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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHELBY B., TONY T., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, A.T., G.T., Appellees.

No. 1 CA-JV 19-0015 

Appeal from the Superior Court in Maricopa County

No. JD 34422 

The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Denise L. Carroll Esq., Scottsdale

By Denise L. Carroll

Counsel for Appellant, Mother, Shelby B. 

David W. Bell, Attorney at Law, Higley

By David W. Bell

Counsel for Appellant, Father, Tony T. 

Arizona Attorney General’s Office, Tucson

By Autumn Spritzer

Counsel for Appellee, Department of Child Safety

FILED 12-19-2019
SHELBY B., TONY T. v. DCS, et al. 

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Shelby B. (“Mother”) and Tony T. (“Father”) (together, 

“Parents”) appeal the superior court’s order granting permanent 

guardianship of their two sons to the children’s paternal aunt and uncle, 

Debbie and Jonathan Marker. Under A.R.S. § 8-871(A)(3), a court may 

establish a permanent guardianship when the Department of Child Safety 

(“DCS”) “has made reasonable efforts to reunite the parent and child and 

further efforts would be unproductive.” Parents argue that the superior 

court erred in granting permanent guardianship because DCS failed to 

meet its burden of proof regarding these statutory requirements. We 

disagree and affirm.

BACKGROUND

¶2 Parents are the biological parents of A.T., born in 2002; and G.

T., born in 2006 (“Children”).

1 In November 2016, the older child ran away 

from home and began living with his aunt and uncle, the Markers. In June 

2017, Rebeca Moskowitz, the guardian ad litem (“GAL”) for the older child, 

filed a private dependency petition, requesting that the child be made a 

temporary ward of the court in the care, custody, and control of DCS and 

remain placed with the Markers. The petition alleged incidents of domestic 

violence between the Parents as well as acts against A.T. The GAL also 

alleged the Parents suffered from housing instability, failed to provide 

adequate supervision because of both Parents’ habitual overconsumption 

of alcohol, and that Mother had mental health issues. 

1 Initially, paternity had not been established regarding the older child. In 

addition to Father, the court also recognized John Doe as an alleged father 

of the older boy. Father’s paternity of the older child was not established 

until September 2018. At the guardianship hearing, the court entered 

judgment sua sponte establishing that Father was in fact the older boy’s 

father. 
SHELBY B., TONY T. v. DCS, et al. 

Decision of the Court

3

¶3 The court entered temporary orders, joining DCS as a party, 

appointing counsel for the older child and Parents, and placing the child in 

the temporary “care, custody, and control” of DCS. The court found that 

“continuation of the child[] in the home would be contrary to the welfare of 

the child” because the Parents were unwilling or unable to parent the child 

due to substance abuse and domestic violence. With permission of the 

court, DCS later amended the petition to include the younger child. 

¶4 Initially, Parents “refuse[d] to disclose their whereabouts and 

current location of [the younger child].” After being unable to locate the 

younger child, DCS filed a motion for pickup of minor child. The court 

authorized law enforcement to assist in locating the younger child and to

transfer custody from Parents to DCS, over Father’s objection. In his written 

objection to the motion, Father admitted that the younger child had been

living with him all along. 

¶5 Parents denied the allegations in the dependency petition at 

the initial dependency hearing. The court held a contested dependency 

hearing in November 2017, at which time both Parents entered no contest 

pleas to the allegations in the petition. The court found both Children 

dependent and established a case plan for family reunification. 

¶6 The older child remained in his placement with the Markers,

and, initially, DCS “met with [Parents] to develop a safety plan for the 

return of the [younger] child[] to the Father only.” This placement was 

conditioned on Mother leaving the home and Father supervising all 

visitation with Mother. DCS changed its recommendation after the younger 

child expressed concern about Father’s inability to protect him from Mother

and requested to remain with his paternal aunt. In light of the child’s 

concerns, the younger child was also placed with his aunt, Debbie Marker—

one of the two permanent guardians in this case. 

¶7 Under the case plan, Parents were required to engage in 

various services. Mother was referred for urinalysis testing, substance 

abuse assessment and treatment, bonding assessment, individual 

counseling, therapeutic visitation, a psychological evaluation, individual 

counseling, and transportation. Father was referred for urinalysis testing, 

bonding assessment, paternity testing, individual counseling therapeutic 

visitation, psychological evaluation, and transportation. Both Parents were 

also permitted to engage in supervised visitation, but the referral was 

closed in November 2017 because the Children refused to participate in 

visits with either parent. The agency tasked with providing therapeutic 

visitation refused to begin services because of the lack of Parents’ progress
SHELBY B., TONY T. v. DCS, et al. 

Decision of the Court

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in individual counseling. Father was referred for paternity tests eight times 

between September 2017 and August 2018. In August 2018, Father finally 

provided a DNA sample and the lab determined that Father was the older 

child’s biological father. 

