In Re Termination of Parental Rights as to A.A.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0011
FILED 07-30-2024

Appeal from the Superior Court in Maricopa County
No. JD22293
The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

Law Office of H. Clark Jones LLC, Mesa
By H. Clark Jones
Counsel for Appellant Mother

Maricopa County Public Advocate
By Suzanne W. Sanchez
Counsel for Appellant Father

The 928 Law Firm, Flagstaff
By Lindsey Lamey
Counsel for The Hope Tribe

Office of the Legal Advocate, Phoenix
By Amanda L. Adams
Counsel for Child
Arizona Attorney General’s Office, Tucson
By Thomas K. Sanders
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding
Judge Anni Hill Foster and Vice Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 Lorissa D. (“Mother”) and Rudy C. (“Father”) (collectively,
“Parents”) appeal the juvenile court’s order terminating their parental
rights to their child, A.A. Parents are members of the Hopi Tribe and A.A.
is an Indian child subject to the federal Indian Child Welfare Act (“ICWA”).
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2022, A.A. was born substance exposed and
Mother tested positive for methamphetamines. The Department of Child
Safety (“DCS”) petitioned for dependency shortly after A.A.’s birth based
on Mother’s and Father’s substance abuse. Mother gave DCS different
accounts of her substance use, explaining she used methamphetamines two
to three times per week but only once during her pregnancy. She also
admitted she only sought substance abuse treatment through past
involvement with DCS. Father knew about Mother’s history of drug use.

¶3 DCS had been involved with Mother and Father regarding
their other children. At the time of the dependency petition, Parents did not
have stable housing and were periodically homeless.

¶4 In November 2022, Parents attended a preliminary protective
hearing where they confirmed they understood failing to attend “every
hearing the court sets” could result in losing their rights and failing to
attend termination hearings could result in waiver, in absentia hearings,
and loss of parental rights. See Ariz. R.P. Juv. Ct. Form 1. Parents did not
appear at the December 2022 pretrial conference and appeared late at the
January 2023 dependency hearing. Parents did not appear at any remaining
hearings, which included three report-and-review hearings, the initial

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termination hearing, and its continuation. Their attorneys, however,
attended all hearings.

¶5 During the dependency, DCS “offered, made referrals for,
provided, and/or requested” allowances and subsidies, case management
services, childcare, medical and dental services, a nurturing parenting
program and parenting services, substance abuse assessment and
treatment, transportation services, and parenting time. Parents each
completed less than ten drug tests, all of which were positive for either
methamphetamines, amphetamines, or THC. At the time DCS petitioned
for termination, Parents had been evicted from a second sober living home
due to drug use. Parents also did not engage in parenting services, all of
which had been referred more than once and which had closed out for
nonparticipation. Parents’ last visit with A.A. was in April 2023, and their
referrals for visitation were offered twice and closed out for lack of contact.

¶6 In September 2023, DCS petitioned for termination of Parents’
parental rights as to A.A. on three grounds, including the substance abuse
ground under Arizona Revised Statute (“A.R.S.”) § 8-533(B)(3). Parents
received notice of the initial termination hearing, scheduled for October 26,
2023. The notice warned them nonappearance “may result in a finding that
you have waived your legal rights and . . . admitted the allegations in the
Motion” and failure to appear without good cause may result in the hearing
proceeding in their absence and resulting in termination of their parental
rights. But they failed to appear at the hearing without good cause.

¶7 During the hearing, an ICWA expert testified Parents did not
participate in home visits or parenting services and substance abuse
treatment was unsuccessful. The expert also confirmed DCS “made active
efforts to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family” and “continued custody of the
child by the parents [is] likely to result in serious emotional or physical
damage.” Following the testimony, Parents’ attorneys declined to ask any
further questions or present any other evidence or testimony. After the
court began issuing its findings, DCS requested reopening evidence to
present testimony from the DCS case manager. Because the court was “out
of time” it continued the hearing to occur on November 30, the next
scheduled report-and-review hearing.

