In Re Term of Parental Rights as to B.T.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0064
FILED 08-06-2024

Appeal from the Superior Court in Mohave County
No. S8015JD202300010
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO B.T.
Decision of the Court

M O R S E, Judge:

¶1 Brandon H. ("Father") appeals the juvenile court's order
terminating his parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Ashley T. ("Mother") are the biological parents of
B.T. ("Child"), born in May 2010. Mother is not a party to this appeal.

¶3 In January 2023, the court ordered Child into temporary
physical custody due to Mother's substance abuse. At the time, Father's
"whereabouts [were] unknown," and Child stated she had not seen Father
in a "long time." The Department of Child Safety ("DCS") filed a
dependency petition alleging Father was unwilling or unable to provide
Child with proper and effective parental care and control and neglected to
provide for Child's basic needs. DCS eventually located Father in Iowa.

¶4 At the initial hearing, Father contested the petition's
allegations and requested a dependency adjudication hearing. Following
the hearing, DCS submitted a case plan for family reunification and
prepared to offer Father an Interstate Compact on the Placement of
Children ("ICPC") assessment to determine if Father would be an
appropriate placement for Child. DCS also requested that Father self-refer
to counseling and complete parenting classes in Iowa as part of the case
plan. DCS indicated that it would reassess Child's case plan in August 2023.

¶5 By March 2023, DCS reported that Father had begun weekly
telephonic visitation and Child "expressed that she is trying to get to know
her father." DCS also reported that it was actively "looking into Father" for
an ICPC placement.

¶6 Two months later, Father agreed not to contest the
dependency petition, and the court adjudicated Child dependent. By July
2023, Child reported she did not want to have telephonic visits with Father
because he did not initiate the calls and "she would always have to call him."
DCS reported that all telephonic communication ended between Father and
Child. But DCS also reported that "[w]hen [Child] is willing to participate
with phone calls with [Father]," it would offer Father four hours a week of
visitation. Father did not insist on continued telephonic visitation, dispute
Child's characterization, nor attempt to initiate further telephonic visits. As
to the ICPC assessment, Father reported that he "wants what is best for
[Child]" and "feels that grandmother's house is the best suitable place for
[Child]."

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 IN RE TERM OF PARENTAL RIGHTS AS TO B.T.
Decision of the Court

¶7 In August 2023, at a review hearing, Father indicated he was
"respecting the child's wishes although he wants contact and a relationship
with the child." Father also mentioned "other options of contact with
[Child] and possible therapeutic visitation." The court set a permanency
hearing for December 2023. A few weeks later, DCS invited Father to a
team decision-making ("TDM") meeting to discuss changing the case plan
and finding permanency for Child, but Father did not attend. At the
meeting, DCS reported that Father's lack of communication made it difficult
to determine whether Child would remain in out-of-home care.

¶8 Three months later, Child again reported that she did "not
want phone calls with [Father]." DCS reported that visitation would "be
available when [Child] is ready" and that DCS "has had no contact with
[Father]." DCS also requested a "change of case plan to severance and
adoption" as Child "expressed the desire to stay with her current
placement" and "does not want to go home." The foster care review board
agreed with DCS's request to change the case plan to termination and was
concerned that Father was not engaging with DCS or participating in
services. The court set an initial termination hearing for January 2024.

¶9 At the December 2023 permanency hearing, Father claimed
that the report was "misleading" regarding his "engagement in services
because [DCS] has not asked [him] to engage in any services." Father stated
that he "has been ready and willing to engage with [Child], but he does
respect her wishes but is worried regarding the no contact." Father objected
to the change in the case plan but noted that he would file a "competing
guardianship motion" if the case plan changed to "severance and adoption."
DCS stated it would "reach out to [Child] to suggest phone contact with
[Father]" and "work to set that up if [Child] is willing." The court found
DCS "made reasonable efforts to complete the case plan of reunification"
and granted DCS's request to change the case plan to "severance and
adoption."

