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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FERNANDO M.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.M.,
Appellees.
No. 1 CA-JV 18-0458
FILED 5-16-2019
Appeal from the Superior Court in Maricopa County
No. JD530271
The Honorable David King Udall, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Laurie Blevins
Counsel for Appellee DCS
FERNANDO M. v. DCS, C.M.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Fernando M. ("Father") appeals the superior court's order
appointing a permanent guardian for his daughter ("Child"), born in 2005.
For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Child's mother separated after Child turned two,
and Child lived with her mother until her mother died six years later. Child
then moved in with Father, who began taking Child to therapy in July 2013
after he noticed she had behavioral issues.
¶3 In September 2016, the Department of Child Safety ("DCS")
received a report that Child's maternal grandmother ("Grandmother") had
taken Child to a hospital. A DCS investigator reported that Child said
Father had "grabbed [her] and thrown her against a wall" because he
believed she had moved or taken his bag of marijuana. The investigator
noted that, aside from a red mark on her arm, Child had "no other
observable injuries." The investigator also recounted, however, that Child
said Father "hits her frequently" and that "she was afraid to go home and
that she is not safe" with him. A hospital social worker reported Child
became hysterical and hyperventilated when talking about returning to
Father, and a physician told the investigator that Child said she was afraid
to go home. When DCS interviewed Father, he denied physically abusing
Child but admitted he had "swatted [Child] once and had grounded her
because she was acting out." Father also denied any substance abuse and
stated Child had lied during therapy when she said he had physically
abused her on another occasion, but he admitted he yelled at Child from
time to time.
¶4 DCS took custody of Child and placed her with Grandmother.
The court found Child dependent as to Father and set the case plan as
family reunification. Meanwhile, Child continued to live with
Grandmother, and DCS began offering services to Father to facilitate
2
FERNANDO M. v. DCS, C.M.
Decision of the Court
reunification. Father never raised any concern about Child's placement
with Grandmother; nor did he ever ask DCS to place Child with someone
else.
¶5 In May 2018, the superior court changed the case plan to
guardianship, and DCS moved to have Grandmother appointed as Child's
permanent guardian. The court held a hearing in October 2018, at which
Father, the DCS case manager, and the family therapist testified.
¶6 The court heard evidence that DCS offered Father drug
testing and all his test results were negative. DCS also provided Father and
Child with individual therapy, with Father's therapy emphasizing
"domestic violence and anger management," although Father had not
completed therapy by the time of the guardianship hearing. Father also
participated in family therapy focused on alleviating Child's concerns about
being with Father. The case manager testified DCS considered the family
therapy complete, despite Child's continued fear of Father, because Child
did not want to continue therapy. DCS also provided therapeutic
visitations, which Father successfully completed, followed by supervised
visitation.
¶7 Father testified his visits with Child were "going great" and
family counseling had helped repair his relationship with Child. He also
testified, however, that he felt the counseling was "incomplete" and that he
had asked for additional counseling. The therapist testified she believed
more family therapy would be beneficial. She testified that although Father
had achieved "major progress" and had done "amazing" during certain
therapy sessions, additional counseling would improve his anger
management. The therapist also testified that Child twice said she lied
about Father hitting her. She also testified that Child acknowledged to her
that Grandmother effectively had coached Child about what to say on two
occasions. On cross-examination, however, the therapist testified Child
told her she was nervous about being alone with Father because he might
yell at her, slap her or pull her arm, and that Child told her two or three
times that she did not want to live with Father. The therapist further
testified that Child said Father "blows up when I do something wrong" and
Child described this as Father "yelling, screaming, and destroying her
property." The therapist also testified Child had not recanted her
statements that she was nervous about being around Father and did not
want to live with him.
¶8 The superior court granted DCS's motion and appointed
Grandmother as Child's permanent guardian. The court acknowledged the
3
FERNANDO M. v. DCS, C.M.
