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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KURWIN M.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.M.,

NAVAJO NATION, 

Appellees.

No. 1 CA-JV 20-0219 

Appeal from the Superior Court in Maricopa County

No. JD30216

The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

David W. Bell Attorney at Law, Higley

By David W. Bell

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By Doriane F. Neaverth

Counsel for Appellee Department of Child Safety

Rothstein Donatelli, LLP, Tempe

By April Olson, Glennas'ba B. Augborne Arents

Counsel for Appellee Navajo Nation

FILED 1-7-2021
KURWIN M. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Kurwin M. ("Father") appeals the juvenile court's order 

adjudicating his child, S.M., dependent as to Father. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 "On review of an adjudication of dependency, we view the 

evidence in the light most favorable to sustaining the juvenile court's 

findings." Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App.

2005).

¶3 Father and Cari T. ("Mother") are the biological parents of 

S.M., born March 2012 ("Child").

1 The Child is an enrolled member of the 

Navajo Nation. The Indian Child Welfare Act, 25 U.S.C. § 1901, et seq.

("ICWA"), governs this proceeding.

¶4 Father has a long criminal history and an extensive history 

with the Department of Child Services ("DCS"). In 2012, DCS filed a 

dependency petition after receiving a substantiated report that Father hit 

another of his children, K.M., with a belt leaving welts on his forearm and 

back. Father did not engage in reunification services, but DCS reunited 

Mother and K.M., and dismissed the dependency.

¶5 In April 2015, DCS filed the first petition alleging the Child 

was dependent because Father abused substances, Father and Mother 

engaged in domestic violence, and Mother was incarcerated. This time, 

Father successfully participated in reunification services, and in February

2017, the juvenile court consolidated the dependency with a pending family 

court matter, granted Father "sole legal and physical custody" of the Child, 

and dismissed the dependency.

1 Mother is not a party to this appeal. 
KURWIN M. v. DCS, et al.

Decision of the Court

3

¶6 In December 2018, Father was arrested for criminal trespass 

and assault. Father and the Child were homeless after they had been 

evicted from their apartment and were allegedly breaking into residences, 

and "couch-surfing." At the time of his arrest, Father was impaired and had 

alcohol in his possession.

¶7 DCS again removed the Child from Father's custody and filed 

a second dependency petition on the grounds of substance abuse, neglect, 

domestic violence, and incarceration. DCS and the Navajo Nation worked 

to provide Father with reunification services after Father's release from jail.

However, Father failed to participate in services. After Father failed a drug 

test, he refused to submit to further tests. Father engaged in visitation but 

often verbally abused the case manager and parental aides. As visitation 

continued throughout 2019, the Child exhibited destructive behaviors, such 

as cutting up his bedsheets and setting fire to toys. The Child's counselor 

expressed concern that the Child could pose a risk of harm to himself and 

others and that the Child's fear and behaviors resulted from his belief that 

he may be returned to Father's care. As a result of these findings, DCS 

referred the Child for trauma therapy.

¶8 In April 2019, the Child expressed fear of Father and disclosed 

a history of abuse to his foster parents and therapist.

¶9 In May 2019, the juvenile court commenced the first 

dependency hearing. At the close of the hearing, the court granted Father 

a directed verdict. However, during the hearing, the case manager visited 

the Child at his foster placement and learned of Father's multiple acts of 

physical abuse. Based on this new information, DCS sought a stay of the 

court's order and moved to reopen the dependency and amend the petition 

to assert the grounds of abuse. The Child underwent a forensic physical 

medical exam with Dr. Kirsch. The exam's results were inconclusive,

although Dr. Kirsch opined that if six months had passed since the last 

abuse then she would not expect to find any physical evidence. 

¶10 The Child then underwent a forensic interview at Phoenix 

Children's Hospital ("PCH"), and the Child again disclosed the multiple 

acts of abuse by Father, including beatings with a belt and an extension 

cord. After the interview, the DCS investigator "substantiate[d]" the abuse 

allegations against Father. Law enforcement filed criminal child-abuse 

charges against Father, but the County Attorney's Office ultimately

declined to prosecute the matter.
KURWIN M. v. DCS, et al.

Decision of the Court

4

¶11 In June 2019, the juvenile court denied DCS's motions,

dismissed the dependency, and ordered the Child returned to Father. But 

after a status conference, the court vacated its order and authorized DCS to 

take the Child into temporary custody again. DCS then filed an amended 

dependency petition that included the new abuse allegations.

¶12 After a temporary custody hearing in July, the court found 

that, under ICWA, "active efforts were not made to prevent removal of the 

child," and ordered the Child returned to Father. When DCS attempted to 

return the Child to the apartment where Father lived, DCS discovered the 

Child would be sharing a couch with Father and a female occupant. During 

a limited walkthrough of the residence, DCS saw drug paraphernalia and 

Father admitted it was his. Further, the occupant leasing the apartment did 

not clear a criminal background check. DCS and the Child's Guardian ad 

Litem ("GAL") filed an emergency motion for reconsideration, which the 

court denied.