¶10 A week later, DCS moved to terminate Father's parental rights
under the nine-months time-in-care ground. DCS claimed that it offered
Father "case management services, case plan staffings, child and family
team meetings, paternity testing, parent locator services, [a TDM] meeting,
and visitation." At the initial termination hearing, Father contested the
petition and requested a trial. The court set a trial for March 2024.

¶11 At trial, the court received DCS reports, case plans, and a
TDM meeting summary into evidence and heard testimony from the DCS
case supervisor and Father. The court found DCS "made a diligent effort to

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 IN RE TERM OF PARENTAL RIGHTS AS TO B.T.
Decision of the Court

provide appropriate reunification services such as visitation" and "[TDM]
meetings." The court also found that Father "substantially neglected to
remedy the circumstances that caused his child to be in out of home
placements." Thus, the court concluded that DCS had proven the
nine-months time-in-care ground by clear and convincing evidence and
terminated Father's parental rights as to Child.

¶12 Father timely appealed. We have jurisdiction under A.R.S.
§§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶13 Parents have a fundamental right to the custody and control
of their children, but that right is not absolute. Michael J. v. Ariz. Dep't of
Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12 (2000). To terminate a parent's rights,
a court must (1) find a statutory ground for termination under A.R.S. § 8-533
by clear and convincing evidence and (2) determine, by a preponderance of
the evidence, that termination is in the child's best interests. Brionna J. v.
Dep't of Child Safety, 255 Ariz. 471, 474, ¶ 1 (2023); see A.R.S. § 8-533(B)
(requiring at least one statutory ground and a best-interests finding).
Because the court "is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts," Ariz.
Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004), we accept
the court's findings of fact if reasonable evidence supports them and will
affirm the court's "legal conclusions" terminating parental rights unless they
are clearly erroneous, Brionna J., 255 Ariz. at 478–79, ¶¶ 30–31. The court's
legal conclusions are clearly erroneous only if we determine "as a matter of
law that no one could reasonably find the evidence to be clear and
convincing." Brionna J., 255 Ariz. at 479, ¶ 31 (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)). We do not reweigh factual or credibility
determinations. See Oscar O., 209 Ariz. at 336, ¶ 14 ("Our task for factual
findings is solely to confirm that there is some reasonable evidence in the
record to sustain them.").

¶14 Father argues the court's finding that DCS made a diligent
effort to provide him with appropriate reunification services is not
supported by the evidence. To terminate parental rights under the
nine-months time-in-care ground, "DCS must prove (1) the child has been
in an out-of-home placement for a cumulative total period of nine months;
(2) diligent efforts have been made to provide the parent with appropriate
reunification services; and (3) the parent has substantially neglected or
willfully refused to remedy the circumstances that caused the child to be in
an out-of-home placement." E.R. v. Dep't of Child Safety, 237 Ariz. 56, 59–60,

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Decision of the Court

¶16 (App. 2015); see A.R.S. § 8-533(B)(8)(a) (nine-months time-in-care
ground).

¶15 Father claims that DCS "failed to implement a service plan
that was particular" to his needs, "as it failed to provide paternity testing,
failed to provide professionally monitored telephonic visits, ultimately
failed to provide placement-monitored telephonic visits, and any other
service, including therapeutic intervention to address [Child's] attitude
towards visitation and reunification." The record shows DCS established
paternity almost ten years ago in a previous dependency, making paternity
testing unnecessary. The record also shows that DCS provided Father
weekly telephonic visitation with Child. Father did not object to telephonic
visitation or request professional or placement monitoring for those visits.
Nor did he object to the court's findings following the review and
permanency hearings that DCS was making reasonable efforts to finalize
the permanency plan for Child, including providing Father parenting time
with Child. The court also received a July 2023 DCS report showing that
Father had not initiated any telephonic visits with Child after she stopped
calling Father.

