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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            MATTHEW J., Appellant,

                                         v.

        DEPARTMENT OF CHILD SAFETY, R.J., T.J., LJ., Appellees.

                              No. 1 CA-JV 19-0006
                                FILED 8-29-2019


             Appeal from the Superior Court in Navajo County
                         No. S0900JD201700018
                The Honorable Michala M. Ruechel, Judge

                                   AFFIRMED


                                    COUNSEL

Coronado Law Firm, P.L.L.C., Lakeside
By Eduardo H. Coronado
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety

Taylor Law Office, Snowflake
By D. Shawn Taylor
Counsel for Appellees Guardian Ad Litem for R.J., T.J., L.J.
                        MATTHEW J. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Kent E. Cattani and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1           Matthew J. (Father) appeals the juvenile court’s order
terminating his parental rights to R.J., T.J., and L.J. (collectively, the
Children). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In June 2017, the Department of Child Safety (DCS) received
a report that both Father and the Children’s mother (Mother) were abusing
drugs, homeless, and exposing the Children to dangerous substances and
domestic violence.1 This investigation was closed when DCS was unable to
locate the Children.

¶3            In September 2017, Mother was pulled over while driving
with R.J. and T.J., then ages 5 and 3, unrestrained. After law enforcement
officers found methamphetamine and two pipes in the vehicle, Mother
admitted to using methamphetamine and marijuana the day before.
Mother was arrested, and the Children were released to the care of their
maternal grandmother. Days later, DCS found R.J. and T.J. in Mother’s care
wearing soiled diapers and observed them to be small in stature and
developmentally delayed. Furthermore, Mother appeared to be under the
influence of drugs, and none of the family members present were able or
willing to assist with parenting. At the time and throughout these
proceedings, Father was incarcerated in California awaiting trial on charges
of lewd and lascivious acts with a child under the age of fourteen. DCS
took temporary custody of R.J. and T.J, but was unable to locate the
youngest child, L.J.



1      We view the evidence in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Yvonne L. v. Ariz. Dep’t
of Econ. Sec., 227 Ariz. 415, 422, ¶ 27 (App. 2011) (citing Maricopa Cty. Juv.
Action No. JD-5312, 178 Ariz. 372, 376 (App. 1994)).



                                      2
                       MATTHEW J. v. DCS, et al.
                         Decision of the Court

¶4            DCS filed a petition alleging the Children were dependent as
to Father upon grounds of neglect.2 The juvenile court adjudicated the
Children dependent as to Father in November 2017. Based upon a
preponderance of the evidence, the court determined Father was neglecting
the Children both through his incarceration and his failure to protect the
Children from Mother’s substance abuse. The court also determined that
R.J. and T.J. were developmentally delayed, underweight, and essentially
nonverbal. Both were found to have special needs, which were not being
met while under the care of their parents. Further, neither of the two were
potty-trained, and doctors attributed their overall condition to neglect.

¶5            In January 2018, DCS found L.J. with Paternal Grandmother
and placed her with her siblings. Like the other Children, L.J. was very
small for her age and developmentally delayed; she also had an untreated
cranial deformity.

¶6            At the contested severance hearing in September and October
2018, Father acknowledged he had pleaded no-contest to a charge of lewd
and lascivious acts with a child under the age of fourteen and had been
advised by DCS to take advantage of any services available to him in jail.
And although Father claimed to have sent letters and support to Children
through family members, the juvenile court found no verification of either.
Father expressed a preference that the Children be placed under a
permanent guardianship with Paternal Grandmother. However, a home
assessment of Paternal Grandmother revealed several areas of concern,
including: a history of substance abuse, uncertainty about her sobriety, a
lengthy criminal record, a lack of sufficient and sustainable income, and
inexperience dealing with special-needs children. Based upon these
concerns, DCS advised that placing Children with Paternal Grandmother
would not be in their best interests.