¶13 During August 2019, the Child remained in DCS custody but 

had three visits with Father. DCS attempted, again, to return the Child in 

September. The case manager visited Father's new residence and learned 

Father shared the home with a schizophrenic roommate who slept on a cot 

in the living room with Father and kept a large kitchen knife under his 

pillow. The home was dirty with little furniture, no air conditioning, and 

the case manager observed 8-10 medicine bottles on the floor. Father was 

not named on the lease and was expected to vacate the home within 14 

days. Based on these findings, DCS filed another emergency motion for 

custody, which the court granted.

¶14 In October 2019, the court commenced a second dependency 

hearing. The court heard testimony from Father, the Child's therapist,

Foster Mother, the case manager, Dr. Kirsch, a DCS investigator, the PCH 

interviewer, a Navajo Nation social worker, and two Phoenix police 

officers. The court again found that DCS had failed to make the active 

efforts required by ICWA but allowed DCS "additional time to meet the 

active efforts requirement." The court denied Father's motion for return of 

the Child, finding that he had failed to demonstrate that he had "stable 

housing" and that continued custody of the Child would likely result in 

serious emotional or physical damage to the Child. The court did not make 

dependency findings.

¶15 In the months following the hearing, Father refused to selfrefer for counseling and remained unwilling to engage in DCS-offered 

services, apart from visitation.
KURWIN M. v. DCS, et al.

Decision of the Court

5

¶16 DCS referred the family for therapeutic visits. However, 

Father missed several sessions and refused to engage in the counseling 

component of the sessions he attended. The counseling was designed to 

work on coping skills and anger management, but Father told the therapist 

that he did not "need to work on anything" and that he attended to "go 

through the motions."

¶17 On several occasions, Father verbally abused the case 

manager and case aides. The Child continued to express a fear of Father to 

both his foster placement and the case manager. The Child also indicated 

he feared for the case aide's safety because she had "no backup" when alone 

with Father. DCS brought in a male case-aide administrator to provide 

additional supervision during visits. Father was also aggressive and 

verbally abusive toward the case-aide administrator, and, during one visit,

threatened to "break" the case-aide. After that incident, DCS temporarily 

paused in-person visits due to the COVID-19 pandemic. The Child's 

behavior improved during the suspension, but regressed when visits 

resumed.

¶18 In April 2020, Father sought the Child's return. See Ariz. R.P.

Juv. Ct. 59. After an evidentiary hearing, the court denied the motion,

finding the Child's report of abuse and Father's displays of anger at the DCS 

employees made returning the Child to Father contrary to the Child's best 

interests.

¶19 At the May report and review hearing, the juvenile court 

determined DCS had made active efforts and that those efforts had been 

unsuccessful. In June, Dr. Laird conducted a psychological assessment and 

best-interest evaluation. After observing Father and the Child interact for 

one hour, Dr. Laird reported that Father exhibited no anger issues, 

appeared bonded with the Child, and it would be in the Child's best interest 

to be reunited with Father.

¶20 In July 2020, the court commenced a third dependency 

hearing. The court heard testimony from Dr. Laird, Father, the ICWA case 

manager, and the Navajo Nation social worker, who the parties stipulated 

as an expert witness under ICWA. The parties also stipulated to the 

juvenile court reviewing the transcripts from the October 2019 dependency 

hearing and the April 2020 evidentiary hearing.

¶21 After taking the matter under advisement, the court issued a 

twelve-page order adjudicating the Child dependent due to physical abuse, 

including "physical discipline with extension cords and belts and other 
KURWIN M. v. DCS, et al.

Decision of the Court

6

physical assaults." The court found that DCS had proven, "by clear and 

convincing evidence, including the testimony from the Qualified Expert 

Witness, that continued custody of the child by Father is likely to result in 

serious emotional or physical damage to the child" and that DCS made 

active efforts "to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family and those efforts have 

proven unsuccessful."

¶22 Father timely appealed and we have jurisdiction under A.R.S. 

§§ 8-235, 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶23 We review the juvenile court's dependency order for a clear

abuse of discretion and will affirm unless no reasonable evidence supports 

the court's findings. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12 

(App. 2015). The juvenile court "is in the best position to weigh the 

evidence, observe the parties, judge the credibility of the witnesses, and 

resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 

334, ¶ 4 (App. 2004).

I. Sufficiency of the Evidence.

¶24 Father asserts insufficient evidence supports the dependency

finding and the allegations of abuse were too old to prove Father currently 

poses an imminent risk of harm to the Child.

¶25 The statutory definition of a dependent child includes one 

"[i]n need of proper and effective parental care and control . . . who has no 

parent . . . willing to exercise or capable of exercising such care and control,"

as well as one whose "home is unfit by reason of abuse . . . ." A.R.S. § 8-

201(15)(a)(i), (iii). "Abuse" includes "the infliction . . . of physical injury." 