Decision of the Court
therapist testified Child had recanted her allegations that Father had struck
her and the therapist had concerns about Grandmother coaching Child.
Nevertheless, the court stated that Father "admitted that he has an anger
management problem" and found Father "has an explosive temper that can
be set off even after having completed counseling." Noting evidence that
Child had been diagnosed with post-traumatic stress disorder, the court
further found Child was still afraid of Father, wanted to remain with
Grandmother and did not want to return to Father. The court also found
DCS had proven the required elements of a permanent guardianship and
"has made reasonable efforts to provide reunification services to both
Father and Child," and that further efforts at reunification would be
unproductive.
¶9 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 8-235(A) (2019), 12-120.21(A)(1) (2019),
-2101(A)(1) (2019) and Arizona Rule of Procedure for the Juvenile Court
103(A).1
DISCUSSION
¶10 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). Under A.R.S. § 8-871(A) (2019), DCS must prove by clear and
convincing evidence that a guardianship is in the child's best interests and,
as relevant here, the following four elements:
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. [DCS] has made reasonable efforts to reunite the parent
and child and further efforts would be unproductive.
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.
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
4
FERNANDO M. v. DCS, C.M.
Decision of the Court
See also A.R.S. § 8-872(G) (2019) (burden of proof). Only the third statutory
element is at issue here.
¶11 The superior court is the trier of fact in a guardianship
adjudication hearing. See Ariz. R.P. Juv. Ct. 63(F). We view the evidence
and reasonable inferences drawn from the evidence in the light most
favorable to sustaining the court's decision and will reverse only if no
reasonable evidence supports the court's findings. See Jordan C. v. Ariz.
Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
¶12 Father argues Child's fear of him was the result of
Grandmother's manipulation and contends DCS is responsible because it
allowed Child to live with Grandmother. Although Father asserts he
suspected as early as September 2016 that Grandmother was manipulating
Child, at no time during the dependency did he raise any concern with the
superior court about the placement or otherwise challenge the court's
repeated findings over time that DCS was making reasonable reunification
efforts. For this reason, Father has waived any challenge to the decision by
DCS to place Child with Grandmother during the dependency. See
Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179, ¶¶ 17-18 (App.
2014).
¶13 DCS offered Father drug testing, individual counseling with
a focus on domestic violence and anger management, family therapy, and
therapeutic and supervised visits with Child. DCS also provided Child
with a psychological evaluation and individual therapy, and Child
participated in family therapy and visitation with Father. Reasonable
evidence supports the superior court's determination that DCS had made
reasonable efforts to reunite Father and Child.
¶14 In challenging the superior court's finding that any additional
efforts by DCS would be unproductive, Father points to his therapist's
testimony that he had made progress in understanding Child and that more
counseling would be helpful. Father's argument, however, is merely a
request to reweigh the evidence, which we will not do. See Alma S. v. Dep't
of Child Safety, 245 Ariz. 146, __, ¶¶ 18-19 (2018). Even after Father had been
receiving services for more than 18 months, Child continued to fear being
alone with him, and just three months before the hearing, police were called
when Father allegedly pulled a gun on a neighbor. Simply put, Father
continued to have issues with anger management, and those issues
continued to cause Child to fear him. Under these circumstances, the case
manager testified DCS decided not to continue family counseling because
Child said she did not want to continue to participate.
5
FERNANDO M. v. DCS, C.M.
Decision of the Court
¶15 As the court found, after more than two years in a temporary
placement, "Child is in need of a permanent solution." In a permanent
guardianship proceeding, the primary focus is on "the physical, mental and
emotional needs and safety of the child." A.R.S. § 8-871(C). Under that
standard, reasonable evidence supports the superior court's finding that
further services would be unproductive because Child's relationship with
Father was not progressing.
CONCLUSION
¶16 For the reasons stated above, we affirm the superior court's
order appointing Grandmother as Child's permanent guardian.
AMY M. WOOD • Clerk of the Court
FILED: AA
6