¶8 Parents did not appear at the November 30 hearing and the
court found no good cause for their absence. The DCS case manager
testified Mother has a history of, and continues to struggle with, substance
abuse and had not completed substance abuse treatment. Mother’s last

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drug test was in June 2023. Though Father completed the intake with the
substance abuse treatment program, he continued to test positive for
methamphetamines and THC. The case manager also confirmed substance
abuse impacted has previously impacted Father’s ability to parent another
child.

¶9 Though Father’s attorney was present for the entire hearing,
Mother’s attorney joined nine minutes after the hearing began. After the
DCS case manager testified, the court asked Mother’s attorney to announce
herself and ask any questions. Mother’s attorney replied: “No further
questions. I did get to hear the substantive portion of [the DCS case
manager’s] testimony.” Father’s attorney also declined to ask any
questions, present any evidence, or contradict any testimony. Father’s
attorney added that because he had no contact with Father for “a few
months,” he had nothing to add.

¶10 The court found DCS proved all three severance grounds by
clear and convincing evidence, and, by a preponderance of evidence,
termination was in A.A.’s best interests. The court further found “evidence
established beyond a reasonable doubt, including expert testimony of [an
ICWA expert] that the continued custody of the child by Mother and Father
is likely to result in serious emotional or physical damage to the child.”
Additionally, the court found evidence also supported finding DCS made
“active efforts . . . to provide remedial services and rehabilitative programs
designed to prevent the break-up of the Indian family and these efforts have
proved unsuccessful.” Ultimately, the court terminated the parent-child
relationship between A.A. and Parents on the three grounds alleged by
DCS.

¶11 We have jurisdiction over Parents’ timely appeals under
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235 and 12-
120.21(A), -2101(A)(1).

DISCUSSION

I. The Juvenile Court Did Not Violate Parents’ Due Process Rights.

¶12 Generally, we review constitutional due process issues de
novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442 ¶ 15 (2018).
However, when a party waives a due process issue by failing to raise it to
the juvenile court, we review the issue for fundamental error. See id. at 447
¶ 37. To prove fundamental error, a party must show the error: (1) exists;
(2) is fundamental; and (3) caused prejudice. Id. at 447–48 ¶ 38. To prove
prejudice, the parent must affirmatively show, but for the error, a

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reasonable factfinder could have reached a different outcome. Id. at 448
¶ 38.

¶13 Parents have a due process right to notice of the initial
termination hearing. See Ariz. R.P. Juv. Ct. 351(c), 352(f)(1)(A). Notice “need
not be served personally on the parent or by publication, . . . but may be
served on the parent’s attorney.” Mara M. v. Ariz. Dep’t of Econ. Sec., 201
Ariz. 503, 507 ¶ 22 (App. 2002). The notice must warn the parent

that failure to appear at the initial hearing . . . without good
cause may result in a finding that the party has waived legal
rights and will be deemed to have admitted the allegations in
the petition or motion for termination of parental rights, and
that the hearing may go forward in the absence of the parent
and may result in the termination of parental rights based
upon the record and evidence presented.

Ariz. R.P. Juv. Ct. 351(c)(2). Unless a parent appears before the end of the
hearing, “the waiver of the parent’s legal rights is effective throughout the
hearing” to the “close of evidence, when the matter is submitted for the
court’s decision.” Brenda D., 243 Ariz. at 444 ¶ 24. At that point, “the parent
will be deemed to have admitted the factual allegations in the motion.” Id.

¶14 Parents do not dispute they had notice and appropriate
warning of the October 26 initial termination hearing. Instead, they argue
they did not get notice of the November 30 continuation and “no legal
authority” allows courts to proceed in absentia for a report-and-review
hearing or “carry[] forward” or “preserve” a parent’s nonappearance.

¶15 Due process, however, did not require individual notice to
Parents of the termination hearing’s continuance. The court had authority
to proceed in Parents’ absence because they: (1) failed to appear without
good cause; (2) had notice of the initial termination hearing; and (3) were
warned their failure to appear could result in waiver of their rights,
including the termination of their parental rights. See Ariz. R.P. Juv. Ct.
352(f)(1). And though nothing in the rules requires additional notice of a
continuation, Parents and their attorneys had notice of the November 30
report-and-review hearing. Moreover, their attorneys knew the court
intended to take evidence at the November 30 hearing.

