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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ZACHARY W., Appellant,

v.

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

No. 1 CA-JV 17-0509

Appeal from the Superior Court in Maricopa County

No. JD528301

The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Cathleen E. Fuller

Counsel for Appellee Department of Child Safety

FILED 5-29-2018
ZACHARY W. v. DCS, M.W.

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

C A T T A N I, Judge:

¶1 Zachary W. (“Father”) appeals the superior court’s order 

terminating his parental rights to his daughter, M.W. For reasons that 

follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father was incarcerated beginning in March 2013, when M.W. 

was less than two years old. While he was incarcerated, the Department of 

Child Safety (“DCS”) removed M.W. from her mother’s home, asserting

that M.W.’s mother was abusing substances and physically abusing and 

neglecting M.W.’s sibling.1 DCS filed a petition alleging M.W. was 

dependent as to Father because, as a result of his incarceration, he was 

unable to provide for M.W.’s basic needs. The superior court adjudicated 

M.W. dependent as to Father in April 2015.

¶3 DCS offered Father substance abuse testing, parent-aide

services, supervised visitations, and family counseling sessions when he 

was released from prison in June 2016. Father was not recommended for

substance abuse treatment, and at all relevant times he submitted to 

required drug testing. Father had only one positive test for marijuana.

¶4 Father attended only one family counseling session despite 

DCS advising him that it was important to help repair his relationship with 

M.W. Father initially attended supervised visits, and the results were 

positive. But he stopped attending after only a few months, and DCS closed 

out his supervised visitation services based on “lack of contact.” In March 

2017, the superior court ordered DCS to refer Father for parent-aide

services, but those services were also closed out for “lack of contact.” 

¶5 In March 2017, DCS moved to terminate Father’s parental 

rights on grounds of abandonment and 9 and 15 months’ time in care. The 

 

1 The superior court also terminated M.W.’s mother’s parental rights, 

but she is not a party to this appeal.
ZACHARY W. v. DCS, M.W.

Decision of the Court

3

superior court granted DCS’s motion, terminating Father’s parental rights

on all grounds. Father timely appealed, and we have jurisdiction under 

Arizona Revised Statutes (“A.R.S.”) § 8-235(A).

DISCUSSION

¶6 The superior court is authorized to terminate a parent–child 

relationship if clear and convincing evidence establishes at least one 

statutory ground for severance, and a preponderance of the evidence shows 

severance to be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v. 

Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Father challenges only the grounds 

for severance; he does not challenge the superior court’s best interests 

finding. We review a severance ruling for an abuse of discretion, deferring 

to the superior court’s credibility determinations and factual findings. 

Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

¶7 Under A.R.S. § 8-533(B)(8)(c), the superior court may 

terminate parental rights based on 15 months’ time in care if: (1) the child 

has been in an out-of-home placement for at least 15 months, (2) “[DCS] has 

made a diligent effort to provide appropriate reunification services,” (3) 

“the parent has been unable to remedy the circumstances” necessitating the 

out-of-home placement, and (4) “there is a substantial likelihood that the 

parent will not be capable of exercising proper and effective parental care 

and control in the near future.” The relevant circumstances are those 

existing at the time of the severance. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 

Ariz. 86, 96 n.14, ¶ 31 (App. 2009).

¶8 Father argues that the superior court erred by finding that he 

had not remedied the circumstances necessitating the out-of-home 

placement and that he would not be capable of exercising proper parental 

care in the near future. But Father’s incarceration resulted in his absence 

from M.W.’s life from a very young age. Accordingly, DCS appropriately 

urged his participation in services to develop a relationship with M.W. 

Nevertheless, Father stopped attending supervised visitation within 

months of his release from prison, he attended only one session of family 

counseling, and he did not engage in parent-aide services.

¶9 Father asserts that his accomplishments while incarcerated,

his sobriety, and positive reports from his few visitations sufficiently 

demonstrate that he remedied the circumstances causing the out-of-home 

placement and can safely and effectively parent. Although the superior 

court acknowledged Father’s completion of parenting classes while 

incarcerated and his compliance with the terms of his probation, the court 
ZACHARY W. v. DCS, M.W.

Decision of the Court

4

reasonably concluded that those factors were outweighed by Father’s lack 

of meaningful participation in reunification services. We will not reweigh 

the evidence on review, and we hold that sufficient evidence supports the 

superior court’s conclusion. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 

278, 282, ¶ 12 (App. 2002).

¶10 Accordingly, the superior court did not abuse its discretion 

by finding that Father had not remedied the circumstances underlying the

out-of-home placement and that there was a substantial likelihood that he

would not be capable of exercising proper and effective parental care and 

control in the near future. Because we affirm the severance based on 15 

months’ time in care, we need not address the alternative grounds found 

by the court. Id. at 280, ¶ 3.

CONCLUSION

¶11 For the foregoing reasons, we affirm.