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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 L.K. and A.K.
No. 1 CA-JV 23-0006
FILED 5-30-2023
Appeal from the Superior Court in Maricopa County
No. JD40793
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
Maricopa County Office of the Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
MEMORANDUM DECISION
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.
K I L E Y, Judge:
¶1 Letitia V. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children, L.K. and A.K. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2020, the Department of Child Safety (“DCS”)
received reports that Mother and Richard K. (“Father”) were engaged in
illicit drug use that posed safety risks to their three children, J.K., L.K., and
A.K. Mother disclosed to DCS that she and Father frequently used
methamphetamine, opiates, and marijuana. After refusing substance abuse
services offered by DCS, Mother left the home in December 2020, and DCS
had no contact with her for several months thereafter.
¶3 DCS filed a dependency petition in May 2021, alleging that
the children were dependent as to Mother and Father due to the parents’
admitted use of illicit substances. DCS also alleged that Mother’s “current
whereabouts are unknown.”
¶4 Both parents appeared telephonically at the initial
dependency hearing in May 2021. The court appointed counsel for each
parent and continued the hearing to the following month. Neither parent
appeared at the continued hearing. The court found the three children
dependent with a case plan of family reunification. Initially, DCS placed all
three children with their maternal aunt. Because the oldest child, J.K., began
to exhibit problematic behaviors, he was later moved to a residential group
home.
¶5 Thereafter, DCS had no further contact with either parent for
over a year, and its efforts to locate them were unsuccessful. Other than a
Facebook message to the children’s placement in March 2022 extending
birthday wishes to the youngest child, the parents had no contact with the
children.
2
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
¶6 In May 2022, DCS moved to terminate the parents’ parental
rights to the three children on grounds of abandonment, see A.R.S.
§ 8-533(B)(1), and substance abuse, see A.R.S. § 8-533(B)(3). Both parents
appeared at the status conference in August 2022. The court continued the
status conference to the following month.
¶7 When she met with DCS later that month, Mother admitted
to ongoing substance abuse. DCS referred Mother for substance abuse
treatment, but the provider closed out the services because Mother failed to
complete the initial assessment. In September 2022, DCS referred Mother
for substance abuse testing. She tested multiple times in September and
October, testing positive for methamphetamine and fentanyl every time.
¶8 At a continued hearing in September, Mother’s counsel told
the court that “Mother would like visits” with the children. Because so
much time had passed since Mother’s last contact with the children, the
court ordered a psychological consultation to determine whether visitation
with her would adversely affect the children. The consulting psychologist
recommended that Mother be permitted no contact with the children until
she “demonstrate[d] consistency and the ability to follow through with
contact at a set time.” The psychologist suggested that Mother be required
to contact the DCS caseworker “two times per week at a set time (i.e.,
Tuesdays and Thursdays at 4 pm)” to demonstrate consistent follow-
through before any visits were scheduled.
¶9 Mother was directed to contact the case manager twice a week
at a predetermined time. At a hearing the following month, the DCS
caseworker acknowledged that Mother had complied. The court and the
children’s guardian ad litem nonetheless remained concerned that
visitation with Mother after such an extended period without contact
would be emotionally harmful to L.K. and A.K. Finding that visitation with
Mother created “a serious risk of emotional harm” to L.K. and A.K., the
court entered an order denying visitation until another psychological
consultation could be conducted.1
¶10 After a trial the following month, the court terminated
Mother’s parental rights to L.K. and A.K. on both abandonment and
1 The court also ordered, however, that Mother could have visitation with
J.K., the oldest child, in accordance with J.K.’s wishes.
3
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
substance abuse grounds.2 Mother timely appealed.3 We have jurisdiction
under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶11 Although parents’ rights to custody and control of their
children is fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). The parental relationship may be
terminated if the juvenile court finds, by clear and convincing evidence, at
least one statutory ground for termination under A.R.S. § 8-533(B) and
further finds, by a preponderance of the evidence, that termination is in the
child’s best interest. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474,
¶ 13 (2022). Statutory grounds for termination include abandonment of the
child and the parent’s substance abuse. A.R.S. § 8-533(B)(1), (3).
¶12 Before seeking the termination of parental rights on substance
abuse grounds, DCS is required to try to preserve the parent-child
relationship by making reasonable efforts to provide rehabilitative services
to the parent. Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, 455,
¶¶ 12, 19 (App. 2005). To do so, DCS must “undertake measures with a
reasonable prospect of success” and “provide a parent with the time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 185, 192, ¶¶ 34, 37 (App. 1999). DCS is not, however, required to
“provide every conceivable service or to ensure that a parent participates
in each service it offers,” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994), nor is it required to “undertake rehabilitative
measures that are futile,” see Mary Ellen C., 193 Ariz. at 192, ¶ 34.