¶8 In July 2018, DCS recommended changing the case plan from 

family reunification to permanent guardianship. At that point, the older 

child had been out of the home since November 2016—before the 

dependency had been filed—and had “not had any significant contact with 

[either] Mother [or] Father.” Similarly, the younger child had been out of 

the home since August 2017 and had not had any significant contact with 

Parents. Both Children had been in their placement with the Markers, who 

were “willing to be a permanent placement, if necessary.” 

¶9 The superior court held a hearing on the Motion for 

Appointment of a Permanent Guardianship in December 2018. Parents 

failed to appear for the hearing, and the court noted that, “[M]other and 

[F]ather were properly served, had notice of [the] proceedings, and 

provided no good cause for their failure to attend them. They [were]

deemed to have waived their right to appear and [were] deemed to have 

admitted the allegations of the Motion for Appointment of Permanent 

Guardianship.” The court proceeded in their absence, allowing crossexamination and objections by the Parents’ attorneys. 

¶10 The caseworker testified about the services offered by DCS.

For example, the results of Mother’s first urinalysis test showed that the 

sample was diluted, causing DCS to require additional testing. Mother 

stopped testing from October 2017 through December 2017 when services 

were closed out. The caseworker attempted to reengage Mother in August 

2018 with another referral, but Mother did not participate.

¶11 The caseworker testified that Parents failed to attend two 

separate appointments for bonding assessments. She testified that Parents

participated in individual counseling, but the provider reported both 

Parents failed to engage during counseling, resulting in the referral being

closed due to a lack of participation. Later, DCS again referred Parents for 

counseling, but neither Parent participated in the offered service. Because

Parents were resistant during or completely absent from individual 

counseling, the provider refused to facilitate therapeutic visitation with the 

Children. 

¶12 Following the hearing, the court entered findings that DCS 

had “made reasonable efforts to reunify the family and that further efforts 
SHELBY B., TONY T. v. DCS, et al. 

Decision of the Court

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would be unproductive.” The court based this finding on the Parents’ 

“categorical refusal” to engage in services. At the end of the hearing, the

court appointed the Markers permanent guardians of the Children.

Parents timely appealed.

DISCUSSION

¶13 We review an order establishing a guardianship for clear 

error and will affirm unless no reasonable evidence supports the superior 

court’s findings. Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555 

(App. 1997). The superior court, as the trier of fact, “is in the best position 

to weigh the evidence, observe the parties, judge the credibility of 

witnesses, and resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 

223 Ariz. 86, 93, ¶ 18 (App. 2009) (internal quotation omitted).

¶14 Parents argue DCS failed to meet its burden to show it made 

reasonable efforts at reunification. DCS satisfies its obligation to make 

reasonable efforts to reunify the family when it provides a parent “with the 

time and opportunity to participate in programs designed to help [Parents] 

become an effective parent.” Maricopa Cty. Juv. Action No. JS-501904, 180 

Ariz. 348, 353 (App. 1994). It is not DCS’ duty to force parents to participate 

in the services they offer. Id.

¶15 Mother initially participated in drug and alcohol testing, but 

she was inconsistent. In September 2017, she provided only two negative 

samples and one diluted sample; and then by October 2017, Mother had 

quit participating in drug and alcohol testing altogether. Mother completed

a psychological evaluation but beyond this, Mother did not engage in other

recommended services.

¶16 Similarly, Father failed to participate in services. As noted 

above, Father was offered multiple services including urinalysis testing. 

Father participated in one test that was negative. DCS referred Father for a 

hair follicle test, but the caseworker could find no records that he 

participated. DCS referred father for a psychological evaluation that he 

never completed. Father finally participated in a paternity test after his 

eighth referral and only after DCS changed the case plan from family 

reunification to permanent guardianship. The two services—one drug test 

and the paternity test – were the only services Father engaged in over the 

course of the dependency despite access to multiple services made available 

to him by DCS. Father attended individual counseling in September 2017 

but did not engage. Father’s counselor felt that Father was not making any 

progress, and eventually this service was closed. Father was again referred 
SHELBY B., TONY T. v. DCS, et al. 

Decision of the Court

6

for counseling in September 2018, but never participated, even after DCS 

repeatedly rescheduled his appointments. DCS is not responsible for 

Parents’ failure to participate in offered services. Accordingly, reasonable 

evidence in the record supports the superior court’s finding that DCS made 

reasonable efforts to reunify the family.

¶17 Parents also allege DCS failed to show that “further 

[reunification] efforts would be unproductive.” A.R.S. § 8-871(A)(3). The 

superior court found that further reunification efforts would be 

unproductive because of “Parents’ categorical refusal to engage in 

service[s] over the last four months, including the [Bonding and Best 

Interest] and alienation assessment, which would have provided more 

information regarding whether the therapeutic intervention ordered would 

be appropriate.” Accordingly, reasonable evidence supports the superior 

court’s finding that further efforts to reunify the family would be 

unproductive in light of parents “categorical refusal” to engage in the 

majority of services offered. 

¶18 There is ample evidence in the record to support the court’s 

findings that DCS made reasonable efforts to reunify the family and that 

further efforts would be unproductive. 

CONCLUSION

¶19 For the foregoing reasons, we affirm.