¶16 Father also claims he arrived 15 minutes “after the hearing
concluded.” Nothing in the record shows his late arrival. But, even if true,
the fact is irrelevant because a parent must arrive before the conclusion of the
hearing to preserve any rights. See Brenda D., 243 Ariz. at 444, 448 ¶¶ 24, 41–

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42. Therefore, the court did not err by conducting the termination hearing
in absentia or by continuing it across two days.

¶17 Regardless of a parent’s attendance, counsel “has a right to
fully participate in the hearing on the parent’s behalf, including a right to
cross-examine the state’s witnesses, object to proffered evidence, and
present witnesses or other evidence.” Brenda D., 243 Ariz. at 428 ¶ 30.
Conducting a termination hearing without a parent’s counsel violates due
process. See id. at 447 ¶ 36.

¶18 Citing Manuel M. v. Ariz. Dep’t of Econ. Sec., Father contends
counsel may contest factual allegations only if parents are present. 218 Ariz.
205, 213–14 ¶ 28 (App. 2008). But nothing in Manuel M. or any other case
establishes such a rule. Rather, regardless of a parent’s appearance, counsel
may contest factual allegations. See Brenda D., 243 Ariz. at 428 ¶ 30.

¶19 Mother argues the court violated her due process rights
because, on November 30, it conducted some initial proceedings and
testimony without her counsel. But Mother’s counsel did not object, saying
she had “[n]o further questions” and had “hear[d] the substantive portion
of [the DCS case manager’s] testimony.” Thus, Mother has not shown any
prejudice, and consequently has not shown fundamental error. See id. at
447–48 ¶ 38. On this record, Parents have not shown the court violated their
due process rights.

II. Sufficient Evidence Supports the Termination Order.

¶20 DCS argues Parents waived their objection to the court’s
factual findings by raising the issue for the first time on appeal. “Generally,
failure to raise an argument in the juvenile court waives the issue on
appeal.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 536 ¶ 9 (App. 2018).
This includes “when a party first raises the issue of insufficient findings on
appeal and the order includes at least some statutorily required factual
findings.” Id. at 536 ¶ 10. “[T]he decision to find waiver is discretionary.”
Id. at 536 ¶ 9.

¶21 Here, the order contains supportive factual findings. See, e.g.,
Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 371 ¶¶ 5–6 (App. 2009)
(finding waiver where party challenged specificity of factual findings for
the first time on appeal, and the order contained some factual findings). But
Parents’ apparent waiver does not relieve the court of its duty to determine
whether DCS met its burden and to submit the ultimate facts it relied on for
its legal conclusions in writing. See Logan B., 244 Ariz. at 539 ¶ 20. And when
reviewing an order for termination of parental rights, we must “evaluate all

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the statutory elements found by the juvenile court.” Brionna J. v. Dep’t of
Child Safety, 255 Ariz. 471, 478 ¶ 26 (2023). Thus, we review the merits of
this issue.

¶22 In reviewing the termination of parental rights, we accept the
court’s factual findings “if reasonable evidence and inferences support
them.” Id. at 478 ¶ 30 (citation omitted). “[W]e affirm the trial court’s order
if the facts at trial support the trial court’s findings whether or not each
supportive fact is specifically called out by the trial court in its findings.”
Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–52 ¶ 19 (App. 2007).
We will affirm the court’s legal conclusions if supported by the appropriate
quantum of evidence and if not “clearly erroneous.” Brionna J., 255 Ariz. at
478–79 ¶ 31. “[T]he question of whether the statutory factor is supported by
the mandated quantum of evidence will not be disturbed unless [we]
determine[] ‘as a matter of law that no one could reasonably find the
evidence to be [that applicable quantum].’” Id. at 479 ¶ 31 (quoting Murillo
v. Hernandez, 79 Ariz. 1, 9 (1955)).

¶23 Orders “terminating the parent-child relationship . . . shall be
in writing and shall recite the findings on which the order is based.” A.R.S.
§ 8-538(A); see also Ariz. R.P. Juv. Ct. 353(h) (“At the conclusion of the
[termination] hearing, the court must . . . enter findings on whether the
petitioner or moving party has met its burden of proof and, if so, . . . make
specific findings of fact in support of the termination of parental rights.”).