¶7            The DCS case manager testified that the current foster parents
were providing the Children with a loving and nurturing home
environment. The case manager noted that the foster mother had
specialized training in special education and, under her care, the Children
had shown great improvement in their physical, mental, and emotional
health. Additionallly, the foster parents expressed interest adopting all

2     DCS also alleged the Children were dependent as to Mother on the
grounds of abandonment, neglect, prolonged substance abuse, and out-of-
home placement. Mother’s parental rights were terminated in December
2018. She did not challenge this order, and is therefore not party to this
appeal.


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                         MATTHEW J. v. DCS, et al.
                           Decision of the Court

three children, which would allow them to live together in a safe,
permanent, and stable home.

¶8            After taking the matter under advisement, the juvenile court
found DCS had proved by clear and convincing evidence that it had made
diligent efforts to provide appropriate reunification services, considering
that Father was in jail in another state, and concluded that termination of
Father’s parental rights was warranted because: (1) Father had
“substantially neglected or willfully refused to remedy the circumstances
that cause the child[ren] to be in an out-of-home placement” for longer than
nine months, see Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(8)(a);3 and (2) Father had
neglected the Children by failing to provide a home free from domestic
violence, leaving them with inadequate caregivers, and failing to meet their
needs, which had resulted in significant physical and developmental
delays, see A.R.S. § 8-533(B)(2). The court also found severance was in the
Children’s best interests and entered an order terminating Father’s parental
rights. Father timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for
the Juvenile Court 103(A).

                               DISCUSSION

I.     The Juvenile Court Did Not Err in Finding DCS Made Dilligent
       Efforts to Provide Reunification Services.

¶9             Father argues the juvenile court erred in terminating his
parental rights because DCS did not provide reasonable reunification
services. We will affirm a termination order “absent an abuse of discretion
or unless the court’s findings of fact were clearly erroneous.” E.R. v. DCS,
237 Ariz. 56, 58, ¶ 9 (App. 2015) (quoting Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004)).

¶10            In certain circumstances, Arizona law requires DCS to make
diligent efforts to provide reunification services to parents prior to
petitioning to terminate parental rights. See A.R.S. § 8-533(B)(8), (11), (D).
However, if a parent does not believe the reunification efforts are
appropriate, it is “incumbent on [the parent] to promptly bring those
concerns to the attention of the juvenile court, thereby giving that court a
reasonable opportunity to address the matter.” Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2004). “[A] parent who does not


3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                       4
                         MATTHEW J. v. DCS, et al.
                           Decision of the Court

object in the juvenile court is precluded from challenging that finding on
appeal.” Id. at ¶ 16 (citations omitted). Because Father did not express any
concerns regarding reunification efforts with the juvenile court, he has
waived the issue.

¶11            Even where reunification efforts are required and the issue is
properly preserved, however, DCS is not obliged “to undertake
rehabilitative measures that are futile.” Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999) (citing Maricopa Cty. Juv. Action No.
JS-5209 & No. JS-4963, 143 Ariz. 178, 189 (App. 1984)). Nor is DCS “required
to provide every conceivable service or to ensure that a parent participates
in each service it offers.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994) (citing JS-5209, 143 Ariz. at 189). Indeed, a parent’s
incarceration out-of-state affects the availability and effectiveness of
services. See A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 261
(Alaska 1999) (“[T]he practical circumstances surrounding a parent’s
incarceration — the difficulty of providing resources to inmates generally,
the unavailability of specific resources, and the length of incarceration —
may have a direct bearing on what active remedial efforts are possible.”).
Father does not suggest what DCS could or should have done other than
encourage him to participate in services available through the jail while he
was incarcerated out-of-state. Cf. James S. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 351, 354, ¶ 14 n.4 (App. 1998) (noting reunification services “are not
available in all severance situations” and the length of the parent’s sentence
“cannot be remedied by reunification services”). Accordingly, we find no
error.

II.    Termination of Father’s Parental Rights was in the Children’s Best
       Interests.

¶12            Father argues the juvenile court erred in finding termination
was in the Children’s best interests. We review the best-interests finding
for an abuse of discretion and will only reverse if “as a matter of law, no
reasonable fact-finder could have found the evidence satisfied the
applicable burden of proof.” Titus S. v. DCS, 244 Ariz. 365, 369, ¶ 15 (App.
2018) (citing Mary Lou C., 207 Ariz. at 47, ¶ 8, and Denise R. v. Ariz. Dep’t of
Econ. Sec., 221 Ariz. 92, 94-95, ¶¶ 9-10 (App. 2009)).

