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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
AUGUSTINE D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.D., TOHONO O’ODHAM
NATION, Appellees.
No. 1 CA-JV 21-0295
FILED 3-17-2022
Appeal from the Superior Court in Maricopa County
No. JD36853
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
Law Office of Justin Fernstrom, Mesa
By Justin Fernstrom
Counsel for Appellee Tohono O’odham Nation
AUGUSTINE D. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Augustine D. (“Father”) appeals the juvenile court’s order
terminating his parental rights to A.D., born April 2020. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
A.D. is an Indian child under the Indian Child Welfare Act (“ICWA”). See
25 U.S.C. § 1903(4) (defining “Indian child”). Father and Syndi V.
(“Mother”) were never married and have three children in common;
Mother has a fourth child from a different father. Father signed an
acknowledgment of paternity for A.D. The parents are enrolled members
of the Tohono O’odham Nation, and A.D. is eligible for enrollment.
¶3 The Department of Child Safety had been involved since 2018
after Mother gave birth to a child exposed to methamphetamine and
marijuana. As a result, the Department removed the children from the
home. At a team decision-making meeting, Father asked the Department
whether he could be a responsible adult of the children, but he tested
positive for methamphetamine in a rule-out drug test despite denying any
substance abuse. The Department offered the parents family preservation
services, parent-aide sessions, substance-abuse testing through Physician
Services Inc. (“PSI”) and TASC Inc., substance-abuse treatment through
TERROS, transportation services, attempts to communicate with the
Nation, and visitation with the children. The parents were repeatedly
reminded of their testing appointments, but Mother barely engaged, and
Father did not engage at all. Because of their lack of participation, the
referral at TERROS and the parent-aide service were closed unsuccessfully.
Both parents continually denied substance abuse and cited distance as a
barrier to their engagement in drug testing.
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AUGUSTINE D. v. DCS et al.
Decision of the Court
¶4 To address this barrier, the Department sought the Nation’s
advice and opinion. The Department and a tribal specialist arranged to
meet with the parents to a create a service plan. Specifically, the plan
included substance-abuse treatment at San Lucy Tribal Center, which was
affiliated with the Nation and closer to the parents’ home. The parents were
also offered scheduled drug testing through PSI or TASC three days per
week. Creating such a structured testing plan is not standard practice but
“used in only the most extreme circumstances.” Even though the parents
knew which days they would be testing and were repeatedly reminded of
their appointments, they failed to show up.
¶5 In 2020, during the dependency of the other children, A.D.
was born substance exposed, removed from the home, and placed with a
relative, also a member of the Nation. Around this time, Father tested
positive again for methamphetamine. He maintained, however, that
someone had tampered with the test and refused to engage in services. The
Department then offered supervised visitation services for several months,
but parents failed to make contact and the Department closed the service.
The Department later petitioned to have A.D. found dependent as to both
parents based on neglect from their history of substance abuse. A few
months after A.D.’s birth, the court found that he was dependent as to both
parents, and the case plan was set for family reunification.
¶6 During this time, the Department maintained contact with the
Nation. Visitation service began again, and the parents were assigned a case
aide to facilitate visitation. The Department again referred the parents for
substance-abuse treatment at TERROS and Arizona Families F.I.R.S.T.,
substance testing through Averhealth, PSI, and TASC, and transportation
services through three companies that later closed because of “excessive
missed trips.” Mother participated sporadically in Averhealth, and Father
failed to test. The Department also recommended that he engage in
parenting classes in his community. He did not maintain communication
with the Department, and the Department had trouble contacting him. He
claimed that his busy job prevented his engagement in services. When
asked about his employment documentation, Father stated that he did not
have to provide that information. Both parents continued to resist engaging
in services, but Mother continued inconsistent engagement in substance-
abuse treatment at San Lucy Tribal Center. The parents claimed that they
missed testing because of a lack of transportation. Nevertheless, they used
transportation services for visits.
¶7 By March 2021, the case plan changed to severance and
adoption, and the Department moved to terminate the parent-child
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AUGUSTINE D. v. DCS et al.
Decision of the Court
relationship of both parents. The court held a termination hearing, and the
parents contested the termination. Father testified that his busy work
schedule, lack of transportation, lack of communication with the Nation
and the Department, and the Covid-19 pandemic all caused his failure to
participate in services. He also testified that he had to work “eight months
straight without a day off.” He noted, however, that he had started services
at San Lucy Tribal Center.