¶13 DCS is not statutorily required to provide reunification
services when the parental rights are terminated on grounds of
abandonment under A.R.S. § 8-533(B)(1). See Bobby G. v. Ariz. Dep’t of Econ.
Sec., 219 Ariz. 506, 510, ¶ 11 (App. 2008) (“[N]either [A.R.S.] § 8-533 nor
federal law requires that a parent be provided reunification services before
the court may terminate the parent’s rights on grounds of abandonment.”);
see also Roland T. v. Jessica D., 1 CA-JV 22-0084, 2023 WL 1794165, at *2, ¶ 16
(Ariz. App. Feb. 7, 2023) (mem. decision) (“DCS is not required to provide
reunification services before seeking severance under the abandonment
2 DCS originally moved to terminate the parents’ rights to their oldest child,
J.K., as well, but later withdrew its termination motion as to J.K.
3 The court also terminated Father’s parental rights on the same grounds.
That ruling is not at issue in this appeal.
4
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
ground.”). “Abandonment” is determined by reference to the parent’s
conduct, not the parent’s subjective intent. Michael J., 196 Ariz. at 249, ¶ 18.
¶14 An order terminating parental rights will be affirmed absent
an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004). “Because the trial court is in the best position to weigh
the evidence, judge the credibility of the parties, observe the parties, and
make appropriate factual findings, this court will not reweigh the evidence
but will look only to determine if there is evidence to sustain the [juvenile]
court’s ruling.” Id. (cleaned up).
¶15 Mother asserts that “the termination order constituted an
abuse of discretion,” challenging the juvenile court’s finding of statutory
grounds for termination under A.R.S. § 8-533(B)(1) and (3).
¶16 The undisputed evidence in the record is more than sufficient
to support the termination of Mother’s parental rights on grounds of
abandonment under A.R.S. § 8-533(B)(1). The record shows that Mother
absented herself from the children’s lives and from the dependency
proceedings for over a year, from the initial hearing in May 2021 until the
status conference in August 2022. Mother has offered no justification for
this lengthy absence from her children’s lives, which alone constitutes prima
facie evidence that she abandoned them. See A.R.S. § 8-531(1) (“Failure to
maintain a normal parental relationship with the child without just cause
for a period of six months or more constitutes prima facie evidence of
abandonment.”).
¶17 Moreover, Mother introduced no evidence to rebut the prima
facie showing of abandonment at the termination trial in November 2022.
She presented no evidence, for example, that she attempted to send letters
or gifts to the children, or that she provided financial support for them. See
Maricopa Cnty. Juv. Action No. JS-3594, 133 Ariz. 582, 586 (App. 1982)
(holding that presumption of abandonment was rebutted by evidence that
father made “numerous attempts to keep in touch with his children” and
“regularly sent them gifts and letters”). Mother’s decision to reappear in the
case in August 2022 and then request visitation does nothing to rebut the
prima facie showing of abandonment created by her prior lengthy absence
from the children’s lives. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz.
1, 8 (1990) (“[A] prima facie case of abandonment cannot automatically be
considered rebutted merely by post-petition attempts to re-establish a
parental relationship. Such an automatic rule would virtually eliminate any
possibility of success for a petition in a contested termination action.”); see
also Maricopa Cnty. Juv. Action No. JS-1363, 115 Ariz. 600, 601 (App. 1977)
5
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
(explaining that parent’s failure “to provide for or contact the child for a
period in excess of six months” gives rise to presumption of abandonment,
and “once that presumption has attached, it may [not] be rebutted merely
by a showing of attempts to reestablish a parental relationship after the
petition was filed”). The unrebutted presumption of abandonment requires
us to affirm the juvenile court’s finding of the requisite statutory ground for
termination under A.R.S. § 8-533(B)(1). See Dep’t of Child Safety v. DeShannon
B., 1 CA-JV 19-0262, 2020 WL 2086493, at *3, ¶ 13 (Ariz. App. Apr. 30, 2020)
(mem. decision) (“[W]hen a prima facie case of abandonment is presented,
it . . . creates a presumption in favor of the moving party; the burden then
shifts to the parent to rebut the presumption of abandonment.”).
