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

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0174
FILED 07-11-2024

Appeal from the Superior Court in Maricopa County
No. JD533308, JS21437
The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Zion K., Buckeye
Appellant

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Advisory Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Arizona Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO M.K. and M.K.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Zion K. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his children, “Mary” and “Mia.”1 For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Savannah B. (“Mother”) are the biological parents
of Mary and Mia, born in 2020 and 2021, respectively. Mother is also the
biological mother of “Michael,” born in 2014.2

¶3 In January 2020, DCS received a report that other tenants at
the parents’ apartment complex in Tempe had complained that Father and
Mother were “fighting” and “yelling” and that Father could be “heard
screaming and cussing at” five-year-old Michael. On one occasion in late
2019, Mother “was seen smacking [Michael] on the face.” In February 2020,
DCS received another report after a neighbor found Michael wandering
alone outdoors at the apartment complex late at night. Mother later told a
DCS representative that she and Father had asked a friend to babysit
Michael while they “went to a bar . . . and then to McDonalds for dinner,”
and that the friend unexpectedly left the apartment before they got home,
leaving Michael alone.

¶4 Shortly after Mary was born in March 2020, Father and
Mother were evicted from their home. They moved to Oregon for several
weeks. While there, police were called after a third party witnessed Father
“forceful[ly]” hit Michael with a belt.

¶5 After moving back to Arizona in April 2020, DCS received
reports that Father and Mother were subjecting Mary and Michael to
“yelling, arguing, and aggressive behaviors.” DCS also learned that Father
and Mother had previously been evicted and were now “homeless and

1 We use pseudonyms to protect the identities of the children.
2 Mother and Michael are not parties to this appeal.

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unemployed,” with “no way to provide for the basic needs of their
children.”

¶6 After determining that the parents’ neglectful and abusive
behavior put the children at risk, DCS removed Mary and Michael from the
parents’ care, placing them together in a temporary kinship placement.3
DCS then petitioned for dependency, alleging that the parents failed to
“provide proper and effective parental care and control.” DCS also alleged
that Father “hit [Michael] with a belt,” “has exhibited aggressive and
volatile behaviors,” and “presents as unstable.” In August 2020, the court
found Mary dependent as to both parents and Michael dependent as to
Mother.

¶7 DCS offered Father reunification services, including
psychological and mental health services and counseling, substance abuse
treatment and testing, parent aide services, and supervised visitation.
Father largely failed to engage in those services. He completed only one of
22 scheduled drug tests, and the results of that single test were positive for
methamphetamine. He failed to participate in the substance abuse
treatment and mental health services DCS offered, and though he initially
participated in parent aide services, those services were closed
unsuccessfully in October 2020 in part due to Father’s lack of engagement.

¶8 While providing reunification services, DCS officials noted
concerns on multiple occasions about Father “exerting power over”
Mother. During one joint meeting, the case worker recalled, Mother
repeatedly “start[ed] to say something” but “stopped talking” and
apologized when Father “looked at her.” Likewise, when the DCS aide
directed questions at Mother during parent aide sessions, Father would
interrupt and answer for her.

¶9 In November 2020, Father and Mother went camping with
another woman (whom Father referred to as a “sister wife”) and her eight-
month-old child. During this outing, Father discharged a BB gun in the
vicinity of the baby, striking her in the head and the arm. Father, Mother,
and the child’s mother waited several hours before seeking medical
attention for the child and then concocted a story to cover up how she had
sustained the injuries. An examination at the hospital revealed that the
child had “shrapnel in her front[al] lobe” and “a ‘pellet’ lodged in her right
arm.” The ensuing police investigation uncovered that Father, Mother, and
the child’s mother provided false information about the shooting because

3 Mary and Mia are now together in a different kinship placement.

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all three were “fighting DCS” for “custody for their other children and did
not want to lose [the injured child] or the baby that [Mother] [was] currently
pregnant with.” Father and Mother were then arrested. Father was jailed
and has been in custody ever since.

¶10 After obtaining a warrant, investigating detectives searched
electronic devices belonging to Father and Mother for messages they
exchanged about the shooting. Police found “several images of child
pornography” on Father’s iPad and in “a ‘hidden’ folder in his photos” on
his phone. The images, which were “screenshotted and saved” during a
FaceTime call between Father and another woman, show “a nude, pre-
pubescent female” of “approximately three years of age” posing in “several
positions” with “her genitals exposed.” Father later identified the woman
in the images as his “girlfriend” and the naked child as his daughter. Father
was subsequently charged with multiple counts of sexual exploitation of a
minor.

