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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 25-0021
FILED 08-05-2025

Appeal from the Superior Court in Maricopa County
No. JD533384
The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Advocate, Mesa
By Seth Draper
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Michael J. Brown and Judge Andrew J. Becke joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO D.T.
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G A S S, Judge:

¶1 This appeal involves a 5-year-old child who was 4 months old
when the child came into the care of the Department of Child Safety (DCS).
After nearly 3 years of litigation, father consented to the superior court
terminating his parental rights. In the almost 2 years since giving his
consent, father has brought 2 motions to set aside the termination order and
pursued 2 appeals. In his first motion and first appeal, father unsuccessfully
sought relief from the termination order based on untimely disclosure of
the child’s home healthcare services. In this appeal, father challenges the
denial of his second motion, asserting DCS committed fraud on the court
based on its untimely disclosure of a United States Department of Justice
(DOJ) investigation.

¶2 The court affirms.

FACTUAL AND PROCEDURAL HISTORY

¶3 In an appeal from an order terminating parental rights, the
court views the facts in the light most favorable to affirming the superior
court’s findings. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 479 ¶ 32
(2023).

¶4 The memorandum decision in father’s first appeal from his
first motion to set aside discusses the facts underlying the dependency and
the termination. In re D.T., 1 CA-JV 23-0192, 2024 WL 1797656 (Ariz. App.
Apr. 25, 2024) (mem. decision), (review denied Aug. 19, 2024). Briefly, the
child required a feeding tube to eat. In father’s care, the child was losing
weight and was failing to thrive. Father also missed multiple medical
appointments.

¶5 DCS began the dependency in May 2020. At that point, the
child was 4 months old. The dependency petition alleged father could not
care for the child’s special needs because of his “cognitive limitations.” In
June 2022, more than 2 years later, DCS moved to terminate father’s rights.
The motion to terminate alleged, in part, 1 father was “unable to discharge
parental responsibilities because of . . . [a] mental deficiency.” See A.R.S. §
8-533.B.3. DCS’s allegations against father triggered consideration under

1 DCS also moved to terminate father’s rights because the child was in an

“out-of-home placement for a cumulative total period of fifteen months or
longer.” See A.R.S. § 8-533.B.8(c). Those grounds are not relevant to the
issues in this appeal.

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the Americans with Disabilities Act (the ADA), which (as explained in
paragraphs 7 and 8) form the basis for this appeal.

¶6 In response to the motion to terminate, father suggested “the
possibility of termination by consent and a Post Adoption Contact
Agreement.” DCS agreed and amended its motion to terminate “based only
on [f]ather’s signed consent.” Father reviewed the irrevocable adoption
consent form with his lawyer and his guardian ad litem, after which father
acknowledged signing it “freely and voluntarily and not as a result of any
fraud, duress or undue influence (force or trickery).” In August 2023, more
than 3 years after the dependency began, the superior court accepted
father’s knowing and voluntary consent and terminated father’s rights to
the child.

¶7 In April 2023, about 4 months before father consented to the
termination, DCS documented a DOJ investigation into whether DCS was
discriminating against parents with disabilities, which included asking
about father’s case. DCS did not disclose its emails about the DOJ
investigation to father until December 2024, almost 16 months after father’s
August 2023 consent. Though DCS did not disclose the emails, DOJ had a
representative at 4 superior court hearings before father gave his consent,
including the hearing at which he consented. DOJ made its appearance on
the record, so father’s counsel and guardian ad litem would have known
about it.

¶8 Father filed his second motion to set aside the termination,
arguing DCS committed fraud on the court because DCS did not timely
disclose the DOJ investigation. 2 In his motion, father focused his argument
on DOJ’s final report titled “The United States’ Findings and Conclusions
from Investigating the State of Arizona’s Department of Child Safety under
the Americans with Disabilities Act, DJ No. 204-8-264” and dated December
16, 2024. In that report, DOJ concluded DCS violated the ADA by
discriminating against parents with disabilities and children with hearing
disabilities. Indeed, DOJ used father’s case as an example of how DCS
denied “parents with disabilities an equal opportunity to show that they
can safely parent.”

2 The court addressed father’s first motion to set aside in In re D.T., 1 CA-JV

23-0192, 2024 WL 1797656 (Ariz. App. Apr. 25, 2024) (mem. decision),
(review denied Aug. 19, 2024). In that appeal, father also sought relief based
on untimely disclosure but for a different set of documents concerning the
child’s home healthcare services.

