In Re Guardianship of C.M.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE GUARDIANSHIP OF C.M.

No. 2 CA-JV 2023-0133
Filed May 2, 2024

Appeal from the Superior Court in Pima County
No. JD20210494
The Honorable Jane Butler, Judge Pro Tempore

AFFIRMED

COUNSEL

Pima County Office of Children’s Counsel, Tucson
By David Miller
Counsel for Appellant Minor C.M.

Megan Page, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellee Katalina M.

Kristin K. Mayes, Arizona Attorney General
By Dawn R. Williams, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
 IN RE GUARDIANSHIP OF C.M.
Opinion of the Court

OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Presiding
Judge Eppich and Judge Gard concurred.

V Á S Q U E Z, Chief Judge:

¶1 Appellant C.M., born in August 2010, appeals from the
juvenile court’s order denying her motion for permanent guardianship filed
under A.R.S. §§ 8-871 and 8-872. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the
juvenile court’s ruling. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, ¶ 12 (App. 2007). In August 2021, Katalina M. and C.M.’s father were
divorcing. Katalina was “drinking more than [she] should” have, and got
into a “screaming fight” with her daughter, C.M. Katalina told C.M. to go
to her grandmother’s house and never return. C.M. began living with her
grandparents.

¶3 In September 2021, C.M.’s grandparents filed a dependency
petition alleging C.M. dependent as to Katalina primarily based on the
August incident. The Department of Child Safety (DCS) substituted as
petitioner and alleged C.M. was dependent as to Katalina “due to abuse
and/or neglect.”1 When Katalina entered a no contest plea, the juvenile
court found C.M. dependent as to her in March 2022, adopting a family
reunification case plan. In January 2023, the court denied Katalina and
DCS’s joint motion for C.M. to be returned to Katalina and directed C.M. to
file a motion for permanent guardianship. C.M. then filed a motion
requesting her maternal grandparents be appointed her permanent
guardians. Following a seven-part contested hearing, the juvenile court
denied the motion. C.M. timely appealed, and we have jurisdiction. See
A.R.S. §§ 8-235, 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. P. Juv. Ct. 601(A).

1 DCS also alleged, and the juvenile court later adjudicated, C.M.

dependent as to her father. He is not a party to this appeal.

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Opinion of the Court

Discussion

¶4 We will affirm the juvenile court’s ruling on a motion for
permanent guardianship unless it is clearly erroneous. See Jennifer B. v. Ariz.
Dep’t of Econ. Sec., 189 Ariz. 553, 555 (App. 1997). As applicable here, the
juvenile court may establish a permanent guardianship if the guardianship
is in the child’s best interests and all of the following criteria are shown:

1. The child has been adjudicated a
dependent child . . . .

2. The child has been in the custody of
the prospective permanent guardian for at least
nine months. . . .

3. If the child is in the custody of [DCS],
[DCS] has made reasonable efforts to reunite the
parent and child and further efforts would be
unproductive. . . . [and]

4. The likelihood that the child would be
adopted is remote or termination of parental
rights would not be in the child’s best interests.

§ 8-871(A). Of these elements, only the third is contested. The party seeking
a permanent guardianship bears the burden of proof by clear and
convincing evidence. See § 8-872(H).

¶5 In its denial order, the juvenile court found that C.M. had met
her burden except as to § 8-871(A)(3)’s requirement that “further
[reunification] efforts would be unproductive.” The court noted that
Katalina had “successfully completed all case tasks required by DCS”
except for family therapy, in which C.M. “simply refuses to engage.”
Relying on Desiree S. v. Dep’t of Child Safety, 235 Ariz. 532 (App. 2014), the
court stated it was “unable to find by clear and convincing evidence that
further reunification efforts would be unproductive.”