¶11 After Mother gave birth to Mia in April 2021, DCS petitioned
for dependency, alleging that Mia was dependent due to factors that
include her parents’ “ongoing history of domestic violence,” Mother’s
“failure to protect” her children “from [Father’s] physical abuse,” and
Father’s incarceration. The court found Mia dependent as to both parents.

¶12 In January 2022, the court changed the case plan as to Father
from family reunification to severance and adoption. DCS moved to
terminate Father’s parental rights to Mary in February 2022 and to Mia in
September 2022.

¶13 In July 2022, a jury convicted Father of two counts of
aggravated assault, class 3 felonies in violation of A.R.S. § 13-1204(A)(2),
and one count of child abuse in violation of A.R.S. § 13-3623(A)(1), based
on his actions during the November 2020 shooting incident. Then, in early
2023, a jury convicted Father of seven counts of sexual exploitation of a
minor under 15 years of age, class 2 felonies in violation of A.R.S.
§ 13-3553(A)(2), based on the sexually explicit images of the young child
found on his electronic devices. Father was sentenced to 24 years in prison
for the 2022 convictions and an additional 70 years in prison for the 2023
convictions, for a total prison term of 94 years. His projected release date is
in 2101.

¶14 The juvenile court held a two-day termination hearing in
August 2023. The DCS case manager testified about Father’s actions that led
to DCS’s involvement in this case and about the subsequent events that

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resulted in Father’s criminal convictions and imprisonment. She further
testified that, since his incarceration, DCS arranged for Father to have
virtual supervised visits with the children and provided him with written
parenting skills materials. The case manager went on to state that the
children have cried and “act[ed] out” before and during virtual visits with
Father and that their placement expressed concern that the visits were
negatively affecting the children.

¶15 The DCS case manager testified that, apart from attending
virtual visits with the children, Father had made no effort to maintain his
relationship with them by sending them letters, cards, or gifts.

¶16 When asked whether, in her opinion, Father would ever be
able to exercise effective parental care, the case manager answered in the
negative, noting that Father will “remain[] incarcerated until 2101.” She also
testified that Father’s convictions for child abuse, aggravated assault on a
child, and sexual exploitation of a minor show that he does not safely
interact with children.

¶17 The case manager also testified that the children were
together in a kinship placement who was meeting their needs and who was
willing to adopt them. Noting that the children were not currently
adoptable because family reunification remained the case plan as to
Mother, the case manager testified that termination of Father’s parental
rights would be in their best interests even if Mother’s rights were not
terminated. “It would not be in the best interest of the children to maintain
contact with [Father],” she explained, because “he will never be able to
safely parent [them].” Moreover, she added, “if [Father’s] rights were to
remain intact,” he may be able to continue to exert “control over [Mother]
in the future,” leaving the children at risk of Father’s continued abuse.

¶18 Father testified that he had a positive relationship with the
children before his incarceration, stating, “When I wasn’t working, I
would . . . take them fishing,” “go get ice cream,” watch TV with them, and
“play[] a lot.” Father denied the case manager’s testimony that he had not
sent mail to the children since his incarceration, insisting that he mailed the
letters directly to the placement’s home rather than providing the letters to
DCS to forward to the children. Father also stated that he has “not received
any service from DCS,” which, he complained, “is a violation of my rights
as a parent.” Father admitted, however, that he never objected to the
purported inadequacy of the services being offered at any point before he
was incarcerated in November 2020.

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¶19 Father testified that, while on camera during one virtual visit,
Mary “spread her legs and point[ed] at” her genitals. Recognizing that such
behavior is “not appropriate” for a child of “her age,” Father stated, he
concluded that the children must have been exposed to sexual acts by their
placement. As a result, he testified, he reported the children’s placement to
the police.

¶20 When asked about his convictions for sexual exploitation of a
minor, Father identified the woman shown in the images stored on his
phone and iPad as his “girlfriend.” When asked if the naked child in the
images is his biological child, he replied, “Yes.”