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¶9 In its ruling, the superior court noted DCS timely disclosed
those DOJ findings and conclusions. And because DOJ released those
findings and conclusions long after father consented, they could not form
the basis for father’s claim of fraud on the court. After limiting father’s claim
to DCS’s failure to disclose the fact of the DOJ investigation, the superior
court ruled father’s claim under Juvenile Rule 318(c), Arizona Rules of
Procedure for the Juvenile Court, was untimely. The superior court denied
father’s fraud-on-the-court claim because the untimely disclosure did not
constitute fraud on the court.

¶10 The court has jurisdiction over father’s timely appeal of the
superior court’s denial of his second motion to set aside the termination
order under Article VI, Section 9, of the Arizona Constitution, A.R.S. §§
8-235.A, 12-2101.A.1, and Juvenile Rule 603(a).

ANALYSIS

¶11 The court reviews the denial of a motion to set aside for an
abuse of discretion. Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 91 ¶ 27
(2019). The superior court abuses its discretion if its decision is “manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101 ¶ 15 (App.
2007) (internal quotations omitted).

¶12 When reviewing for an abuse of discretion, the court must
affirm the superior court’s ruling if supported by substantial evidence, even
if conflicting. Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009). And the court
does not reweigh conflicting evidence. Id.

I. The superior court did not err when it ruled father untimely filed
his second motion for relief under Juvenile Rule 318(c).

¶13 In his second motion, father sought to set aside the
termination order under Juvenile Rule 318(c).

¶14 Juvenile Rule 318(c) directs the court to Civil Rule 60(b)
through (d), Arizona Rules of Civil Procedure. Civil Rule 60(b) has 6
grounds on which the superior court may set aside a final order. Ariz. R.
Civ. P. 60(b)(1)–(6). Father argues DCS’s untimely disclosure “ran afoul of
due process” under Civil Rule 60(b)(6). Father also argues the untimely
disclosure constitutes a surprise under Civil Rule 60(b)(1) and misconduct
under Civil Rule 60(b)(3). Much of father’s argument contends DCS’s
untimely disclosure constituted constructive fraud, which would fall under

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Civil Rule 60(b)(3)’s “fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct of an opposing party.”

¶15 Those grounds are subject to specific time limits. Father had
to file his motion under Civil Rule 60(b)(1)–(3) grounds “no later than 3
months after entry of the final order.” See Ariz. R.P. Juv. Ct. 318(c). And
father had to file his motion under Civil Rule 60(b)(4)–(6) grounds “within
a reasonable time but no later than 6 months after entry of the final order.”
Id.

¶16 Father did not. Instead, he filed his second motion to set aside
the termination order in December 2024—15 months after the superior
court’s September 2023 order terminating his parental rights. Juvenile Rule
318(c) bars his motion no matter which ground he sought relief under.
Father filed his motion more than 6 months after the superior court entered
the final order. And the analysis does not change because father learned
about the alleged grounds after the time limits had passed. See McKernan v.
Dupont, 192 Ariz. 550, 554 ¶ 13 (App. 1998) (requiring motion for relief
under Civil Rule 60 be filed within time limits after the judgment entered,
not after the movant discovered the grounds).

¶17 Father argues the time limits in Juvenile Rule 318(c) are “not
[] hard limit[s].” See Angelica R. v. Popko, 253 Ariz. 84, 88 ¶¶ 11–12 (App.
2022). In Angelica R., the father alleged the mother fraudulently told the
superior court the father signed the form consenting to the termination. Id.
at 87 ¶¶ 4–7. The superior court found the father knew nothing about the
mother’s action to strip his parental rights by signing the consent form. Id.
¶ 21. Though the court in Angelica R. left it to the superior court to determine
the validity of the parties’ factual allegations, it did determine the exception
to those limits in Juvenile Rule 318(c) arises when the challenge is based on
fraud on the court and voidness, not the grounds in the rule itself. See id. at
88, 91 ¶¶ 13, 22. Also, unlike the father in Angelica R., father here reviewed
the consent form with his counsel and his guardian ad litem and signed it
freely and voluntarily. And so, the time limit in Juvenile Rule 318(c)—no
more than 6 months after entry of the final order—applies here, especially
because in termination cases, “prompt finality . . . protects the child’s
interests.” See In re J.S. S-114487, 179 Ariz. 86, 97 (1994).