¶6 On appeal, C.M. argues the “juvenile court committed legal
error by applying Desiree S. to a guardianship adjudication.” In Desiree S.,
the mother appealed the order terminating her parental rights to her
eleven-year-old child. 235 Ariz. 532, ¶¶ 6, 11. The mother “successfully
completed all services offered by” DCS except for family counseling, which
the mother was willing to attend but the child was not. Id. ¶ 9. She argued
DCS had not proven that she “was incapable of parenting [the child] in the

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Opinion of the Court

near future.” Id. ¶ 8. This court agreed with the mother that there was no
evidence to support the juvenile court’s finding that she would be unable
to parent the child. Id. ¶ 11. We reasoned that the child’s reluctance to
participate in counseling with his mother could not, by itself, “support the
court’s finding that [m]other will be unable to parent her child in the near
future.” Id. ¶ 12. We further explained that while the child’s reluctance and
refusal to give his mother “an opportunity to parent might go to the court’s
determination of best interests,” it “cannot demonstrate by clear and
convincing evidence that she cannot parent in the near future.” Id. ¶ 11.

¶7 As applied here, the juvenile court did not err by relying on
Desiree S. to conclude C.M. had not met her burden of proving that further
reunification efforts would be unproductive. C.M. correctly points out that
termination and permanent guardianship proceedings have different
requirements. For instance, she correctly notes that the fifteen-month
time-in-care ground for termination requires, in part, a finding that a parent
will be unable to exercise proper and effective parental care in the near
future, A.R.S. § 8-533(B)(8)(c), whereas a permanent guardianship requires
the court to find, in part, that further reunification efforts would be
unproductive, § 8-871(A)(3). But both findings ultimately embrace whether
family reunification is readily attainable. See § 8-533(B)(8)(c) (termination
permissible if appropriate reunification services provided but parent has
not remedied circumstances causing child to be in out-of-home placement
and parent unable to exercise parental care in near future); § 8-871(A)(3)
(guardianship permissible if, in addition to § 8-871(A)(1)-(2) requirements,
reasonable reunification efforts provided and further efforts would be
unproductive). And although Desiree S. is a severance case, the same
“fundamental liberty interest of the natural parents in the care, custody, and
management of their child” is at stake in guardianship actions brought
under § 8-871. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Michael J.
v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, ¶ 11 (2000); § 8-871(E) (permanent
guardian vested with rights and responsibilities of “a custodial parent
regarding the ward’s support, care and education” (quoting A.R.S.
§ 14-5209)).

¶8 C.M. also asserts that by relying on Desiree S., the juvenile
court “improperly import[ed]” the “unable to parent in the near future”
finding into the permanent guardianship context. C.M.’s argument ignores
that she urged the court to waive the § 8-871(A)(3) requirement because
Katalina is “unable to properly care for the child.” § 8-871(A)(3)(b). That
finding is substantially similar to the fifteen-month time-in-care
termination requirement. Compare § 8-533(B)(8)(c) (requiring, for
termination, showing that parent “will not be capable of exercising proper

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Opinion of the Court

and effective parental care and control in the near future”) with
§ 8-871(A)(3)(b) (allowing, in guardianship proceedings, to waive
reunification efforts where “the parent is unwilling or unable to properly
care for the child”). Thus, because C.M. asked the court to consider
Katalina’s inability to properly care for C.M. to exempt her from proving
that further reunification efforts would be unproductive, the court did not
err in relying on Desiree S. to determine whether C.M.’s refusal to engage in
family therapy could inform that determination. See Desiree S., 235 Ariz.
532, ¶ 11 (eleven-year-old’s refusal to participate in family counseling
“cannot demonstrate by clear and convincing evidence that [mother]
cannot parent in the near future”).

