Kurwin M. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KURWIN M.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.M.,
NAVAJO NATION,
Appellees.

No. 1 CA-JV 20-0219
FILED 1-7-2021

Appeal from the Superior Court in Maricopa County
No. JD30216
The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety

Rothstein Donatelli, LLP, Tempe
By April Olson, Glennas'ba B. Augborne Arents
Counsel for Appellee Navajo Nation
 KURWIN M. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Kurwin M. ("Father") appeals the juvenile court's order
adjudicating his child, S.M., dependent as to Father. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 "On review of an adjudication of dependency, we view the
evidence in the light most favorable to sustaining the juvenile court's
findings." Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App.
2005).

¶3 Father and Cari T. ("Mother") are the biological parents of
S.M., born March 2012 ("Child").1 The Child is an enrolled member of the
Navajo Nation. The Indian Child Welfare Act, 25 U.S.C. § 1901, et seq.
("ICWA"), governs this proceeding.

¶4 Father has a long criminal history and an extensive history
with the Department of Child Services ("DCS"). In 2012, DCS filed a
dependency petition after receiving a substantiated report that Father hit
another of his children, K.M., with a belt leaving welts on his forearm and
back. Father did not engage in reunification services, but DCS reunited
Mother and K.M., and dismissed the dependency.

¶5 In April 2015, DCS filed the first petition alleging the Child
was dependent because Father abused substances, Father and Mother
engaged in domestic violence, and Mother was incarcerated. This time,
Father successfully participated in reunification services, and in February
2017, the juvenile court consolidated the dependency with a pending family
court matter, granted Father "sole legal and physical custody" of the Child,
and dismissed the dependency.

1 Mother is not a party to this appeal.

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Decision of the Court

¶6 In December 2018, Father was arrested for criminal trespass
and assault. Father and the Child were homeless after they had been
evicted from their apartment and were allegedly breaking into residences,
and "couch-surfing." At the time of his arrest, Father was impaired and had
alcohol in his possession.

¶7 DCS again removed the Child from Father's custody and filed
a second dependency petition on the grounds of substance abuse, neglect,
domestic violence, and incarceration. DCS and the Navajo Nation worked
to provide Father with reunification services after Father's release from jail.
However, Father failed to participate in services. After Father failed a drug
test, he refused to submit to further tests. Father engaged in visitation but
often verbally abused the case manager and parental aides. As visitation
continued throughout 2019, the Child exhibited destructive behaviors, such
as cutting up his bedsheets and setting fire to toys. The Child's counselor
expressed concern that the Child could pose a risk of harm to himself and
others and that the Child's fear and behaviors resulted from his belief that
he may be returned to Father's care. As a result of these findings, DCS
referred the Child for trauma therapy.

¶8 In April 2019, the Child expressed fear of Father and disclosed
a history of abuse to his foster parents and therapist.

¶9 In May 2019, the juvenile court commenced the first
dependency hearing. At the close of the hearing, the court granted Father
a directed verdict. However, during the hearing, the case manager visited
the Child at his foster placement and learned of Father's multiple acts of
physical abuse. Based on this new information, DCS sought a stay of the
court's order and moved to reopen the dependency and amend the petition
to assert the grounds of abuse. The Child underwent a forensic physical
medical exam with Dr. Kirsch. The exam's results were inconclusive,
although Dr. Kirsch opined that if six months had passed since the last
abuse then she would not expect to find any physical evidence.

¶10 The Child then underwent a forensic interview at Phoenix
Children's Hospital ("PCH"), and the Child again disclosed the multiple
acts of abuse by Father, including beatings with a belt and an extension
cord. After the interview, the DCS investigator "substantiate[d]" the abuse
allegations against Father. Law enforcement filed criminal child-abuse
charges against Father, but the County Attorney's Office ultimately
declined to prosecute the matter.

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Decision of the Court

¶11 In June 2019, the juvenile court denied DCS's motions,
dismissed the dependency, and ordered the Child returned to Father. But
after a status conference, the court vacated its order and authorized DCS to
take the Child into temporary custody again. DCS then filed an amended
dependency petition that included the new abuse allegations.

¶12 After a temporary custody hearing in July, the court found
that, under ICWA, "active efforts were not made to prevent removal of the
child," and ordered the Child returned to Father. When DCS attempted to
return the Child to the apartment where Father lived, DCS discovered the
Child would be sharing a couch with Father and a female occupant. During
a limited walkthrough of the residence, DCS saw drug paraphernalia and
Father admitted it was his. Further, the occupant leasing the apartment did
not clear a criminal background check. DCS and the Child's Guardian ad
Litem ("GAL") filed an emergency motion for reconsideration, which the
court denied.