¶24 To terminate parental rights, the court must conclude the
petitioner has proved: (1) “by clear and convincing evidence that at least
one of the statutory grounds for termination is met”; and (2) “by a
preponderance of the evidence that severance of parental rights would be
in the best interest of the child.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230
Ariz. 236, 240 ¶ 22 (App. 2012).1

¶25 ICWA requires two additional findings. First, the court must
find “beyond a reasonable doubt, with evidence that must include
testimony from a qualified expert witness, that continued custody of an
Indian child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” Ariz. R.P. Juv. Ct. 353(d)(1); 25
U.S.C. § 1912(e). Expert testimony must support, but need not be the sole
basis for, the court’s conclusion. Brenda O. v. Ariz. Dep’t of Econ. Sec., 226

1 Ruben M. refers to Arizona Rule of Procedure for the Juvenile Court
(“Rule”) 66, which was replaced by Rule 353 in 2021 and became effective
in 2022. The rule changes were not substantive.

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Ariz. 137, 142 ¶ 23 (App. 2010). Second, the court must find “by clear and
convincing evidence that active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the breakup of an
Indian family and that those efforts have proven unsuccessful.” Ariz. R.P.
Juv. Ct. 353(d)(2); 25 U.S.C. § 1912(d).

¶26 Parents assert insufficient evidence supported the court’s
future-harm determination because the ICWA expert’s testimony was
conclusory, and the court made no other supporting factual findings. True,
the ICWA coordinator did state that “continued custody of the child by the
parents [is] likely to result in serious emotional or physical damage.” But
she did so after recounting A.A. was born substance-exposed, DCS offered
parenting and substance abuse services, but such efforts were unsuccessful.
Further, the record otherwise supports finding continued custody by
Parents would likely cause harm because Parents continue to struggle with
substance abuse and do not have stable housing. And a reasonable person
may deem this evidence sufficient to establish the evidentiary quantum at
issue. Brionna J., 255 Ariz. at 479 ¶ 31.

¶27 On this record, we find no error in the court’s conclusion,
based on the record and the ICWA expert’s testimony, continued custody
of A.A. by Parents “is likely to result in serious emotional or physical
damage to [A.A.].”

¶28 Active efforts require more than creating a plan for
reunification but do not require DCS to “force a parent to participate in
recommended services.” Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415,
423 ¶ 34 (App. 2011). Thus, Father’s citation to Matter of D.J.S., 456 P.3d 820,
837 ¶ 79 (Wash. App. 2020), to argue otherwise is inapposite as contrary to
Arizona law. However, DCS must “provide parents with the necessary
‘time and opportunity to participate in programs designed to help [them]
become’ effective parents.” Yvonne L., 227 Ariz. at 423 ¶ 34 (quoting
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994)).

¶29 Father argues DCS’s termination motion contained
allegations of diligent efforts, not active efforts. Specifically, he contends
DCS offered services, “became aware that Father was struggling to fully
engage in the offered services,” and then “sat back and failed to help Father
enhance his participation.” Mother also adopts these arguments.

¶30 The record shows, however, DCS offered services and
provided Parents time and opportunity to engage in those services, but
Parents did not engage. The ICWA expert and DCS case manager testified

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to these efforts. Because, as a matter of law, DCS is not required to compel
parents’ participation in services, id., on this record, the court did not err by
finding DCS made active efforts to prevent the break-up of the Indian
family, but such efforts were unsuccessful.

¶31 Though Parents do not challenge the factual findings
supporting the termination grounds or the court’s best-interests finding, the
record shows sufficient evidence supports the substance abuse ground
under A.R.S. § 8-533(B)(3) and the best-interests finding. We need not
address the other grounds. See A.R.S. § 8-533(B) (termination requires
satisfying “any one of the” termination grounds and finding termination is
in the child’s best interests); see also Crystal E. v. Dep’t of Child Safety, 241
Ariz. 576, 577–78 ¶ 5 (App. 2017).

CONCLUSION

¶32 We affirm.

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

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