¶8 A Department child safety specialist testified that the
Department attempted to contact the parents by mailing service letters,
calling, sending text messages, and visiting the home to discuss the case.
She also testified that because issues arose with the parents’ transportation,
the Department deviated from its standard practice and arranged an
open-cab referral that followed the parents’ schedule to ensure that they
attended services and visitation. She also testified that the Department
provided all the required services and attempted to communicate with the
Nation in implementing services for the family. She noted that although
in-home visitation is better than visitation in the community, Mother’s use
of methamphetamine created a safety concern that prevented visits from
taking place at home. She also testified that the Department did not provide
a parent-aide service after A.D.’s birth because the Department
prematurely closed the previous parent-aide service for the other children
for lack of participation. She explained that before recommending a new
parent-aide, the parents needed to demonstrate “consistency and
engagement” in services.
¶9 The tribal case manager testified that she believed active
efforts were made to prevent the breakup of the family but that those efforts
were unsuccessful. She noted that the parents never requested additional
services, but she met with them twice to discuss their services and
encourage them to participate. She added that if they had complied, more
services might have been recommended. She acknowledged, however, that
tribal programs were shut down because of the Covid-19 pandemic but that
some services were available virtually. The parents also could have
engaged in services off the reservation.
¶10 The court terminated Father’s and Mother’s parental rights to
A.D. based on six and nine months’ time-in-care and chronic
substance-abuse grounds. The court found that termination was in A.D.’s
best interests and that continued custody of the parents would likely result
in “serious emotional or physical damage” to A.D. The court also found
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AUGUSTINE D. v. DCS et al.
Decision of the Court
that the Department made active efforts to prevent the breakup of the
Indian family under ICWA. Father and Mother timely appealed.1
DISCUSSION
¶11 Father argues that the State did not prove by clear and
convincing evidence that the Department made active efforts to prevent the
breakup of the family under ICWA. A juvenile court’s termination
determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). Because the juvenile 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 will affirm a termination
decision unless no reasonable evidence supports it, Xavier R. v. Joseph R.,
230 Ariz. 96, 100 ¶ 11 (App. 2012).
¶12 To terminate parental rights, the juvenile court must find the
existence of at least one statutory ground under A.R.S. § 8–533 by clear and
convincing evidence and must find that termination is in the child’s best
interests by a preponderance of the evidence. A.R.S. § 8–537(B); Ariz. R.P.
Juv. Ct. 66(C); Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App.
2016). ICWA applies when an Indian child is the subject of a termination.
See Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 416–17 (App. 2011).
Before terminating parental rights under ICWA, the Department must
(1) prove beyond a reasonable doubt that “the continued custody of the
child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child,” Ariz. R.P. Juv. Ct. 66(C); 25
U.S.C. § 1912(f), and (2) prove by clear and convincing evidence that “active
efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that
those efforts have proven unsuccessful,” 25 U.S.C. § 1912(d); Yvonne L., 227
Ariz. at 421 (holding that the standard for proving active efforts is “clear
and convincing”).
¶13 “Active efforts” means “affirmative, active, thorough, and
timely efforts intended primarily to maintain or reunite an Indian child
with his or her family.” 25 C.F.R. § 23.2. The parents must be assisted
“through the steps of a case plan and with accessing or developing the
1 Mother’s counsel filed an affidavit pursuant to Arizona Rule of
Procedure for the Juvenile Court 106(G) attesting that after reviewing the
entire record on appeal, he found no non-frivolous issues to raise. Thus,
even though she filed a notice of appeal, she never filed an opening brief.
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AUGUSTINE D. v. DCS et al.
Decision of the Court
resources necessary to satisfy the case plan.” Id. Active efforts “should be
conducted in partnership with the Indian child and the Indian child’s
parents . . . and Tribe.” Id. They should be “tailored to the facts and
circumstances of the case.” Id. Although “active efforts” can be contrasted
with “passive efforts,” they require more than a mere reunification plan.