¶13            Termination is in a child’s best interests if it would provide
the child an affirmative benefit or eliminate a detriment the child would
otherwise suffer. Dominique M. v. DCS, 240 Ariz. 96, 98, ¶ 8 (App. 2016)
(citing Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 6-7 (1998), and
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004)). It is


                                        5
                        MATTHEW J. v. DCS, et al.
                          Decision of the Court

well-established that “a child’s prospective adoption is a benefit that can
support a best-interests finding.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4-
5, ¶ 16 (2016) (citing Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
379, ¶ 30 (App. 2010)). The court may also consider whether the child is
adoptable or would psychologically benefit from the severance, see JS-
501904, 180 Ariz. at 352 (citing Yavapai Cty. Juv. Action No. J-9956, 169 Ariz.
178, 180 (App. 1991), and Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz.
238, 243-44 (App. 1988)), and whether there is an adoptive placement or if
the current placement is meeting the child’s needs, Audra T. v. Ariz. Dep’t of
Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998) (citing Pima Cty. Juv. Action
No. S-2460, 162 Ariz. 156, 158-59 (App. 1989), and Maricopa Cty. Juv. Action
No. JS-8490, 179 Ariz. 102, 107-08 (1994)).

¶14            Here, the juvenile court found the Children’s foster parents
provided the Children a loving environment in a licensed foster home. The
court also found that foster mother has specialized training in special
education, and, under her care, the Children have shown great
improvement in their physical and mental well-being — a particularly
pertinent fact given that all three Children have special needs. Moreover,
the foster parents are willing to adopt all three Children into a safe, stable,
and permanent home. The record supports these findings, and the findings
support the conclusion that severance is in the Children’s best interests. We
will not second-guess the fact-finder’s assessment of the evidence on
appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App.
2002) (“The juvenile court, as the trier of fact in a termination proceeding,
is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.”) (citing Pima Cty.
Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987)). Accordingly,
we find no abuse of discretion.

III.   The Juvenile Court Considered Placement with Paternal
       Grandmother.

¶15           Finally, Father argues the juvenile court erred by not placing
the Children with Paternal Grandmother. Generally, the court has
“substantial discretion when placing dependent children because the
court’s primary consideration in dependency cases is the best interest of the
child.” Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8 (App.
2008) (citing A.R.S. § 8-845(A)(2), and Willie G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 231, 235, ¶ 21 (App. 2005)). Thus, we review placement orders for
an abuse of discretion. Id. (citing Maricopa Cty. Juv. Action No. JD-6236, 178
Ariz. 449, 451 (App. 1994)).



                                      6
                        MATTHEW J. v. DCS, et al.
                          Decision of the Court

¶16           Father argues the juvenile court was required by A.R.S. § 8-
533 and 42 U.S.C. § 671(a)(19) to “consider giving preference to an adult
relative over a non-related caregiver when determining a placement for a
child.” Not so.

¶17            First, 42 U.S.C. § 671 simply establishes the minimum
standards for state foster care and adoption systems to qualify for federal
funding, and is therefore not relevant here. More importantly, A.R.S. § 8-
533 expresses no preference for placing children with a relative over a non-
relative. And, where a statute does reflect a preference for certain types of
placements, the statute “does not mandate that the order of preference be
strictly followed when a placement is not consistent with the needs of the
child.” Antonio P., 218 Ariz. at 405, ¶ 12 (citing A.R.S. § 8-514(B)).

¶18            Second, the record clearly shows DCS and the juvenile court
did, in fact, consider (and reject) placement with Paternal Grandmother.
Accordingly, Father fails to establish error on this basis.

                              CONCLUSION

¶19           The juvenile court’s order terminating Father’s parental rights
to the Children is affirmed.




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




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