¶18 Asserting that “DCS is constitutionally obligated to make a
diligent effort to help the parent reunify with the child” before seeking
termination, Mother contends that the termination order is invalid because
DCS purportedly violated her “constitutional right to family-reunification
services.” She acknowledges that DCS “offered an array of services” at the
outset of the proceedings and does not dispute that she failed to engage in
services or otherwise meaningfully participate in these proceedings at any
point prior to August 2022. She complains, however, that, “in and after
August of 2022,” DCS offered her nothing more than “substance-abuse
services.” Mother contends that once she began participating in this case in
August 2022, DCS should have provided her with visitation, parenting
skills services, and housing assistance. Because DCS did not do so, she
argues, DCS violated its “constitutional[] obligat[ion]” to provide her with
appropriate services “to enhance her parenting abilities.”
¶19 Mother never raised her constitutional claim during the
dependency proceedings below, nor did she request any services other than
visitation after she began participating in the proceedings in August 2022.4
She has therefore waived her contention that DCS purportedly violated her
constitutional rights by failing to provide various reunification services. See
Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44, ¶ 19 n.3 (App. 2008)
(holding that arguments “not raised in the juvenile court” were waived on
appeal); see also Roland T., 1 CA-JV 22-0084, at *2, ¶ 16 (Ariz. App. Feb. 7,
2023) (holding that father “waived” his claim that “the superior court
4 When Mother stated at the August 2022 hearing that she was homeless,
the court, on its own motion, ordered the appointment of “a community
resource coordinator to see if we can help you with the homelessness.” At
the next hearing the following month, Mother did not complain that she
had received inadequate housing assistance from DCS or otherwise raise
the issue with the court.
6
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
violated his due process rights by not ordering reunification services” by
“fail[ing] to raise” it in superior court). Although Mother contends that she
“preserved the issue” by “request[ing] reinstatement of family-
reunification services in and after August of 2022,” her request for visitation
at the August 2022 hearing made no reference to any services other than
visitation and alleged no violation of any constitutional right. Her request
for visitation at the August 2022 hearing was therefore insufficient to
preserve the constitutional claim she now raises on appeal. See Cont’l
Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382,
386, ¶ 12 (App. 2011) (“[L]egal theories must be presented timely to the trial
court so that the court may have an opportunity to address all issues on
their merits. If the argument is not raised below so as to allow the trial court
such an opportunity, it is waived on appeal.”) (citation omitted).
¶20 In any event, the record does not support Mother’s allegations
about DCS’s purported failure “to make a diligent family-reunification
effort.” On the contrary, DCS offered a variety of family preservation
services to Mother and Father at the outset of DCS’s involvement in October
2020, including assistance with parenting skills, housing, and employment.
As the juvenile court found, Mother and Father “were offered appropriate
services but did not engage.” Although Mother focuses only on the
purported inadequacy of the services offered after her reappearance in the
case in August 2022, we must consider the services Mother was offered over
the entirety of the dependency proceedings. See Donald W. v. Dep’t of Child
Safety, 247 Ariz. 9, 23, 26, ¶¶ 49, 69 (“[The juvenile] court was required to
examine not only the final months but the entire dependency,” and “the
court must also consider the totality of the circumstances when determining
whether DCS has made diligent efforts.”). Viewed as a whole, the evidence
is more than sufficient to support the juvenile court’s determination that
DCS “appropriately referred Mother and Father to services designed to
remediate the barriers to reunification” at the outset of the case, and the
parents “did not engage.”
¶21 Because we affirm the juvenile court’s determination that
DCS met its burden of establishing grounds for termination under A.R.S.
§ 8-533(B)(1), we need not address Mother’s challenge to the court’s
additional determination that DCS met its burden to establish grounds for
termination under A.R.S. § 8-533(B)(3) as well. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (“If clear and convincing evidence supports
any one of the statutory grounds on which the juvenile court ordered
severance, [the reviewing court] need not address claims pertaining to other
grounds.”).
7
IN RE TERM OF PARENTAL RIGHTS AS TO L.K. and A.K.
Decision of the Court
¶22 To terminate a parent’s rights, the court must not only find at
least one statutory ground for termination but must also determine that
termination is in a child’s best interests. A.R.S. § 8-533(B); Michael J., 196
Ariz. at 249, ¶ 12. Here, the court found that termination was in the best
interests of L.K. and A.K. because they were in an adoptive kinship
placement where their needs were being met. “Denying severance,” the
court found, would “leave [them] to languish in foster care” while “waiting
for their parents to conquer [their] substance abuse issues,” thereby
“deny[ing] them the permanency to which they are entitled.” The court
further noted that both children expressed their desire to be adopted.
Mother does not challenge the court’s “best interests” determination on
appeal. We therefore accept it and need not address it further.
CONCLUSION
¶23 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8