¶21 After the hearing, the juvenile court issued a detailed ruling
finding that DCS had established, by clear and convincing evidence, all of
the statutory grounds for termination it had alleged. The court further
found that Father abused and neglected “an 8-month-old baby” by shooting
her “with a BB gun” and then “delay[ing] seeking medical care for [her],”
and that his convictions for sexual exploitation of a minor show that he “is
or would be unfit to parent or assume any parental responsibility.”

¶22 The court determined that DCS had offered a variety of
services to Father before his incarceration and that he “engaged in almost”
none of them. The court found that, after being incarcerated, Father “failed
to send cards, gifts or letters” to the children and “made no real effort to
maintain” his relationship with them. The court expressly rejected, as
“completely lacking in credibility,” Father’s claim to have mailed letters to
the children at their foster home.

¶23 The court also determined that termination would be in the
children’s best interests, finding, inter alia, that they were “thriving” in an
“adoptive kinship placement together.” The court further found that
maintaining the “parent-child relationship would be detrimental” to the
children because “the conduct that resulted in [Father’s] very long-term
incarceration” shows that he is “a danger to children in general.” Father’s
conviction for possessing sexually explicit images of a child he identified as
his daughter, the court found, establishes “a grave danger that Father could
try and obtain similar photos of” Mary and Mia, who are, the court noted,
close in age “to the victim in the [sexual exploitation] case.” Moreover, the
court observed, “Father’s history of control and manipulation over Mother”
raises “serious concerns” whether Mother could “properly protect the
children if Father’s rights remain intact.” Maintaining Father’s rights to the
children, the court concluded, would leave them “in harm’s way.”

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¶24 The court concluded by ordering the termination of Father’s
parental rights to Mary and Mia on the grounds of abuse and neglect, see
A.R.S. § 8-533(B)(2), length and nature of incarceration for felony
conviction, see A.R.S. § 8-533(B)(4), and out-of-home placement, see A.R.S.
§ 8-533(B)(8)(c). Father now appeals. We have jurisdiction under A.R.S.
§§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶25 A parent’s right to custody and control of his or her child,
though fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 248, ¶¶ 11-12 (2000). The parental relationship may be
terminated if the juvenile court finds, by clear and convincing evidence, at
least one statutory ground for termination under A.R.S. § 8-533(B) and
further finds, by a preponderance of the evidence, that termination is in the
child’s best interest. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474,
¶ 13 (2022). Statutory grounds for termination include abuse, neglect,
length of incarceration for felony conviction, nature of felony offense, and
out-of-home placement. A.R.S. § 8-533(B)(2), (4), (8).

¶26 An order terminating parental rights will be affirmed absent
an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004). “Because the trial court is in the best position to weigh
the evidence, judge the credibility of the parties, observe the parties, and
make appropriate factual findings, this court will not reweigh the evidence
but will look only to determine if there is evidence to sustain the [juvenile]
court’s ruling.” Id. (cleaned up).

¶27 Father disputes many of the findings that the juvenile court
made in support of its determination that DCS had met its burden of
establishing statutory grounds for termination. He denies, for example, that
he ever abused or neglected the children, insisting, “I was . . . keeping my
kids safe.” “There was never violence in the home,” he states, and although
he admits striking Michael with a belt on one occasion, he insists that he
was justified in doing so to “train[] him” not to misbehave. “I have not
broken any laws,” he maintains, and “there is and was no danger” to the
children’s “safety nor mental health.”

¶28 As the juvenile court correctly found, however, Father has
been convicted of numerous felonies for victimizing young children. The
court further found that Father’s possession of sexually explicit images of a
young child that he identified as his daughter gives rise to “a grave danger
that Father could try and obtain similar photos of” Mary and Mia. The

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juvenile court acted within its discretion in finding grounds for termination
of Father’s rights to Mary and Mia based on Father’s conduct, of which he
stands convicted, in victimizing other children. See Sandra R. v. Dep’t of Child
Safety, 248 Ariz. 224, 226-27, 231, ¶¶ 8, 13, 31 (2020) (affirming termination,
under A.R.S. § 8-533(B)(2), of parents’ rights to three children based on
physical abuse of one of them, reasoning that the “statute’s plain language
does not require a showing that the parent neglected or abused each child in
the proceeding” and that injuries to one child established a “risk of abuse”
to the other two) (emphasis added); see also In re Juv. No. J-2255, 126 Ariz.
144, 146-47 (App. 1980) (finding that a parent’s “prior convictions for
molesting young girls provided a rational inference of his unfitness as a
parent” under A.R.S. § 8-533(4)).