¶9 C.M. nevertheless argues that contrary to Desiree S., because
the permanent guardianship statutes explicitly put the child’s best interests
at the forefront, a child’s refusal to participate in reunification services
should satisfy the finding that “further efforts would be unproductive.” See
§ 8-871(A); see also § 8-871(D) (“In proceedings for permanent guardianship,
the court shall give primary consideration to the physical, mental and
emotional needs and safety of the child.”). But her argument conflates the
best-interests finding with the statutory requisites for establishing a
guardianship. They are separate showings and findings. See § 8-871(A)
(“The court may establish a permanent guardianship . . . if the prospective
guardianship is in the child’s best interests and all of the following apply . . . .”
(emphasis added)). In sum, C.M.’s desire not to participate in family
therapy or other reunification services may be relevant to her best interests
and could inform whether further efforts would be unproductive.
However, it does not follow that the juvenile court committed legal error
by relying on Desiree S. to guide its analysis. Thus, the juvenile court did
not err by concluding that C.M.’s refusal alone and without a reasoned basis
was insufficient to establish that further reunification efforts would be
unproductive.2

2Katalina urges us to go further and hold that § 8-871(A)(3) requires

the juvenile court to find the parent at fault for the futility of further
reunification efforts because “[a]ny other reading would put
otherwise-capable parents at the mercy of their minor children’s whims,”
“results in constitutional violations of the right to parent,” and is “absurd.”
We decline to reach that question of statutory interpretation with
constitutional implications because it has not been adequately briefed by
the parties and we can resolve C.M.’s appeal on narrower grounds. See
Falcone Bros. & Assocs., Inc. v. City of Tucson, 240 Ariz. 482, ¶ 11 (App. 2016);
Goodman v. Samaritan Health Sys., 195 Ariz. 502, ¶ 11 (App. 1999) (“It is

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 IN RE GUARDIANSHIP OF C.M.
Opinion of the Court

¶10 Even if the juvenile court’s reliance on Desiree S. was
somehow error, C.M. cannot show that any error was reversible. C.M.
contends the juvenile court “abused its discretion in finding that further
reunification efforts would not be unproductive.” She maintains that “[t]he
evidence at trial clearly supported a finding that further reunification
efforts would be unproductive because C.M. did not desire to return home
and refused to engage in the family therapy process.” As the trier of fact,
the juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002).
Accordingly, when reviewing a guardianship order, “we accept [the
juvenile court’s] findings of fact unless reasonable evidence does not
support them.” Navajo Nation v. Dep’t of Child Safety, 246 Ariz. 463, ¶ 9 (App.
2019).

¶11 Sufficient evidence supports the juvenile court’s finding that
further reunification efforts could be productive. As the court noted, the
only reunification service offered to Katalina that she did not successfully
complete was family therapy, in which C.M. “refuses to engage,” despite
otherwise contacting Katalina on a regular basis and repeatedly asking to
visit at Katalina’s home. Three mental health practitioners and the family’s
assigned DCS case specialist testified that family therapy is a critical service
for C.M. and Katalina to reunify. Further, although two previous referrals
for family therapy had been closed out,3 DCS referred Katalina and C.M.
for family therapy with “one of the top” Ph.D-level psychologists in the area
with “extensive training in trauma therapy.” By the end of the contested
hearing, Katalina had seen the new psychologist for individual sessions and
was in the process of scheduling additional sessions. Further, two licensed
psychologists testified that C.M.’s refusal to engage in family therapy does
not preclude it from being attempted again nor does it rule out the

sound judicial policy to avoid deciding a case on constitutional grounds if
there are nonconstitutional grounds dispositive of the case.”).
3The first referral closed after two joint sessions because the provider

left her practice. The second referral closed without any joint sessions, in
part, because C.M. was “very consistent in that her only goal for family
therapy was to get her mom to understand she is not her mom anymore”
and the therapist felt it was not “safe or clinically appropriate to bring them
in family therapy” under that circumstance. That therapist also believed
that Katalina was unwilling to acknowledge C.M.’s trauma or “take
accountability for her part in what happened.”

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Opinion of the Court

possibility of its success. C.M. generally focuses on the evidence in the
record that supports her position but fails to acknowledge the conflicting
evidence in the record. But our role is not to reweigh evidence or judge
credibility on appeal. See In re Pima Cnty. Dependency Action No. 93511, 154
Ariz. 543, 546 (App. 1987).

Disposition

¶12 We affirm the juvenile court’s ruling denying C.M.’s motion
for permanent guardianship.

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