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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           MANUEL W., Appellant,

                                        v.

          DEPARTMENT OF CHILD SAFETY, M.W., Appellees.

                             No. 1 CA-JV 15-0012
                               FILED 6-11-2015


             Appeal from the Superior Court in Yuma County
                         No. S1400JD20130529
             The Honorable Kathryn E. Stocking-Tate, Judge

                                  AFFIRMED


                                   COUNSEL

Elizabeth Brown Attorney at Law, Yuma
By Elizabeth Brown
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee DCS


                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
                         MANUEL W. v. DCS, M.W.
                           Decision of the Court

J O N E S, Judge:

¶1            Manuel W. (Father) appeals the trial court’s order
terminating his parental rights to M.W. (Child). On appeal, Father
challenges the trial court’s findings that (1) the State made a diligent effort
to provide reunification services; (2) the State proved by clear and
convincing evidence the statutory ground of six months’ in out-of-home
care; and (3) the State proved by a preponderance of the evidence that
severance was in Child’s best interests. For the following reasons, we
affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Abelina F. (Mother)2 and Father are the natural parents of
Child, born three months premature in Yuma, Arizona, in June 2013. At
birth, Child required a specific eating technique or he would stop
breathing. When Mother failed to complete the training necessary to
demonstrate her ability to feed Child appropriately, the hospital reported
its concerns of possible neglect. At a meeting with the Department of
Child Safety (DCS) and maternal grandparents, Mother agreed to place
Child in foster care for ninety days. Father, a Mexican citizen, was unable
to legally enter the United States, but was invited to participate in the
meeting via telephone; he did not call in.

¶3            DCS contacted the federal agency in Mexico comparable to
Arizona’s Department of Child Safety, DIF,3 to coordinate services for
Father in Mexico. During the ninety-day voluntary placement period,
Father participated in one telephonic visit. During that same period, DIF
completed a home study and offered parenting classes and counseling but

1       When reviewing the trial court’s termination order, we view the
evidence, and draw all reasonable inferences therefrom, in the light most
favorable to upholding the court’s decision. Jordan C. v. Ariz. Dep’t of Econ.
Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).

2       Mother’s parental rights were terminated in December 2014, and
she is not a party to this appeal.

3      DIF is the commonly used acronym for The National System for
Integral Family Development in Mexico, or Sistema Nacional para el
Desarrollo Integral de la Familia.



                                       2
                         MANUEL W. v. DCS, M.W.
                           Decision of the Court

could not complete referrals for those services until necessary
improvements to the home were made and Father’s financial situation
was assessed; at that time, these requirements were not met and DIF did
not recommend placement with Father.

¶4            In December 2013, DCS continued temporary custody of
Child because neither parent had complied with the case plan tasks,
which, for Father, included attending visits via telephone and
demonstrating financial independence and the ability to provide a safe
and stable environment for Child. A dependency petition was filed
shortly thereafter, and Child was found dependent as to Father on the
basis that he was unable or unwilling to care for Child. A case plan goal
of family reunification was set.

¶5           Father was advised by DCS that, in order to reunify with
Child, he needed to actively participate and engage in services, maintain
contact with DCS, demonstrate the ability to parent Child and feed him
appropriately, show an understanding of Child’s medical needs “by . . .
preparing a plan to address [Child]’s medical needs,” maintain
employment, and verify he had a stable home and a safe environment for
Child. He was granted permission to appear telephonically at all
hearings, child family team meetings, and Foster Care Review Board
meetings, but failed to do so.

¶6             DCS was unable to provide Father services or visitation
because he had no legal status in the United States and resided in Mexico.
He was invited to take part in telephonic visits with his then five-month-
old son, but did not do so. Although discussions were had addressing
Father’s ability to obtain assistance from the Mexican consulate and the
possibility of his seeking a short-term visa to facilitate in-person visitation,
Father did not follow through on any of these options. He did not
maintain consistent contact with his attorney, could not be reached by
telephone, and spoke with the DCS caseworker only two times in fifteen
months.

¶7            Father completed a psychological evaluation through DIF,
and was thereafter referred for parenting classes and counseling. Father
completed 36 hours of parenting classes but never engaged in the
recommended therapy or provided any explanation for failing to do so.
DIF ultimately approved Father’s home, but DCS reiterated that Father
needed to (1) create a plan to ensure Child’s medical needs would be met,
and (2) form a bond with Child in order to maintain his parental rights.