¶29 Father disputes the factual and legal bases for his criminal
convictions, insisting, for example, that he “was nowhere near the gun[]”
when the eight-month-old child was shot in November 2020 and that the
sexual images later found on his devices were obtained through an
unlawful search warrant. But Father’s convictions in those cases have been
affirmed on appeal, see State v. Kauffman, 1 CA-CR 22-0362, 2023 WL
4879156 (Ariz. App. Aug. 1, 2023) (mem. decision); State v. Kauffman, 2
CA-CR 2023-0095, 2023 WL 8235002 (Ariz. App. Nov. 28, 2023) (mem.
decision), and he is not entitled to collaterally challenge his convictions in
this case, see Yavapai Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 500 (App.
1988) (noting that criminal conviction that “was finally adjudicated” is “not
subject to collateral attack” in termination case).4

¶30 Father argues that DCS did not provide appropriate
reunification services. According to Father, all DCS did was send him a
“work book to do” and “would not give other services to [him].”

¶31 As noted above, the juvenile court found that DCS had made
the required showing of statutory grounds for termination based on length-
of-incarceration and 15 months’ time-in-care. See A.R.S. § 8-533(B)(4), (8)(c).
A parent’s rights generally cannot be terminated on those grounds absent
a showing that DCS made diligent efforts to provide appropriate
reunification services. See Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 582,
¶ 21 (2021) (“If DCS seeks to terminate parental rights under [A.R.S.] § 8-
533(B)(4)’s provision addressing the parent’s length of felony sentence, and
an incarcerated parent requests reunification services, such as visitation,
and providing the services will not endanger the child, DCS must make

4 We take judicial notice of the decisions of this court affirming Father’s

criminal convictions. See State v. Rhome, 235 Ariz. 459, 461, ¶ 8 (App. 2014).

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reasonable efforts to provide these services.”); Donald W. v. Dep’t of Child
Safety, 247 Ariz. 9, 17, ¶ 26 (App. 2019) (noting that before parental rights
can be terminated under A.R.S. § 8-533(B)(8)(c), DCS must establish, inter
alia, that it “made a diligent effort to provide appropriate reunification
services”).

¶32 The court also found, however, that DCS had made the
required showing of statutory grounds for termination on abuse, neglect,
and nature-of-felony grounds. See A.R.S. § 8-533(B)(2), (4). Father cites no
authority, and we are aware of none, holding that a parent’s rights cannot
be terminated on those grounds unless DCS first provides reunification
services. See In re X.B. & D.B., 1 CA-JV 23-0226, 2024 WL 2032759, at *2, ¶ 12
(Ariz. App. May 7, 2024) (mem. decision) (noting that A.R.S. § 8-533(B)(2)
“contains no express language requiring [DCS] to make reasonable efforts
to provide reunification services before termination under the neglect or
abuse ground” and that no Arizona court has “required such services when
termination is sought under such ground”). Because the court terminated
Father’s rights on multiple grounds that do not require DCS to provide
reunification services, Father’s complaint that DCS did not provide such
services, even if true, would not entitle him to relief.

¶33 Further, “[r]eunification services are not required to be
provided if the court finds by clear and convincing evidence that” an
aggravating circumstance exists, such as if the parent “committed an act
that . . . caused a child to suffer serious physical injury.” A.R.S.
§ 8-846(D)(1)(d). Here, the juvenile court expressly found that an
aggravating circumstance exists, citing Father’s convictions for aggravated
assault and child abuse after he “shot an 8-month-old baby,” leaving her
“permanently disabled.” This finding, which is supported by evidence in
the record, establishes that DCS had no obligation to provide reunification
services. See id.

