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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FERNANDO G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, L.G., Appellees.

No. 1 CA-JV 19-0382 

Appeal from the Superior Court in Maricopa County

No. JD 34958

The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

David W. Bell, Attorney at Law, Higley

By David W. Bell

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellee, Department of Child Safety

FILED 6-16-2020
FERNANDO G. v. DCS, L.G.

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Fernando G. (“Father”) appeals the superior court’s order 

terminating his parental rights. He argues the evidence was insufficient to 

support the superior court’s findings that (1) the Department of Child 

Safety (“DCS”) made diligent efforts to provide appropriate reunification 

services, and (2) that termination is in the child’s best interests. Because 

sufficient evidence supports the superior court’s findings, we affirm.

BACKGROUND

¶2 Father and Veronica G. (“Mother”) have one child in 

common, Lydia, who was born in January 2014.1 Mother has another 

daughter, Paula, who is not related to Father and not subject to this appeal. 

Paula and Lydia live together with paternal grandmother. 

¶3 In October 2017, DCS received a report that Mother was using 

illegal substances, including methamphetamine and marijuana. A 

urinalysis confirmed her use of methamphetamine and amphetamine. 

Father was in custody for a weapons misconduct charge at the time the 

child was born, and Father was in prison throughout most of the 

dependency proceedings.

¶4 DCS took the child into care at the end of October 2017 and 

filed a dependency petition alleging that Father was unwilling or unable to 

provide proper and effective parental care for the child due to incarceration 

and abandonment. The child was found dependent regarding Father in 

November of 2017. 

¶5 DCS asked Father to participate in any services available in 

prison. While in prison, he participated in anger management and an array 

of skills classes, including social, feelings, life, and core skills and Narcotics 

1 Mother is not a party to this appeal.
FERNANDO G. v. DCS, L.G.

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3

Anonymous. Father also obtained his GED while in prison, but did not 

participate in any parenting or child development classes. 

¶6 Father was released from custody in April 2019. He saw his 

child that day, but then waited weeks before seeing her again. There was a 

delay between his release and the start of services because DCS had trouble 

contacting him. DCS eventually was forced to enlist paternal grandmother

to help arrange contact with Father. 

¶7 DCS arranged for parent aide services, including supervised 

visitation, but Father’s participation was inconsistent. Father failed to visit 

his child for up to two weeks at a time. Similarly, Father made only 

occasional attempts to communicate with his child outside of attending 

visitation. The case manager testified that, in addition to parent aide 

services, Father needed to complete additional parenting classes. However, 

Father continued to demonstrate a reluctance to participate throughout the 

provision of services. 

¶8 Father participated in a psychological examination with 

Dr. Velez, who determined he has an antisocial personality disorder. 

Dr. Velez had “concerns . . . regarding [Father’s] . . . capabilities to maintain 

and sustain . . . long term emotional and behavioral stability,” and that he 

did “not have the coping skills and the stability . . . to manage his behavioral 

state and his parenting role.” Dr. Velez opined that Father would benefit 

from more parenting classes and parent aide services to bolster his 

parenting skills. She also recommended cognitive behavioral therapy 

(“CBT”). As of the date of the severance hearing, Father had not called the 

CBT provider nor had he looked into the additional parenting classes. 

¶9 DCS filed a motion for termination of Father’s parental rights 

in December 2018 based on incarceration. After his release from prison, 

DCS amended the basis for termination, instead asserting the statutory 

ground of fifteen months’ time in care. After holding a one-day contested 

severance hearing, the superior court found that (1) DCS had proven the 

statutory ground for termination, (2) DCS had made diligent efforts to 

provide Father with reunification services, (3) Father was unable to remedy 

the circumstances that caused the child to be taken into care, and (4) 

termination was in the child’s best interests. Father timely appealed. 

DISCUSSION

¶10 “Parents possess a fundamental liberty interest in the care, 

custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz. 

279, 284, ¶ 24 (2005). But even fundamental rights are not absolute. Id. A 
FERNANDO G. v. DCS, L.G.

Decision of the Court

4

court may sever those rights if it finds clear and convincing evidence of one 

of the statutory grounds for severance and finds by a preponderance of the 

evidence that severance is in the children’s best interests. See A.R.S. §§ 8–

533(B), –537(B); Aleise H. v. Dep’t of Child Safety, 245 Ariz. 569, 572, ¶ 7 (App. 

2018). The superior court is entrusted with a great deal of discretion in 

weighing and balancing the interests of the children, parents, and State. 

Cochise Cty. Juv. Action No. 5666–J, 133 Ariz. 157, 160 (1982).