                                       3
                        MANUEL W. v. DCS, M.W.
                          Decision of the Court

¶8            Without these requisites having been accomplished, in
August 2014, the case plan was amended to severance and adoption. DCS
filed a motion to terminate the parent-child relationship, alleging grounds
for severance existed under Arizona Revised Statutes (A.R.S.) section 8-
533(B)(8)(b)4 because Father “substantially neglected or willfully refused
to remedy the circumstances that cause[d C]hild to be in an out-of-home
placement.”5

¶9            Although Child’s medical condition was stable at the time of
trial and there were no immediate concerns, Child experienced a myriad
of ongoing medical issues as a result of his premature birth, requiring
“constant monitoring” and quick action in the event of an emergency. For
example, Child required monthly RSV shots between November and
March to protect his lungs. Child was born with an eye condition and a
hole in his heart, both of which needed monitoring. He later developed
plagiocephaly, requiring him to wear a helmet twenty-three hours per day
and travel to Phoenix from Yuma every two weeks to see a specialist.
Child also experienced hearing problems and speech delays; tubes were
put in his ears and he has continued to receive special attention from the
foster parents to address his speech issues. During the period of
dependency, Father did not participate in the care or treatment of Child,
either generally or specifically, in regard to any of these conditions and
did not inquire as to the child’s health except for one conversation with
the DCS caseworker where Father expressed his belief that the
plagiocephaly was not a big deal because he, too, had a misshapen head.

¶10           A trial was set in December 2014 on DCS’s motion to
terminate, and DCS proceeded on the statutory ground that Child had
been in an out-of-home placement for more than six months and Father
substantially neglected or willfully refused to remedy the circumstances
causing the child to be in an out-of-home placement, namely, refusing to
participate in reunification services. On the day of trial, Father’s counsel
requested a continuance, arguing first, DCS did not offer reasonable
services when it failed to offer visitation at the port of entry, and second,
that Father should have additional time to investigate the availability of
medical care for Child close to his home. The motion was denied.

4     Absent material changes from the relevant date, we cite a statute’s
current version.

5     The State also alleged neglect pursuant to A.R.S. § 8-533(B)(2) but
dismissed this allegation prior to trial.



                                     4
                         MANUEL W. v. DCS, M.W.
                           Decision of the Court

¶11            Father appeared telephonically at the beginning of the
hearing but was disconnected, did not call back, and did not testify. The
DCS caseworker testified, based upon her personal observations and those
of her DIF counterpart in Mexico, that Father did not comprehend the
extent of Child’s medical needs and did not comply with the case plan; as
a result of his failure to engage, he had failed to show he could provide
for, or safely care for, Child. A different DCS employee testified,
anecdotally, to a case the agency had been involved in approximately six
years prior where DCS worked with DIF and the Mexican consulate to
coordinate “a very short contact” between the child and father at the port
of entry. However, subsequent efforts in a more recent case to facilitate
similar visits between a mother and child had been unsuccessful.

¶12          The trial court found DCS had made diligent efforts to
provide appropriate reunification services, mostly through its contacts at
DIF, including case management services, case plan staffing, individual
counseling, parenting classes, telephonic visitation, a psychological
evaluation, and a home study, but Father had failed to establish a bond
with Child or otherwise illustrate his ability to care for the Child, who
may require future medical intervention. It further found the State had
proven by clear and convincing evidence the grounds for severance
following six months’ time in care, and by a preponderance of the
evidence that severance was in Child’s best interests.

¶13           Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1) and -2101(A)(1).

                                DISCUSSION

¶14           Parental rights may be terminated if a statutory ground for
severance is found to exist by clear and convincing evidence, and the
court also finds that severance is in the child’s best interests by a
preponderance of the evidence. A.R.S. §§ 8-533(B), -537(B); Kent K. v.
Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We do not reweigh the evidence on
appeal; as the trier of fact, the trial 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). “Accordingly, we view the evidence and reasonable
inferences to be drawn from it in the light most favorable to sustaining the
court’s decision,” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citing Jesus M., 203 Ariz. at 282, ¶ 13), and will affirm a
termination order “unless there is no reasonable evidence to support” the


                                       5
                        MANUEL W. v. DCS, M.W.
                          Decision of the Court

court’s factual findings, Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376,
377, ¶ 2 (App. 1998) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137
Ariz. 19, 21 (App. 1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz.
App. 202, 204 (1974)).