A.R.S. § 8-201(2). Additionally, ICWA requires clear and convincing 

evidence, "including testimony of qualified expert witnesses, that the

continued custody of the child by the parent . . . is likely to result in serious 

emotional or physical damage to the child." 25 U.S.C. § 1912(e).

¶26 The juvenile court found "there is clear and convincing

evidence that Father had physically abused the Child in the past and Father 

has failed to take steps to mitigate that danger." The record evidence 

supports this finding. The court heard testimony that the Child first 

reported the abuse in April 2019. The Child continued to express fear of 

Father. Father refused to engage in services to mitigate these concerns. The 

evidence further supports the court's finding that Father's "heated conflicts"
KURWIN M. v. DCS, et al.

Decision of the Court

7

with DCS employees in front of the Child raised "serious concerns about 

Father's ability to manage his anger." The court found the Child was 

"justifiably afraid of Father's angry outbursts and actions." 

¶27 Father argues that, even if true, the allegations of abuse are 

too old to support a dependency finding. See Francine C. v. Dep't of Child 

Safety, 249 Ariz. 289, 299, ¶ 28 (App. 2020) ("A child may be dependent 

when a parent is currently unwilling or unable to protect the child from 

abuse or neglect."). Here, although the record contains no evidence that 

Father abused the Child in the past two years, Father failed to complete 

services, acted with hostility toward DCS employees, and caused the Child 

to fear being alone with Father. Thus, the unresolved threat remains. See 

Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 51, ¶ 16 (App. 2016) (holding 

that the condition causing the dependency need not be "continuous or 

actively occurring . . . the substantiated and unresolved threat is sufficient").

¶28 Finally, Father argues the court should have given more 

credence to Dr. Laird than the ICWA case manager. Although Dr. Laird 

testified she believed there was no substantial risk of harm to the Child, the 

court was not required to credit her testimony over the case manager and 

the Navajo Nation social worker. On appeal, we do not reweigh the 

evidence. See Oscar O., 209 Ariz. at 334, ¶ 4.

II. Active Efforts.

¶29 ICWA also requires that DCS demonstrate "that active efforts 

have been made to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family and that these efforts 

have proved unsuccessful." 25 U.S.C. § 1912(d); accord Ariz. R.P. Juv. Ct.

55(C). DCS is not required to provide every imaginable service to show that 

active efforts took place but must provide parents with the necessary "time 

and opportunity to participate in programs designed to help [them] 

become" effective parents. Maricopa Cnty. Juv. Action No. JS-501904, 180 

Ariz. 348, 353 (App. 1994).

¶30 As an initial matter, DCS asserts Father waived the issue by 

not arguing it at the juvenile court. We disagree. Father contested DCS's 

active efforts in his April 2020 motion to return the Child, and his prehearing disclosure statement for the third dependency hearing. Although 

Father did not address active efforts in his closing arguments at the 

dependency hearing, his counsel addressed it in her opening statement and

cross-examined DCS's witnesses on its efforts and services. On this record,

we do not find the issue waived. 
KURWIN M. v. DCS, et al.

Decision of the Court

8

¶31 Father argues the ICWA case manager lacked knowledge 

about the case and thus failed to undertake active efforts. DCS transferred 

the case to the ICWA case manager in January 2020. She testified that she 

reviewed the file and familiarized herself with the case. Both the ICWA 

case manager and the Navajo Nation social worker testified to the active 

efforts undertaken by DCS. We defer to the juvenile court's determination 

of witnesses' credibility. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 

1998). 

¶32 After reviewing the record, we find that reasonable evidence 

supports the juvenile court's active-efforts finding. In addition to the 

services provided before the October 2019 dependency hearing, DCS and

Father participated in a psychological consultation to identify needed 

services. DCS provided Father with a parent aide, but Father refused to 

participate in any skill sessions. DCS referred Father for therapeutic 

visitation, but Father "advised the therapist that they [did] not need to work 

on anything." Father also refused to submit to drug testing or substanceabuse services. In January 2020, DCS attempted to refer Father for 

individual counseling by phone, but Father hung up on them. Father later 

claimed he would self-refer to counseling and anger management and DCS 

agreed to provide transportation services, but Father never self-referred.

The record evidence shows DCS made active efforts even though it "cannot 

force a parent to participate in recommended services." Yvonne L. v. Ariz. 

Dep't of Econ. Sec., 227 Ariz. 415, 423, ¶ 34 (App. 2011); see Maricopa Cnty.

Juv. Action No. JS-8287, 171 Ariz. 104, 113 (App. 1991) (holding that the 

record supported the court's active efforts finding because "rehabilitative 

programs repeatedly were offered . . . yet . . . [the mother] did not take 

advantage of the programs").

CONCLUSION

¶33 For the foregoing reasons, we affirm.