¶11 We will not disturb the court’s termination of parental rights 

unless the factual findings are clearly erroneous—that is, unless no 

reasonable evidence exists to support them. See Minh T. v. Ariz. Dep’t of 

Econ. Sec., 202 Ariz. 76, 78–79, ¶ 9 (App. 2001). We interpret the evidence 

and reasonable inferences in the light most favorable to affirming the 

court’s order. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 

(App. 2008).

I. Diligent Efforts to Provide Reunification Services

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

appropriate reunification services. Specifically, Father contends that DCS 

did not allow him enough time to complete the required services after he 

got out of prison, and DCS took too long to make appropriate service 

arrangements. We disagree.

¶13 DCS satisfies its obligation to make diligent efforts to reunify 

by providing a parent “with the time and opportunity to participate in 

programs designed to help [the parent] become an effective parent.” 

Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). To 

meet its obligation, DCS need not provide every conceivable service or force 

Father to participate in the services offered. Mary Ellen C. v. Ariz. Dep’t of 

Econ. Sec., 193 Ariz. 185, 187, ¶ 1 (App. 1999). Stated differently, “[t]he State 

is not obliged to undertake futile rehabilitative measures . . . [only] those 

which offer a reasonable possibility of success.” Id. at 192, ¶ 37. Parents have 

an affirmative duty to engage in services in a timely, consistent manner, 

and DCS does not need to leave “the window of opportunity for 

remediation open indefinitely.” Maricopa Cty. Juv. Action No. JS-501568, 177 

Ariz. 571, 577 (App. 1994).

¶14 While in prison, DCS asked Father to participate in available 

services. Although Father took advantage of some self-improvement 

services, he did not participate in any classes geared toward parenting or 

child development. DCS tried to contact Father multiple times to coordinate 

additional services once he was released, but could not reach him. Once
FERNANDO G. v. DCS, L.G.

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5

DCS was able to connect with Father, his participation in the services 

offered was inconsistent.

¶15 Though Father argues DCS should have given him more time; 

Father failed to maximize the window of opportunity for remediation by 

failing to contact DCS, to self-refer for CBT, or to engage in available 

services consistently. See JS-501568, 177 Ariz. at 577. Therefore, reasonable 

evidence supports the superior court’s diligent efforts finding.

II. Best Interests

¶16 Father argues the evidence was insufficient to support a 

finding that the child would benefit from termination. Father asserts the 

child’s best interests would be better served by allowing him additional 

time to implement recommended services. 

¶17 Termination of parental rights is in the children’s best 

interests if the termination would benefit the child or if the continuation of 

the relationship would harm the child. Aleise H., 245 Ariz. at 572, ¶ 9 . Once 

the court’s focus shifts to the best interests analysis, the “foremost concern 

. . . is protecting a child’s interest in stability and security.” Id. (citations 

omitted). The superior court also considers whether the current placement 

is meeting the children’s needs and whether an adoptive placement is 

available. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 

1998). Generally, a finite window of opportunity for remediation is in the 

best interests of the child. JS-501568, 177 Ariz. at 577. 

¶18 Sufficient evidence shows that severance would be in the 

child’s best interests. At the time of the severance hearing, the child had 

been in care for approximately two years and was placed with her paternal

grandmother. The case manager testified that the child likes living with her 

grandmother, and calls her “Mom.” The child lives with her half-sister, who 

is also placed with Lydia’s paternal grandmother. Grandmotheris planning 

to adopt both children, and she has indicated a willingness to permit Father 

to have contact and attempt to develop a relationship with the child, even 

after severance of his rights. Finally, even if grandmother is unable to adopt 

the child, the case manager testified the child is otherwise adoptable. 

¶19 Furthermore, sufficient evidence supports a finding that 

failure to sever Father’s rights would harm the child. The superior court 

found that severance of Father’s parental rights was in the child’s best 

interests because “[t]he great weight of the trial testimony was in agreement 

that [Father] had much work to do on himself before there would be any 

likelihood that he would be a minimally adequate parent.” The child had 
FERNANDO G. v. DCS, L.G.

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6

been in care for approximately two years, and the DCS case manager 

testified that it would be detrimental for her to continue to linger in care, if 

DCS were to give Father more time to complete services. 

¶20 Regarding Father’s argument that the superior court failed to 

consider relevant facts, as the trier of fact, the superior court is entitled to 

determine the appropriate weight to give each fact. Jordan C. v. Ariz. Dep’t 

of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (The superior court “is in the 

best position to weigh the evidence, observe the parties, judge the 

credibility of witnesses, and resolve disputed facts.”) (citation omitted).

¶21 The superior court found that termination would be in the 

child’s best interests by a preponderance of the evidence. This finding was 

within the court’s discretion and is supported by credible evidence.

CONCLUSION

¶22 For the foregoing reasons, we affirm.