¶18 The superior court thus did not err in finding father’s second
motion to set aside was untimely under Juvenile Rule 318(c).

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II. The superior court did not abuse its discretion when it denied
father’s request for relief under the superior court’s inherent
power to set aside the termination order based on alleged
constructive fraud on the court.

¶19 Father next argues his consent to adoption is revocable
because it was “procured through fraud, undue influence, coercion or other
improper methods.” See A.R.S. § 8-106.D (“A consent to adopt is irrevocable
unless obtained by fraud, duress or undue influence.”). Father relies on
fraud, not duress, undue influence, or voidness. Father further does not rely
on actual fraud, instead relying on constructive fraud.

¶20 This court need not decide whether constructive fraud will
support a claim of fraud on the court because the superior court made an
alternative finding in which it assumed constructive fraud could support
father’s fraud-on-the-court claim. In that alternative ruling, the superior
court found the facts here do not support a constructive fraud claim for 2
reasons. First, the superior court found DCS does not stand in a fiduciary
relationship with father. Second, the superior court found father did not
show DCS intentionally misled the superior court. Both findings
independently support the denial, and both are supported by substantial
evidence.

¶21 Constructive fraud is “a breach of legal or equitable duty” if
that breach “tends to deceive others, violates public or private confidences,
or injures public interests.” Green v. Lisa Frank, Inc., 221 Ariz. 138, 156 ¶ 53
(App. 2009). “[C]onstructive fraud does not require a showing of intent to
deceive or dishonesty of purpose.” Id. (internal quotations omitted). But “it
does require a fiduciary or confidential relationship, a breach of duty by the
person in the confidential or fiduciary relationship, and that the person in
breach induced justifiable reliance by the other to his detriment.” Id.
(cleaned up).

¶22 In contrast, “[f]raud on the court is a variety of extrinsic
fraud.” McNeil v. Hoskyns, 236 Ariz. 173, 176 ¶ 14 (App. 2014). It applies
“when, by fraud, a party has prevented a real contest before the court of the
subject matter of the suit, or, put differently, has committed some
intentional act or conduct that has prevented the unsuccessful party from
having a fair submission of the controversy.” Id. at 176–77 ¶ 14 (cleaned up);
see also Angelica R., 253 Ariz. at 88 ¶ 11.

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A. DCS does not stand in a fiduciary relationship with father.

¶23 Father argues DCS stands in a fiduciary relationship to
parents in dependency and termination matters. See generally Taeger v.
Catholic Fam. & Cmty. Servs., 196 Ariz. 285 (App. 1999). Whether one party
stands in a fiduciary relationship with another is a fact question. Id. at 290
¶ 12.

¶24 To begin, father is correct when he says DCS has a duty to
make reasonable efforts to preserve the family. That duty arises from 2
sources. First, it arises from statute. See A.R.S. § 8-533.B.8, .11. Second, it
arises from the parent’s fundamental constitutional rights. See Jessie D. v.
Dep’t of Child Safety, 251 Ariz. 574, 581 ¶ 18 (2021). The existence of a duty
does not end the analysis.

¶25 The crux of the case is whether DCS’s duty to father is as a
fiduciary. Father relies on Taeger to argue DCS owes him a fiduciary duty.
See 196 Ariz. at 290 ¶ 12. Father misplaces his reliance on Taeger. Taeger did
not address a fiduciary relationship between a parent and DCS, a
government agency charged with protecting children. Instead, Taeger
addressed whether a private adoption agency working with potential
adoptive parents owed them a fiduciary duty. Id. at 291 ¶ 14. In that case,
the adoptive agency was not acting at arm’s length from the potential
adoptive parents. It was responsible for preparing, counseling, and
supporting the potential adoptive parents. Id. at 292 ¶¶ 18–19. And it had
greater knowledge about the birth parent. Id. at 291–92 ¶ 16.