¶13 During August 2019, the Child remained in DCS custody but
had three visits with Father. DCS attempted, again, to return the Child in
September. The case manager visited Father's new residence and learned
Father shared the home with a schizophrenic roommate who slept on a cot
in the living room with Father and kept a large kitchen knife under his
pillow. The home was dirty with little furniture, no air conditioning, and
the case manager observed 8-10 medicine bottles on the floor. Father was
not named on the lease and was expected to vacate the home within 14
days. Based on these findings, DCS filed another emergency motion for
custody, which the court granted.

¶14 In October 2019, the court commenced a second dependency
hearing. The court heard testimony from Father, the Child's therapist,
Foster Mother, the case manager, Dr. Kirsch, a DCS investigator, the PCH
interviewer, a Navajo Nation social worker, and two Phoenix police
officers. The court again found that DCS had failed to make the active
efforts required by ICWA but allowed DCS "additional time to meet the
active efforts requirement." The court denied Father's motion for return of
the Child, finding that he had failed to demonstrate that he had "stable
housing" and that continued custody of the Child would likely result in
serious emotional or physical damage to the Child. The court did not make
dependency findings.

¶15 In the months following the hearing, Father refused to self-
refer for counseling and remained unwilling to engage in DCS-offered
services, apart from visitation.

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Decision of the Court

¶16 DCS referred the family for therapeutic visits. However,
Father missed several sessions and refused to engage in the counseling
component of the sessions he attended. The counseling was designed to
work on coping skills and anger management, but Father told the therapist
that he did not "need to work on anything" and that he attended to "go
through the motions."

¶17 On several occasions, Father verbally abused the case
manager and case aides. The Child continued to express a fear of Father to
both his foster placement and the case manager. The Child also indicated
he feared for the case aide's safety because she had "no backup" when alone
with Father. DCS brought in a male case-aide administrator to provide
additional supervision during visits. Father was also aggressive and
verbally abusive toward the case-aide administrator, and, during one visit,
threatened to "break" the case-aide. After that incident, DCS temporarily
paused in-person visits due to the COVID-19 pandemic. The Child's
behavior improved during the suspension, but regressed when visits
resumed.

¶18 In April 2020, Father sought the Child's return. See Ariz. R.P.
Juv. Ct. 59. After an evidentiary hearing, the court denied the motion,
finding the Child's report of abuse and Father's displays of anger at the DCS
employees made returning the Child to Father contrary to the Child's best
interests.

¶19 At the May report and review hearing, the juvenile court
determined DCS had made active efforts and that those efforts had been
unsuccessful. In June, Dr. Laird conducted a psychological assessment and
best-interest evaluation. After observing Father and the Child interact for
one hour, Dr. Laird reported that Father exhibited no anger issues,
appeared bonded with the Child, and it would be in the Child's best interest
to be reunited with Father.

¶20 In July 2020, the court commenced a third dependency
hearing. The court heard testimony from Dr. Laird, Father, the ICWA case
manager, and the Navajo Nation social worker, who the parties stipulated
as an expert witness under ICWA. The parties also stipulated to the
juvenile court reviewing the transcripts from the October 2019 dependency
hearing and the April 2020 evidentiary hearing.

¶21 After taking the matter under advisement, the court issued a
twelve-page order adjudicating the Child dependent due to physical abuse,
including "physical discipline with extension cords and belts and other

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Decision of the Court

physical assaults." The court found that DCS had proven, "by clear and
convincing evidence, including the testimony from the Qualified Expert
Witness, that continued custody of the child by Father is likely to result in
serious emotional or physical damage to the child" and that DCS made
active efforts "to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and those efforts have
proven unsuccessful."

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

DISCUSSION

¶23 We review the juvenile court's dependency order for a clear
abuse of discretion and will affirm unless no reasonable evidence supports
the court's findings. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12
(App. 2015). The juvenile court "is in the best position to weigh the
evidence, observe the parties, judge the credibility of the witnesses, and
resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004).

I. Sufficiency of the Evidence.

¶24 Father asserts insufficient evidence supports the dependency
finding and the allegations of abuse were too old to prove Father currently
poses an imminent risk of harm to the Child.

