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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             CARLOS R., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, M.R., L.R., Appellees.

                              No. 1 CA-JV 16-0372
                                FILED 3-16-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD23651
                 The Honorable Cari A. Harrison, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee


Denise L. Carroll, Scottsdale
Counsel for Appellant
                         CARLOS R. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1           Carlos R. (“Father”) appeals the termination of his parental
rights to his children, M.R. and L.R. (“Children”). For the following
reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Several months after the Children were born, Father
kidnapped and assaulted Mother. Police attempted to arrest Father, but he
fled to New Mexico. The Department of Child Safety (“DCS”) filed a
dependency petition, and placed the Children with their maternal
grandparents. Father was eventually apprehended in New Mexico and
extradited to Arizona, where he pleaded guilty to kidnapping and
aggravated assault, and was sentenced to 10.5 years in prison. After the
Children were found dependent, DCS moved for termination of Father’s
parental rights pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-
533(B)(1) (2017), abandonment, and 8-533(B)(4), length of felony
incarceration.1

¶3            During the first day of the termination hearing, Father
appeared telephonically from the Maricopa County Jail.2 At the hearing,
Father called a witness from the Navajo Nation to testify that DCS did not
comply with the Indian Child Welfare Act (“ICWA”).3 Specifically, Father’s
witness testified that DCS failed to make active efforts to prevent the


1     Absent material revisions after the relevant date, we cite a statute’s
current version.

2        The superior court issued an order for Father to be transported from
the Department of Corrections; however, Father was not transported from
jail to court.

3      Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (1978).



                                     2
                           CARLOS R. v. DCS, et al.
                            Decision of the Court

breakup of the Indian family and that DCS should have assisted Father with
obtaining services while in prison. The superior court set an additional
hearing to determine whether DCS complied with ICWA. The superior
court ordered Father to appear telephonically for the hearing.

¶4             At the subsequent hearing, Father did not appear
telephonically from prison, but was represented by counsel, who
participated fully in the proceeding. DCS presented an ICWA expert who
testified that DCS made active efforts to prevent the breakup of the Indian
family.

¶5            The superior court determined that DCS complied with
ICWA and terminated Father’s parental rights based on abandonment and
length of felony incarceration.4 Father timely appealed the termination of
his parental rights. We have jurisdiction pursuant to A.R.S. §§ 12-120.21
(2017), 12-2101 (2017) and 8-235 (2017).

                                 DISCUSSION

¶6             Custody of one’s children is a fundamental, but not absolute,
right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000).
The superior court may terminate a parent’s rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B),
and upon finding by a preponderance of the evidence that termination is in
the best interests of the child. Id. at 248-49, ¶ 12.

¶7            Father does not challenge the superior court’s determination
that adequate statutory grounds for termination existed or termination was
in the Children’s best interests. Because the Children are Indian children,
the proceedings are subject to ICWA. In addition to the state grounds for
termination, ICWA requires that any party seeking termination of the
Indian parents’ parental rights produce clear and convincing evidence of
unsuccessful active efforts at “remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.” 25 U.S.C.
§ 1912(d) (2012); Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421, ¶ 26
(App. 2011) (“[T]he necessary ICWA ‘active efforts’ finding must . . . be
made under the clear and convincing evidence standard.”). ICWA neither
defines active efforts, nor specifies who must make active efforts, only that
such efforts were unsuccessfully made. See S.S. v. Stephanie H., 241 Ariz.
419, 425, ¶ 21 (App. 2017). Further, the party seeking termination must


4      The parental rights of the Mother were also terminated, but are not
subject to this appeal.


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                         CARLOS R. v. DCS, et al.
                          Decision of the Court

prove beyond a reasonable doubt that “continued custody of the child by
the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.” 25 U.S.C. § 1912(f); Valerie M. v. Ariz. Dep’t
of Econ. Sec., 219 Ariz. 331, 334-35, ¶¶ 11, 14 (2009).

