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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNNY D., THERESA H., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, D.D., Appellees.

No. 1 CA-JV 18-0047 

Appeal from the Superior Court in Navajo County

No. S0900JD201400019

The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

E.M. Hale Law, Lakeside

By Elizabeth M. Hale

Counsel for Appellant, Johnny D.

Criss Candelaria Law Office P.C., Concho

By Criss E. Candelaria

Counsel for Appellant, Theresa H. 

Arizona Attorney General’s Office, Mesa

By Ashlee N. Hoffmann

Counsel for Appellee, Department of Child Safety

FILED 6-21-2018
JOHNNY D., THERESA H. v. DCS, D.D.

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.

B R O W N, Judge:

¶1 Johnny D. (“Father”) and Theresa H. (“Mother”) appeal the 

superior court’s order terminating their parental rights to their daughter, 

D.D (“the child”). For the following reasons, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At the time of the child’s birth in 2016, her older brother 

(“Brother”) was in the custody of the Department of Child Safety (“DCS”) 

as part of these dependency proceedings. DCS took temporary custody of

the child within days of her birth. DCS then filed a petition alleging the 

child was dependent as to both parents because the parents were 

“neglecting the child due to mental illness” and unable to provide her with 

“appropriate and adequate supervision.” The superior court granted the 

petition, and ordered DCS to make reasonable efforts to achieve the case 

plan of family reunification. 

¶3 In February 2017, DCS moved to terminate the parents’ 

parental rights to Brother based on Arizona Revised Statutes (“A.R.S.”) 

sections 8-533(B)(3) (mental illness or mental deficiency) and § 8-

533(B)(8)(c) (fifteen months’ time in care). Following the May 2017 

severance hearing, the superior court terminated the parents’ parental 

rights to Brother on both grounds.

¶4 Several weeks later, DCS filed a motion for termination of the 

parents’ parental rights to the child pursuant to A.R.S. § 8-533(B)(3) (mental 

illness or mental deficiency) and § 8-533(B)(10) (prior termination of 

parental rights for the same cause within the last two years). After a twoday severance hearing, the superior court granted DCS’s motion on each 

ground and determined termination was in the child’s best interests. 

Mother and Father have timely appealed. 
JOHNNY D., THERESA H. v. DCS, D.D.

Decision of the Court

3

DISCUSSION

¶5 To terminate parental rights, the superior court must find by 

clear and convincing evidence the existence of at least one of the statutory 

grounds for termination enumerated in A.R.S. § 8-533(B), and must also 

find by a preponderance of the evidence that termination is in the child’s 

best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec., 

196 Ariz. 246, 249, ¶ 12 (2000). “[W]e view the evidence and reasonable 

inferences . . . 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). We 

will affirm the ruling when the termination order is supported by 

reasonable evidence. Id. 

¶6 Parental rights may be terminated if “the parent has had 

parental rights to another child terminated within the preceding two years 

for the same cause and is currently unable to discharge parental 

responsibilities due to the same cause.” A.R.S. § 8-533(B)(10). “Same 

cause,” as interpreted under the statute refers not to the same statutory 

ground that supported the prior termination, but “refer[s] to the factual 

‘cause’ that led to the [previous] termination of Appellant’s parental 

rights.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 48, ¶ 11 (App. 

2004).

¶7 It is undisputed that the parents’ parental rights to Brother 

were terminated in 2017, which was within two years of the filing date for 

the petition to terminate parental rights to the child. See Tanya K. v. Dep’t of 

Child Safety, P.K., 240 Ariz. 154, 156, ¶ 6 (App. 2016) (We “measure the 

‘within the preceding two years’ requirement from the date the court 

terminated the parent’s rights to the first child to the date an interested 

party petitions to terminate the parent’s rights to the second child.”). Thus, 

the only issue here is whether reasonable evidence supports the superior 

court’s finding that both terminations were the result of the same factual

cause. 

¶8 One of the primary factual causes underlying the prior 

termination was the parents’ mental disorders, which resulted in their 

inability to discharge parental responsibilities and were likely to continue 

for an indeterminate period. The superior court found that Mother was 

diagnosed with depressive disorder, anxiety disorder, and learning 

disorder. The court also found that

Mother continues to need constant re-direction during 

supervised visitation as regards daily, basic parenting tasks 
JOHNNY D., THERESA H. v. DCS, D.D.

Decision of the Court

4

and has not been able to grasp developmental expectations 

for the child or what is required of her in order to provide 

[child] with effective parental care and supervision. 

Unsupervised visitation between Mother and child needed to 

be stopped in November, 2016 due to the fact the child was at 

risk while in Mother’s care without supervision. It is unlikely

Mother will be able to demonstrate minimally adequate 

parenting skills in the foreseeable future.