    I.    DCS Made Diligent Efforts to Provide Reunification Services.

¶15           Pursuant to A.R.S. § 8-533, a parent’s rights to a child under
the age of three who has been in an out-of-home placement for at least six
months may be terminated where the parent “substantially neglect[s] or
willfully refuse[s] to remedy the circumstances that cause the child to be
in an out-of-home placement, including refusal to participate in
reunification services offered by [DCS].” A.R.S. § 8-533(B)(8)(b). Where
severance is based upon the length of time a child is in care, DCS must
also prove that it “has made a diligent effort to provide appropriate
reunification services.” Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326,
329, ¶ 18 (App. 2007) (citing Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 47, ¶ 8 (App. 2004)); see also A.R.S. § 8-533(B)(8), (D). Father
argues, first, that DCS did not make a diligent effort to provide
reunification services because it did not offer him “in-person” visitation
with Child at the port of entry into the United States and did not pay for
him to receive counseling.6

¶16           While sympathetic to the challenges Father faced as a result
of his financial limitations and inability to enter the United States, DCS

6       DCS contends Father waived any objection to the adequacy of the
services provided by “remain[ing] silent” on the issue until the day of the
severance trial. Because the trial court is “in a much better position than
this court to evaluate the effectiveness and impact of the service
provided,” a parent who does not object to the adequacy of services in the
trial court waives the issue on appeal. Shawanee S. v. Ariz. Dep’t of Econ.
Sec., 234 Ariz. 174, 178-79, ¶¶ 15-16 (App. 2014). Here, however, Father’s
counsel identified concerns with the services available to Father at the first
hearing and moved for a continuance of the severance trial until DCS
could arrange visitation at the port of entry. See id. at 179, ¶ 18 (noting
“parent dissatisfied with the services actually being provided can raise the
issue with the juvenile court in a variety of ways,” including “at a
termination hearing”). Thus, although “early and often” may be the better
practice for a parent seeking to maintain his parental rights, we cannot say
that Father’s objection made to the trial court was too late to preserve the
issue for appeal.



                                      6
                         MANUEL W. v. DCS, M.W.
                           Decision of the Court

was not required to “provide ‘every conceivable service,’” and need only
provide a parent with the time and opportunity to demonstrate his ability
to care for the child. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
193, ¶ 37 (App. 1999) (quoting Maricopa Cnty. Juv. Action No. JS–501904,
180 Ariz. 348, 353 (App. 1994)). Father was given ample opportunity.

¶17           The record reflects Father was provided case management
services, case plan staffing, parenting classes, a psychological evaluation,
and a home study. Father was also offered individual counseling through
DIF based upon the recommendation of the psychologist. Although DCS
was unable to pay for the service because Father is not a U.S. citizen, it
nonetheless made a good faith effort, given the circumstances, to provide
Father the time and opportunity to participate in counseling. See Mary Lou
C., 207 Ariz. at 50, ¶ 18 (taking into account parent’s circumstances in
assessment of whether reunification services were reasonable); cf. Yvonne
L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 422-23, ¶¶ 29, 35 (App. 2011)
(finding DCS made “active efforts” to prevent break up of family where
caseworker advised non-resident father of his need to attend counseling
and encouraged him to call if he had difficulty making the arrangements);
Mary Ellen C., 193 Ariz. at 192-93, ¶¶ 37-42 (reversing severance where
DCS “neglect[ed] to offer the very services that its consulting expert
recommend[ed]”). It is not required to ensure his participation. JS-
501904, 180 Ariz. at 353 (citing Maricopa Cnty. Juv. Action No. JS-5209 and
No. JS-4963, 143 Ariz. 178, 189 (App. 1984)).

¶18           With regard to in-person visitation, there is no evidence DCS
was capable of facilitating an in-person meeting at the port of entry into
the United States; the single anecdotal example provided required
cooperation of DIF and the Mexican consulate, which had recently been
declined. And Father fails to articulate how in-person visitation would
have assisted him in addressing the issues causing Child to be in an out-
of-home placement — namely, his unwillingness and inability to care for
Child. Moreover, to date, the entirety of Father’s interaction with Child,
now nearly two years old, has been comprised of one telephonic
visitation.7 Even if in-person visitation were possible, it is not reasonable
to expect DCS to offer expanded visitation when the offered contact is
declined without explanation.

7      Father also argues the trial court erred in finding he failed to
establish a bond with Child. There is a single conclusion to be drawn
from Father’s lack of contact with Child, and we find no error in the trial
court’s assertion of the obvious.



                                       7
                        MANUEL W. v. DCS, M.W.
                          Decision of the Court

¶19          Considering the totality of the circumstances and viewing
the facts in the light most favorable to sustaining the trial court’s
judgment, the record supports the finding of diligent efforts.