¶8             Father contends that the superior court erred in finding that
DCS made active efforts to prevent the breakup of his family. “[W]hether
‘active efforts’ were made and were unsuccessful requires both factual
findings by the court about the nature and extent of the services provided
and a legal conclusion about their adequacy.” Yvonne L., 227 Ariz. at 422, ¶
28. “[N]either ICWA nor Arizona law mandates that [DCS] 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 423, ¶ 34. “What constitutes ‘active efforts’ will vary, depending on the
circumstances, the asserted grounds for severance and available resources.”
Stephanie H., 241 Ariz. at 425, ¶ 21. We will not reweigh the evidence, and
“look only to determine whether there was substantial evidence to sustain
the court’s finding.” Yvonne L., 227 Ariz. at 422, ¶ 27 (internal quotations
omitted).

¶9            Here, the superior court found that Father’s incarceration for
kidnapping and assaulting the Children’s Mother limited DCS’s ability to
provide reunification services to Father. But even so, DCS encouraged
Father to participate in services available to him through the prison,
provided Father with updates regarding the Children and facilitated
contact between Father and the Children through letters and telephone calls
to relatives. Under the circumstances, although DCS’s reunification efforts
were limited with respect to Father, DCS still made active efforts to provide
reunification services to the parents to prevent the breakup of their family.
See People in Interest of S.H.E., 824 N.W.2d 420, 427 (S.D. 2012) (in
determining whether “active efforts” were made regarding an incarcerated
parent, the court may consider efforts made to support the non-incarcerated
parent, because such efforts are aimed at preserving the Indian family and
there are limited rehabilitative options for incarcerated parents).
Additionally, the superior court determined that DCS offered Mother, who
was not incarcerated, numerous services designed to assist her in parenting
the Children, but she failed to engage in those services. Accordingly, we
conclude that substantial evidence supports the superior court’s
determination that DCS complied with ICWA’s “active efforts”
requirement.

¶10            Next, Father asserts that the superior court erred in making
the active efforts finding based on testimony presented by a DCS employee.


                                      4
                           CARLOS R. v. DCS, et al.
                            Decision of the Court

At the hearing, Father’s witness testified that DCS had not provided active
efforts to prevent the breakup of the family. Conversely, DCS’s ICWA
expert stated that active efforts had been made with respect to the parents.
A superior court has a “duty to independently assess evidence” presented
at a hearing. Leslie C. v. Maricopa Cty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997).
And when evidence is conflicting, the trial court may make a finding
provided there is substantial evidence to support it. Imperial Litho/Graphics
v. M.J. Enters., 152 Ariz. 68, 77 (App. 1986). Because substantial evidence
supports the active efforts testimony provided by DCS, the superior court
did not err in its finding.

¶11          Lastly, Father argues that his due process rights were violated
when the superior court proceeded with the termination hearing while he
was not present in the courtroom. We review constitutional questions de
novo. Emmett McLoughlin Realty, Inc. v. Pima Cty., 212 Ariz. 351, 355, ¶ 16
(App. 2006).

¶12          “The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “In termination
proceedings, due process requires notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the
action and to afford them an opportunity to present their objections.”
Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 92, ¶ 16 (App. 2005)
(quotations and citation omitted).

¶13            Father’s due process rights were not violated by his
telephonic appearance during the first day of proceedings. Prior to the
hearing, the superior court allowed Father the opportunity to consult with
his attorney, and after their consultation, Father’s counsel announced that
he was prepared to proceed. “[A] telephonic appearance is an acceptable
alternative to personal appearance when personal appearance is prevented
by incarceration.” John C. v. Sargeant, 208 Ariz. 44, 48, ¶ 17 (App. 2004).
Similarly, Father’s absence from the second day of the hearing did not result
in a deprivation of rights. The superior court issued an order allowing
Father to appear by telephone; however, Father did not avail himself of the
opportunity to appear and no evidence was proffered to excuse his absence.
Despite Father’s inability to be physically present in the courtroom during
the hearing, his interests were represented by his counsel, who actively
participated in the proceeding on his behalf. “[W]here the parent fails to
appear but is still represented by counsel, the court may proceed in that
parent’s absence because his or her rights will be protected by the presence
and participation of counsel.” Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz.


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                       CARLOS R. v. DCS, et al.
                        Decision of the Court

299, 307, ¶ 25 (App. 2007); see also Monica C., 211 Ariz. at 95, ¶ 26.
Accordingly, the superior court did not err by proceeding with the
termination hearing in Father’s absence.

                           CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights.




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




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