¶9 The court found that Father was diagnosed with obsessivecompulsive disorder, attention deficit hyperactivity disorder, paranoid 

schizophrenia, manic depression, and bipolar disorder with psychotic 

features. The court also found 

Father continues to need constant re-direction during 

supervised visitation as regards daily, basic parenting tasks 

and has not been able to grasp developmental expectations 

for the child or what is required of him in order to provide the 

child with effective parental care and supervision. At times 

during observed visitation, Father presents as paranoid 

and/or responding to internal stimuli. On or about 

November, 2016, unsupervised visitation between the Father 

and child needed to be stopped due to Father placing the child 

in jeopardy of imminent physical harm and due to Father 

being significantly deficient in providing for the child’s basic 

day to day needs.

¶10 Regarding the current termination proceeding, the superior 

court found the prior termination was for the same factual cause—the 

parents were “unable to discharge parental responsibilities because of 

mental illness or mental deficiency and there were reasonable grounds to 

believe that the condition[s] would continue for a prolonged indeterminate 

period.” The court repeated the findings quoted above and added 

additional details regarding the parent’s mental challenges. Evidence was 

presented indicating that Mother was diagnosed with substance use 

disorders (alcohol, amphetamine, methamphetamine, and opioid use), 

severe, in either remission or sustained remission; depressive disorder; a 

personality disorder, unspecified, compulsive, and histrionic traits;

generalized anxiety disorder; and specific learning disorder. Father was 

diagnosed with substance use disorders (alcohol, amphetamine, and 

methamphetamine), severe, in either remission or sustained remission;

academic or educational problems; paranoid schizophrenia; bipolar, severe 

with psychotic features; dependent traits; obsessive-compulsive disorder, 
JOHNNY D., THERESA H. v. DCS, D.D.

Decision of the Court

5

generalized anxiety disorder; and attention deficit hyperactive disorder. 

Further, psychological reports and expert testimony were presented 

outlining in detail the parents’ mental health and parenting challenges. 

¶11 Although the parents generally challenge the sufficiency of 

the evidence regarding the mental conditions and their inability to parent 

because of mental conditions, they do not challenge the superior court’s 

finding that their parental rights were previously terminated based on the 

same factual cause that exists in this case. Moreover, we do not reweigh 

evidence on appeal. See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, 

¶ 16 (App. 2016). Rather, we defer to the court’s findings because it “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). On this record, reasonable 

evidence supports termination under A.R.S. § 8-533(B)(10).

1

¶12 Father contends DCS failed to make diligent efforts to provide 

appropriate reunification services. See Mary Lou C., 207 Ariz. at 49, ¶ 15

(concluding that before termination pursuant to A.R.S. § 8-533(B)(10), there 

must be reasonable efforts to provide appropriate reunification services 

unless it would be futile). The State counters that Father waived this 

argument by failing to raise it in the superior court proceedings. Father’s 

briefing does not direct us to any portion of the record in which he

challenged the adequacy of the services DCS provided. See ARCAP 

13(a)(7)(B) (appellate briefs must contain “references to the record on 

appeal where the particular issue was raised and ruled on”). Moreover, 

numerous minute entries, orders, and severance hearing transcripts

confirm the superior court’s finding that the parents never challenged the 

adequacy of services provided or offered by DCS, a finding Father does not 

address on appeal. He has therefore waived this argument. See Shawanee 

S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014) (explaining 

that if a parent believes reunification services are inadequate, 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 and ensure that [DCS] was in compliance with its 

 

1 Because we conclude that reasonable evidence supports the superior 

court’s order based on A.R.S. § 8-533(B)(10), we need not address the other 

ground for termination. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 

280, ¶ 3 (App. 2002).
JOHNNY D., THERESA H. v. DCS, D.D.

Decision of the Court

6

obligation to provide appropriate reunification services as ordered by that 

court”). 

¶13 Father also argues that severance is not in the child’s best 

interests because Father and the child share a bond. Termination is in the 

child’s best interests if the child will “derive an affirmative benefit from 

termination or incur a detriment by continuing in the relationship.” Oscar 

O., 209 Ariz. at 334, ¶ 6. “In making the determination, the juvenile court 

may consider evidence that the child is adoptable or that an existing 

placement is meeting the needs of the child.” Mario G. v. Ariz. Dep’t of Econ. 

Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011). 

¶14 Here, the superior court explained that the child has been 

placed with a licensed foster home since birth. The court found that the 

current placement (where Brother also resides) is providing the child “with 

a loving and nurturing home environment and . . . she has been thriving in 

their care.” The court also found that the “[p]lacement is willing to proceed 

to adoption, which will provide [the child] with the added benefit of 

stability and permanency.” The record supports these findings. Thus, the 

court did not err in finding termination of Father’s parental rights is in the 

child’s best interests. 

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s 

termination of Father and Mother’s parental rights.