   II.    Father Substantially Neglected or Willfully Refused to
          Remedy the Circumstances that Caused Child to be in an Out-
          of-Home Placement.

¶20           Father next argues the trial court erred in finding he
substantially neglected or willfully refused to remedy the circumstances
that caused Child to be in an out-of-home placement. At the time of
severance, DCS identified two major concerns: Father was unable to
financially provide for Child, and was either unable or unwilling to
appreciate the serious nature of Child’s medical conditions and act
accordingly.

¶21           The record supports the trial court’s findings as to each
circumstance. The DCS caseworker testified Father was the main source
of income for a family comprised of four adults and one newborn and
made “barely enough” to cover the expenses of the shared home.
Although Father did complete a parenting class, he presented as
immature and irresponsible. He did not participate in, follow-up on, or
inquire as to Child’s medical treatment, and on the one occasion Father
was given information regarding Child’s medical condition, he minimized
the effect on Child’s well-being and was unsupportive of the treatment
being sought. Additionally, after fifteen months, Father had made no
effort to secure medical insurance for Child in Mexico, locate nearby
medical facilities, or even attempt to “prepar[e] a plan to address [Child]’s
medical needs,” as specifically delineated in the case plan. Thus, the DCS
caseworker remained concerned as to whether Father could, or would,
react quickly and obtain medical care for Child.

¶22           Focusing on “the level of the parent’s effort to cure the
circumstances,” as we are required to do, Marina P., 214 Ariz. at 329, ¶ 20,
substantial evidence supports the trial court’s findings that Father
substantially neglected or willfully refused to remedy either the financial
impediments or DCS’s articulated concerns with Child’s medical needs
that prevented reunification. Nor are we persuaded by Father’s argument
that he was relieved of the responsibility of demonstrating his willingness
and ability to parent by waiting until the worst of Child’s medical
conditions had resolved through the diligence and commitment of the
foster parents. Accordingly, we find no error.




                                     8
                        MANUEL W. v. DCS, M.W.
                          Decision of the Court

   III.   Termination of the Parent-Child Relationship is in Child’s
          Best Interests.

¶23           A finding of one of the statutory grounds for severance
under A.R.S. § 8-533, standing alone, does not justify the termination of
parental rights; it must also be proved by a preponderance of the evidence
that termination of the parent-child relationship is in the child’s best
interests. Mary Lou C., 207 Ariz. at 47, ¶ 8 (citing Michael J., 196 Ariz. at
249, ¶ 12). Father argues the trial court erred in determining the child
would be harmed if severance was not granted.

¶24           As an initial matter, to establish best interests, it must only
be shown the child “would derive an affirmative benefit from termination
or incur a detriment by continuing in the relationship,” not both. Oscar O.,
209 Ariz. at 334, ¶ 6 (emphasis added). The benefit to the child,
particularly when severance is sought based upon the child’s length of
time in an out-of-home placement, is the opportunity for permanency
where “‘parents maintain parental rights but refuse to assume parental
responsibilities.’” Id. at 337, ¶ 16 (quoting Maricopa Cnty. Juv. Action No.
JS-6520, 157 Ariz. 238, 243 (App. 1988)). In evaluating the child’s
opportunity for permanency, the trial court considers whether there is a
current plan for the child’s adoption and whether the current placement is
meeting the child’s needs. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz.
345, 350 (App. 2013) (citations omitted).

¶25           Here, the trial court found termination of the parent-child
relationship was in Child’s best interests because he was “placed in a
licensed foster home which is meeting [C]hild’s needs and who intend to
adopt,” and that severance would further the permanency plan of
adoption. The record reflects Child had been with the same placement
since his release from the hospital and had bonded to the foster parents
and their five other children. The court found Child had overcome an eye
condition, a heart defect, plagiocephaly, respiratory weakness, and
difficulties with feeding, hearing, and speech, largely through the
assistance and diligence of the placement. Additionally, Child is
adoptable, and the foster parents are willing to adopt Child and provide a
safe, stable environment that will meet his needs. Based upon these
circumstances, the DCS caseworker testified that if the termination were
not to proceed, Child would be harmed by continuing the dependency
because he would be deprived of permanency.

¶26          The best interests finding is supported by the record, and we
find no abuse of discretion.


                                      9
                      MANUEL W. v. DCS, M.W.
                        Decision of the Court

                            CONCLUSION

¶27           We affirm the order of the trial court terminating Father’s
parental rights to Child.




                                   :ama




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