¶26 Unlike an adoption agency’s relationship with potential
adoptive parents, DCS’s duty does not arise out of any fiduciary
relationship. See Lorenz v. State, 238 Ariz. 556, 558–59 ¶¶ 11–15, 20 (App.
2015). Instead, DCS’s duty arises because it is charged with protecting
children. See id. at 559 ¶ 14. Indeed, DCS’s primary duty is to meet
children’s needs, not to protect or benefit grandparents or potential
placements. See id. Lorenz concluded the grandparents in that case could not
establish DCS owed them a tort-based duty, let alone a fiduciary duty. See
id. at 559 ¶ 20. Father does not address why this court, in light of Lorenz,
should rule DCS’s duty to father rises to a higher level. And this court finds
no reason to do so. Based on Lorenz, DCS does not owe father a fiduciary
duty. For that reason alone, father cannot establish his claim for
constructive fraud.

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B. Father did not show DCS intended to mislead the superior
court.

¶27 The superior court also did not abuse its discretion when it
found father did not show DCS acted “with the intent to mislead the court.”
See McNeil, 236 Ariz. at 177 ¶ 14. Though constructive fraud does not
require a showing of intent, fraud on the court does. See Green, 221 Ariz. at
156 ¶ 53; McNeil, 236 Ariz. at 177 ¶ 14. As the McNeil court wrote, fraud on
the court occurs “[w]hen a party obtains a judgment by concealing material
facts and suppressing the truth with the intent to mislead the court.”
McNeil, 236 Ariz. at 177 ¶ 14 (quoting Cypress on Sunland Homeowners Ass’n
v. Orlandini, 227 Ariz. 288, 299 ¶ 42 (App. 2011)). The superior court did not
abuse its discretion when it found father did not show DCS acted
intentionally to commit fraud on the court.

III. The superior court did not abuse its discretion when it declined to
draw an adverse inference against DCS.

¶28 Father argues the superior court should have drawn an
adverse inference against DCS because of the untimely disclosure of the
internal email communications about DOJ’s investigation. The superior
court has broad discretion in deciding disclosure and discovery issues.
Marquez v. Ortega, 231 Ariz. 437, 441 ¶ 14 (App. 2013). The appellate courts
leave the choice of appropriate sanctions for failure to disclose to the
superior court’s sound discretion. See id.

¶29 The cases on which father relies do not establish the superior
court abused its discretion when it did not draw an adverse inference
against DCS. See generally Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115
(App. 2015); Gordon v. Liguori, 182 Ariz. 232 (App. 1995). Both Melissa W.
and Liguori discuss drawing an adverse inference from a party’s decision to
withhold testimony, not a party’s failure to disclose. See Melissa W., 238
Ariz. at 117 ¶ 6; Liguori, 182 Ariz. at 237.

¶30 In Melissa W., the court affirmed the superior court’s decision
to draw an adverse inference against a parent who refused to testify at the
termination hearing. 238 Ariz. at 117 ¶ 6. As the court said, “[a superior]
court’s drawing a[n adverse] inference when a parent fails to testify at a
severance hearing is particularly appropriate. A central issue at such
hearings is whether severance of parental rights is in the child’s best
interests.” Id. Here, the evidence is the fact of a DOJ investigation, nothing
more. Nothing about that fact makes it “particularly appropriate” for the
superior court to draw an adverse inference here.

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¶31 Ligouri is similarly unhelpful to father. Ligouri addressed the
factors a court should consider when it decides whether to draw an adverse
inference from a party’s decision not to call a particular witness. 182 Ariz.
at 236 (identifying 3 factors: (1) was the witness under that party’s control,
(2) was the testimony something that party naturally would “be expected
to produce if it were favorable,” and (3) was “the existence or nonexistence
of a certain fact [] uniquely within the knowledge of the witness”). Ligouri’s
3-factor analysis has no application here.

¶32 In contrast here, DCS did not disclose the existence of a DOJ
investigation. Though father’s arguments make much of DOJ’s findings,
those findings came long after father consented. As noted above, father did
not come forward with evidence to show DCS acted with intent to deprive
father of the information. And the information was merely the fact of an
investigation, not the ultimate findings. The superior court also found that
even if father (or at least his counsel) did not know about the investigation
earlier in the case, they should have. In particular, the superior court
documented a DOJ trial attorney attending 4 court hearings before father
signed the consent, including the hearing in which he did so.

¶33 The superior court thus did not abuse its discretion when it
did not draw an adverse inference against DCS. Reasonable evidence
supports that outcome. See Brionna J., 255 Ariz. at 478 ¶ 29.

CONCLUSION

¶34 The court affirms the superior court’s denial of father’s
second motion to set aside the order terminating his parental rights to the
child.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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