¶34 Even assuming that DCS was required to make diligent
efforts to provide reasonable reunification services to Father, the record
clearly establishes that DCS did so here. Prior to Father’s incarceration in
November 2020, DCS offered him substance abuse testing and treatment,
mental health services, parent aide services, and supervised visitation.
Father initially completed a hair follicle test, which was positive for
methamphetamine, but subsequently failed to submit to any further testing
or undergo any substance abuse treatment. DCS also scheduled Father for
a psychological evaluation and referred him for counseling, but he failed to
participate in either. As the juvenile court found, DCS “offered Father
services between April 2020 and November 2020, when he was arrested,”

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but Father “engaged in almost no services.” Further, a parent is entitled to
no relief based on the purported inadequacy of reunification services unless
the parent timely objected to those services and gave DCS an opportunity
to cure any deficiencies. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz.
174, 178, ¶ 13 (App. 2014). Father admitted in his testimony that he never
objected to the adequacy of services before his incarceration. Any
purported inadequacy in the services offered to Father before his
imprisonment, therefore, is not a basis for relief. See id.

¶35 Once he was incarcerated, DCS’s ability to offer him services
was limited. Nevertheless, DCS continued providing Father with weekly
virtual visitation and encouraged him to complete a parenting skills
curriculum. Additionally, DCS requested that Father engage in the variety
of programs offered to inmates by the Department of Corrections to address
such issues as domestic violence and mental health. Father admitted that
he did not participate in any of those services. The record supports the
juvenile court’s finding that DCS provided “an array of reunification
services” which, if “successfully completed,” would “likely” have resulted
in reunification had Father not “committed the crimes for which he is
currently incarcerated.” Therefore, the court did not abuse its discretion by
determining that DCS “made reasonable and diligent efforts to provide
reunification services.”

¶36 Father complains that “DCS would not allow [him] to . . . send
letters” to the children. Nothing in the record supports this assertion. On
the contrary, Father testified at trial that he did, in fact, send letters to the
children. Because Father never raised this argument at trial, we will not
consider it for the first time on appeal. See In re MH 2008-002659, 224 Ariz.
25, 27, ¶ 9 (App. 2010) (noting that appellate courts generally do not
consider arguments not raised at trial).

¶37 Father does not expressly challenge the juvenile court’s
determination that terminating his relationship with the children would be
in their best interests. In any event, the record supports the juvenile court’s
determination that the nature of the crimes of which Father has been
convicted establish that he “is unable to safely interact with children.”

¶38 Father appears to argue that his rights cannot legally be
terminated because Mother’s rights have not been. Because DCS initiated
these proceedings against “both Mom and Dad but only [severed] Father’s
rights,” he contends, “the case should [either] be dismiss[ed]” or
“reunification” should be the case plan for “both” parents. Father cites no
authority for this proposition. We reject, as both unsupported and illogical,

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Father’s contention that one parent’s rights to a child cannot be terminated
unless the other parent’s rights are terminated also.

¶39 Father makes a number of other assertions that are not
supported by the record. Father argues, for example, that he “has never
done drugs” even though he tested positive for methamphetamine a month
after the children were removed from his care. In any case, Father’s denial
of drug use, even if true, would provide no basis for challenging the
termination order. DCS did not allege substance abuse under A.R.S.
§ 8-533(B)(3) as a ground for termination, nor did the juvenile court base its
termination order on that statutory ground.

¶40 Father also argues that DCS never obtained “any court orders
to legally remove [his] kids from [his] home.” Because the temporary
custody orders are part of the court file, we reject as baseless Father’s claim
that the orders were never issued. Father’s other unsubstantiated
accusations include that the children’s maternal grandmother “is and was
paying off the judges and DCS workers,” that the children’s placement “is
doing sexual thing[s]” to them, and that the court terminated his parental
rights based on “prejudice” against him for “being Jewish.” No evidence in
the record supports any of these accusations, which we therefore disregard.
See Flood Control Dist. of Maricopa Cnty. v. Conlin, 148 Ariz. 66, 68 (App.
1985).

¶41 The undisputed evidence shows that Father will be
incarcerated for decades for (1) possessing sexually explicit images of a
young child he identified as his daughter and (2) shooting a baby and then
intentionally delaying seeking medical attention for her. The nature of these
offenses, and the length of his incarceration, support the juvenile court’s
determination that he will never be able to safely and appropriately act as
a parent to any child. Because the evidence is sufficient to support the
court’s finding that DCS had made the requisite showing of grounds for
termination and that termination would be in the children’s best interests,
we affirm the order terminating Father’s parental rights to Mary and Mia.

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CONCLUSION

¶42 We affirm.

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

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