance is in the child’s best interests by a preponderance of the evidence.
Id. at 285, ¶ 29. And when the child is an Indian child, 25 U.S.C. § 1912
requires the court to find by evidence beyond a reasonable doubt that the
parent’s continued custody of the child is likely to result in serious
emotional or physical damage to the child, and by clear and convincing
evidence that DCS made “active efforts” to preserve the Indian family.
Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 420, ¶¶ 20, 26 (App. 2011)
(quoting 25 U.S.C. § 1912(d)).

¶11 This Court will accept the juvenile court’s factual findings “if
reasonable evidence and inferences support them” and will affirm the
court’s legal conclusions unless they are clearly erroneous. Brionna v. Dep’t
of Child Safety, 533 P.3d 202, ¶¶ 30–31 (Ariz. 2023) (citation omitted). Mother
and the Navajo Nation’s appeals are limited to the superior court’s findings
that DCS made sufficient reunification efforts for purposes of A.R.S.
§ 8-533(B)(8)(c) and 25 U.S.C. § 1912.3

¶12 To begin, DCS argues that Mother and the Navajo Nation
waived their arguments by not raising them promptly in superior court. See
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178–79, ¶¶ 13–18 (App.
2014) (to avoid waiver, party must raise a timely objection if she believes
services are inadequate). Although the superior court held several hearings
where Mother or the Navajo Nation could have voiced their concerns, they
did not do so. After her first relapse, Mother told the DCS case manager she
relapsed “due to [her] feeling overwhelmed and defeated in not finding
housing.” She did not ask for any additional services, and at that time, DCS
was actively helping Mother seek appropriate housing. Similarly, the
Navajo Nation’s expert testified that she voiced her concerns about DCS’s
rotation of case managers and lack of contact with Mother in August 2022.
But she did not bring the issue to the attention of the court, nor did she
follow up with DCS. Ultimately, Mother and the Navajo Nation needed to
raise their concerns early enough to allow the court and DCS “a reasonable

3 We therefore consider any challenges to the balance of the court’s
findings waived. See Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577–78,
¶ 5 (App. 2017).

4
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

opportunity to . . . make appropriate changes.” Id. at 179, ¶ 18. In failing to
do so, they have waived this issue.

¶13 Waiver notwithstanding, Mother and the Navajo Nation have
not established that DCS failed to make active efforts to provide remedial
services and rehabilitative programs to try to keep the Indian family
together. First, severance for time-in-care grounds under A.R.S.
§ 8-533(B)(8)(c) requires, among other things, that DCS “made a diligent
effort to provide appropriate reunification efforts.” To satisfy its obligation
to make diligent efforts, DCS must provide the parent with an opportunity
to participate in programs designed to help her become an effective parent.
In re Appeal in Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994). Even so, it need not “provide every conceivable service,”
ensure the parent participates in services, provide duplicate services, or
undertake reunification efforts that are futile. Id.; In re Pima Cnty. Severance
Action No. S-2397, 161 Ariz. 574, 577 (App. 1989); Mary Ellen C. v. Ariz. Dep’t
of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999). Nor is it required to
“[l]eav[e] the window of opportunity for remediation open indefinitely.” In
re Appeal in Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App.
1994).

¶14 Second, severance under 25 U.S.C. § 1912 requires that DCS
made “active efforts . . . to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.” DCS
satisfies this obligation when it makes “affirmative, active, thorough, and
timely efforts intended primarily to maintain or reunite an Indian child
with his or her family” and “assist[s] the parent . . . through the steps of a
case plan and with accessing or developing the resources necessary to
satisfy the case plan.” 25 C.F.R. § 23.2. But as with reunification services,
“active efforts” in this regard do not require DCS to “provide every
imaginable service or program designed to prevent the breakup of the
Indian family.” Yvonne L., 227 Ariz. at 423, ¶ 34.

¶15 The Navajo Nation argues that DCS did not “actively assist
Mother with housing which led to her relapse” and that there is “no specific
evidence in the record for the juvenile court to have relied on to determine
the adequacy of the housing assistance.” We disagree. The record contains
specific evidence of DCS’s active efforts to help Mother find housing. Over
the course of the dependency, Mother was given at least three housing
subsidies and a dedicated Section 8 subsidized housing caseworker to help
her locate and obtain accommodations. By November 2020, Mother had
located a potential home using a housing voucher, and DCS reported it was
ready to provide Mother with a housing subsidy. The vendor, however,

5
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

stopped communicating with Mother and DCS. By May 2021, Mother had
developed another housing plan, but she did not follow through and left
her sober-living facility prematurely. After leaving that facility, Mother did
not consistently address her substance-abuse or mental-health issues, or
continue to pursue adequate housing.

¶16 Mother argues that DCS “fail[ed] to communicate frequently
enough” with her, “chang[ed] case managers so frequently that it precluded
the necessary rapport,” and left her to seek out her own providers for
services. The Navajo Nation also asserts that DCS did not provide sufficient
“face-to-face” contact, and that it did not “actively assist Mother to get back
on track with her case plan after her relapse.” The record belies these
arguments.

¶17 DCS offered Mother several different lines of communication
through case-management services, psychological evaluations and
counseling, and child support services—all designed to keep her engaged
in substance-abuse treatment and child visitation. Moreover, the record
shows that DCS was actively communicating with Mother when she
provided contact information.

¶18 DCS maintained regular contact with Mother until January
2021, when she disappeared for two weeks. In February, DCS regained
contact with Mother, learning she had relapsed. Although offered
substance-abuse treatment after her relapse, Mother did not engage. In May
2021, Mother provided DCS with updated contact information, and DCS
reported it was “currently working with [M]other to reengage her” in
services. By June, Mother had not re-engaged in services or communicated
with DCS. Mother re-engaged in December 2021, and the case manager
ensured she had substance-abuse testing, psychological evaluations, and
visits with her children available to her. Through July 2022, and despite
Mother’s inconsistent engagement, DCS attempted to stay in contact with
Mother and to provide her opportunities to participate in services.

¶19 Although the Navajo Nation advocates for a more
personalized approach, including “face-to-face” contact, that is not the
benchmark for determining whether the services provided by DCS were
sufficient. Here, the record shows that DCS continued to provide Mother
services following her multiple relapses, unsuccessful treatment attempts,
and disappearances over the course of the dependency proceedings. DCS
presented evidence of its many attempts to engage with Mother over
several communication platforms, including telephone and email. Mother’s
case manager testified she attempted contact with Mother “as much as [she]

6
 IN RE TERM OF PARENTAL RIGHTS AS TO M.S. AND M.S.
Decision of the Court

could during the week.” At least one provider tried to maintain contact
with Mother each week while in their program.

¶20 Finally, Mother argues DCS “left [her] to seek out her own
providers for services.” While DCS allowed Mother to seek out treatment
options she preferred, DCS also referred Mother to substance-abuse
treatment through its provider. This dual referral was to ensure Mother had
access to services if she could not obtain them on her own. We therefore
find no error. See Pima Cnty Severance action No. S-2937., 161 Ariz. at 577.

¶21 Sufficient evidence supports the superior court’s finding that
“[a]lthough more could have been done to assist” Mother, DCS “made
diligent and active efforts to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.” See
Brionna, 533 P.3d at ¶¶ 30–31. We therefore uphold the severance. See id.
¶ 31.

CONCLUSION

¶22 We affirm for the reasons set forth above.

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

7