¶16 As to "therapeutic intervention," the DCS case supervisor
testified that therapeutic visits are arranged at the recommendation of a
child's counselor. Child was receiving counseling, but the DCS case
supervisor testified that Child refused visitation with Father, and "when the
child refuses outright . . . we can't force them." While Father mentioned
therapeutic visits and other options of contact at the review hearing in
August 2023, he failed to attend the TDM meeting a few weeks later, where
DCS discussed reunification services and Child's case plan. In fact, the
record does not reveal any effort by Father to contact DCS between August
2023 and November 2023 to discuss alternative options for visitation or
Child's case plan. At trial, the court noted that in cases where the child
refuses visitation, "parents step up their efforts" by "coming out for
visits, . . . sending cards, gifts or letters," which encourages the child to
engage with the parent. But the court stated that Father made no effort to
"even start down that road" and failed to take "any reasonable action to
repair the bridge, to repair that line of communication other than just sort
of sitting by and waiting to see what happened." The court acknowledged
that Father sent a letter to Child but noted he sent it only "recently," even
though he had "been aware since . . . July of 2023, if not earlier, that there's
a problem, that [Child] does not want to talk to him." Thus, the court
concluded "[i]n that context, I'm going to find that [DCS] made a diligent
effort to provide appropriate reunification services such as visitation." We
see no error in that finding.

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 IN RE TERM OF PARENTAL RIGHTS AS TO B.T.
Decision of the Court

¶17 Father also argues that he was unable to engage in services
because DCS failed to inform him of those services as DCS "never sent him
a service letter, had minimal contact with him, never initiated the ICPC
process, and let the child dictate the management of the case." Father
further noted that a DCS case supervisor doubted that DCS made a diligent
effort to provide Father with appropriate reunification services. At trial,
however, the court considered the evidence and concluded that despite
"controverting evidence," Father was aware of services and "aware of at
least some things going on in the case."

¶18 For example, the court highlighted that the August 2023 TDM
meeting report indicated that Father was invited to the meeting, despite
Father testifying that he was not invited. That report also shows Father did
not attend the TDM meeting and that Father's lack of communication made
it difficult for DCS to determine whether Child would remain in
out-of-home care. The court noted that "DCS made a diligent effort to set
up that connection between [Child] and [Father], just [Father] did not utilize
that resource consistently or properly." See Maricopa Cnty. Juv. Action No.
JS-4283, 133 Ariz. 598, 601 (App. 1982) (noting that while DCS has "the
responsibility to make all reasonable efforts to preserve the family
relationship," DCS's responsibility is "not without limits and at some point
the [parent is] required to make a good faith effort to reunite the family").
Thus, the court concluded that DCS "made a diligent effort to provide
appropriate reunification services such as . . . [TDM] meetings." We see no
error in that finding.

¶19 As to the ICPC process, DCS did not complete the ICPC
assessment with Father because he reported that he "wants what is best for
[Child]" and "feels that grandmother's house is the best suitable place for
[Child]," making DCS's efforts to place Child with Father futile. See Mary
Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999)
(requiring "the State to undertake measures with a reasonable prospect of
success" but not "measures that are futile").

¶20 Father argues that a child's reluctance to participate in
services with a parent may be relevant to the court's best-interests finding
but not to the statutory ground for termination. But the court's finding that
Child refused to have contact and reunify with Father is relevant to whether
he substantially neglected to remedy the circumstances that caused Child
to be in out-of-home care. See A.R.S. § 8-533(B)(8)(a) (requiring DCS to
prove that the parent has substantially neglected or willfully refused to
remedy the circumstances that caused the child to be in an out-of-home
placement). Here, the court not only found that Child refused to have

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Decision of the Court

contact and reunify with Father, but also found that DCS made a diligent
effort to provide Father with appropriate reunification services and that
Father failed to engage in those services or contact Child through other
means in an effort to remedy the circumstances and reunify with Child.
More specifically, the court found that Father "did not utilize" DCS
resources "consistently and properly," and the record shows that Child did
not want to continue telephonic visitation with Father because he did not
call her and that "she would always have to call him." Accordingly, there
is reasonable evidence in the record to support the court's findings, and the
court did not clearly err in terminating Father's parental rights. See Oscar
O., 209 Ariz. at 336, ¶ 14; Brionna J., 255 Ariz. at 479, ¶ 31.

CONCLUSION

¶21 We affirm.

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

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