¶25 The statutory definition of a dependent child includes one
"[i]n need of proper and effective parental care and control . . . who has no
parent . . . willing to exercise or capable of exercising such care and control,"
as well as one whose "home is unfit by reason of abuse . . . ." A.R.S. § 8-
201(15)(a)(i), (iii). "Abuse" includes "the infliction . . . of physical injury."
A.R.S. § 8-201(2). Additionally, ICWA requires clear and convincing
evidence, "including testimony of qualified expert witnesses, that the
continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child." 25 U.S.C. § 1912(e).

¶26 The juvenile court found "there is clear and convincing
evidence that Father had physically abused the Child in the past and Father
has failed to take steps to mitigate that danger." The record evidence
supports this finding. The court heard testimony that the Child first
reported the abuse in April 2019. The Child continued to express fear of
Father. Father refused to engage in services to mitigate these concerns. The
evidence further supports the court's finding that Father's "heated conflicts"

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 KURWIN M. v. DCS, et al.
Decision of the Court

with DCS employees in front of the Child raised "serious concerns about
Father's ability to manage his anger." The court found the Child was
"justifiably afraid of Father's angry outbursts and actions."

¶27 Father argues that, even if true, the allegations of abuse are
too old to support a dependency finding. See Francine C. v. Dep't of Child
Safety, 249 Ariz. 289, 299, ¶ 28 (App. 2020) ("A child may be dependent
when a parent is currently unwilling or unable to protect the child from
abuse or neglect."). Here, although the record contains no evidence that
Father abused the Child in the past two years, Father failed to complete
services, acted with hostility toward DCS employees, and caused the Child
to fear being alone with Father. Thus, the unresolved threat remains. See
Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 51, ¶ 16 (App. 2016) (holding
that the condition causing the dependency need not be "continuous or
actively occurring . . . the substantiated and unresolved threat is sufficient").

¶28 Finally, Father argues the court should have given more
credence to Dr. Laird than the ICWA case manager. Although Dr. Laird
testified she believed there was no substantial risk of harm to the Child, the
court was not required to credit her testimony over the case manager and
the Navajo Nation social worker. On appeal, we do not reweigh the
evidence. See Oscar O., 209 Ariz. at 334, ¶ 4.

II. Active Efforts.

¶29 ICWA also requires that DCS demonstrate "that active efforts
have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful." 25 U.S.C. § 1912(d); accord Ariz. R.P. Juv. Ct.
55(C). DCS is not required to provide every imaginable service to show that
active efforts took place but must provide parents with the necessary "time
and opportunity to participate in programs designed to help [them]
become" effective parents. Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 353 (App. 1994).

¶30 As an initial matter, DCS asserts Father waived the issue by
not arguing it at the juvenile court. We disagree. Father contested DCS's
active efforts in his April 2020 motion to return the Child, and his pre-
hearing disclosure statement for the third dependency hearing. Although
Father did not address active efforts in his closing arguments at the
dependency hearing, his counsel addressed it in her opening statement and
cross-examined DCS's witnesses on its efforts and services. On this record,
we do not find the issue waived.

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 KURWIN M. v. DCS, et al.
Decision of the Court

¶31 Father argues the ICWA case manager lacked knowledge
about the case and thus failed to undertake active efforts. DCS transferred
the case to the ICWA case manager in January 2020. She testified that she
reviewed the file and familiarized herself with the case. Both the ICWA
case manager and the Navajo Nation social worker testified to the active
efforts undertaken by DCS. We defer to the juvenile court's determination
of witnesses' credibility. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App.
1998).

¶32 After reviewing the record, we find that reasonable evidence
supports the juvenile court's active-efforts finding. In addition to the
services provided before the October 2019 dependency hearing, DCS and
Father participated in a psychological consultation to identify needed
services. DCS provided Father with a parent aide, but Father refused to
participate in any skill sessions. DCS referred Father for therapeutic
visitation, but Father "advised the therapist that they [did] not need to work
on anything." Father also refused to submit to drug testing or substance-
abuse services. In January 2020, DCS attempted to refer Father for
individual counseling by phone, but Father hung up on them. Father later
claimed he would self-refer to counseling and anger management and DCS
agreed to provide transportation services, but Father never self-referred.
The record evidence shows DCS made active efforts even though it "cannot
force a parent to participate in recommended services." Yvonne L. v. Ariz.
Dep't of Econ. Sec., 227 Ariz. 415, 423, ¶ 34 (App. 2011); see Maricopa Cnty.
Juv. Action No. JS-8287, 171 Ariz. 104, 113 (App. 1991) (holding that the
record supported the court's active efforts finding because "rehabilitative
programs repeatedly were offered . . . yet . . . [the mother] did not take
advantage of the programs").

CONCLUSION

¶33 For the foregoing reasons, we affirm.

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

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