Yvonne L., 227 Ariz. at 423 ¶ 34 n.17. But “neither ICWA nor Arizona law
mandates that [the Department] provide every imaginable service or
program designed to prevent the breakup of the Indian family before the
court may find that ‘active efforts’ took place.” Id. at ¶ 34. Further, the
Department cannot force parents to engage in services but must provide
them with the “necessary ‘time and opportunity to participate in programs
designed to help [them] become’ effective parents.” Id. (quoting Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (finding that
active efforts were centered on the mother’s needed services, when the
Department arranged the services, and the extent that she participated in
services).
¶14 Relevant examples of active efforts include (1) identifying
appropriate services and actively assisting parents to obtain those services;
(2) inviting representatives of the child’s Tribe to provide the family with
support and services; (3) implementing “all available and culturally
appropriate family preservation strategies and facilitating the use of
remedial and rehabilitative services provided by the child’s Tribe”;
(4) supporting visitation with parents “in the most natural setting possible”;
(5) identifying community resources and assisting the parents in accessing
them; (6) “[m]onitoring progress and participation in services”; and
(7) considering alternative methods of addressing the parents’ needs where
services are not available. 25 C.F.R. § 23.2.
¶15 Father only challenges the juvenile court’s active efforts
finding. The Department argues that Father waived his right to challenge
this issue on appeal because he did not raise it before the juvenile court. The
Department also argues that even without considering waiver, evidence
supports the juvenile court’s finding of active efforts. We need not reach the
issue of waiver because reasonable evidence shows that the Department
made affirmative, active, thorough, and timely efforts to provide remedial
services and rehabilitative programs to prevent the breakup of the family.
The record demonstrates that the Department offered family preservation
services, case management services, substance-abuse testing and treatment,
visitation services, transportation services, and foster care. A.D. was placed
with a family member, who was also a member of the Nation, to help him
preserve his Native American culture. The Department also offered tribal
services after the parents expressed their wish to participate in
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AUGUSTINE D. v. DCS et al.
Decision of the Court
on-reservation services. The Department actively attempted to
communicate with the parents through phone calls, text messages, email,
in-person meetings, and service letters. The Nation was also actively
involved in those efforts. The tribal case manager testified that active efforts
had been made to preserve the family.
¶16 While Father argues that the Department should have been
more accommodating to his busy work schedule, the record demonstrated
otherwise. First, when the Department asked for documentation about his
employment, he refused to provide the information. The Department could
have used the information to contact his employer to work through an
appropriate schedule. Second, the Department and tribal case manager met
with the parents to create a new service plan to fit their schedule and to
advise them of their responsibilities. They attempted to accommodate
services to the parents’ needs, including providing scheduled drug testing
three times per week, rather than the typical practice of random testing, and
providing substance-abuse treatment closer to their home. The parents
knew in advance when their testing would occur, and transportation was
also provided. Third, evidence shows that Father chose not to engage in
services. He did not maintain contact with the Department, insisted that his
previous positive test results were tampered with, and believed that he was
not at fault for the Department’s involvement. He did, however, attend
visits.
¶17 Father also argues that the Covid-19 pandemic prevented him
from engaging in services and that active efforts required the Department
to wait for tribal programs to reopen before seeking termination of parental
rights. The tribal case manager testified that the parents could have
participated virtually or through off-reservation facilities. They had an
open-cab referral, which would have facilitated the drive to off-reservation
services. Further, Mother participated in some services during the
pandemic. Father also argues that the Department did not provide enough
visitation or a parent aide. He adds that visitation should have occurred in
Mother’s home. But the parents were offered visitation right after A.D. was
taken into the Department’s care. They failed, however, to contact the
supervised-visitation provider in the first few months of the dependency,
and this service closed. They were later offered visitation again. Also, the
Department child safety specialist testified that the parents’ previous
parent-aide closed because of their lack of participation and that they
would have been offered another parent-aide only upon “consistency and
engagement” in services. She added that visitation could not take place at
Mother’s home because her substance abuse created an unsafe
environment.
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AUGUSTINE D. v. DCS et al.
Decision of the Court
¶18 The record demonstrates that the parents had time and
opportunity, even before A.D. was born, to participate in services. They
failed to do so. The Department could not force the parents to engage in
services. Father argues that the “active efforts” standard under ICWA is
higher than the “reasonable efforts” standard under non-ICWA
termination cases. Regardless of the standard, reasonable evidence
supports the juvenile court’s finding that the Department provided active
efforts to prevent the breakup of the family, even though these efforts
proved unsuccessful.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8