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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AUGUSTINE D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.D., TOHONO O’ODHAM 

NATION, Appellees.

No. 1 CA-JV 21-0295 

Appeal from the Superior Court in Maricopa County

No. JD36853

The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Emily M. Stokes

Counsel for Appellee Department of Child Safety

Law Office of Justin Fernstrom, Mesa

By Justin Fernstrom

Counsel for Appellee Tohono O’odham Nation

FILED 3-17-2022
AUGUSTINE D. v. DCS et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which 

Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

H O W E, Judge:

¶1 Augustine D. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to A.D., born April 2020. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the 

juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016). 

A.D. is an Indian child under the Indian Child Welfare Act (“ICWA”). See 

25 U.S.C. § 1903(4) (defining “Indian child”). Father and Syndi V.

(“Mother”) were never married and have three children in common; 

Mother has a fourth child from a different father. Father signed an 

acknowledgment of paternity for A.D. The parents are enrolled members 

of the Tohono O’odham Nation, and A.D. is eligible for enrollment.

¶3 The Department of Child Safety had been involved since 2018

after Mother gave birth to a child exposed to methamphetamine and 

marijuana. As a result, the Department removed the children from the 

home. At a team decision-making meeting, Father asked the Department 

whether he could be a responsible adult of the children, but he tested 

positive for methamphetamine in a rule-out drug test despite denying any 

substance abuse. The Department offered the parents family preservation 

services, parent-aide sessions, substance-abuse testing through Physician 

Services Inc. (“PSI”) and TASC Inc., substance-abuse treatment through 

TERROS, transportation services, attempts to communicate with the 

Nation, and visitation with the children. The parents were repeatedly 

reminded of their testing appointments, but Mother barely engaged, and 

Father did not engage at all. Because of their lack of participation, the 

referral at TERROS and the parent-aide service were closed unsuccessfully.

Both parents continually denied substance abuse and cited distance as a 

barrier to their engagement in drug testing.
AUGUSTINE D. v. DCS et al.

Decision of the Court

3

¶4 To address this barrier, the Department sought the Nation’s

advice and opinion. The Department and a tribal specialist arranged to 

meet with the parents to a create a service plan. Specifically, the plan 

included substance-abuse treatment at San Lucy Tribal Center, which was 

affiliated with the Nation and closer to the parents’ home. The parents were 

also offered scheduled drug testing through PSI or TASC three days per

week. Creating such a structured testing plan is not standard practice but

“used in only the most extreme circumstances.” Even though the parents

knew which days they would be testing and were repeatedly reminded of 

their appointments, they failed to show up.

¶5 In 2020, during the dependency of the other children, A.D.

was born substance exposed, removed from the home, and placed with a 

relative, also a member of the Nation. Around this time, Father tested 

positive again for methamphetamine. He maintained, however, that 

someone had tampered with the test and refused to engage in services. The 

Department then offered supervised visitation services for several months, 

but parents failed to make contact and the Department closed the service.

The Department later petitioned to have A.D. found dependent as to both 

parents based on neglect from their history of substance abuse. A few 

months after A.D.’s birth, the court found that he was dependent as to both 

parents, and the case plan was set for family reunification.

¶6 During this time, the Department maintained contact with the 

Nation. Visitation service began again, and the parents were assigned a case

aide to facilitate visitation. The Department again referred the parents for 

substance-abuse treatment at TERROS and Arizona Families F.I.R.S.T., 

substance testing through Averhealth, PSI, and TASC, and transportation 

services through three companies that later closed because of “excessive 

missed trips.” Mother participated sporadically in Averhealth, and Father 

failed to test. The Department also recommended that he engage in 

parenting classes in his community. He did not maintain communication 

with the Department, and the Department had trouble contacting him. He

claimed that his busy job prevented his engagement in services. When 

asked about his employment documentation, Father stated that he did not 

have to provide that information. Both parents continued to resist engaging

in services, but Mother continued inconsistent engagement in substanceabuse treatment at San Lucy Tribal Center. The parents claimed that they 

missed testing because of a lack of transportation. Nevertheless, they used 

transportation services for visits.

¶7 By March 2021, the case plan changed to severance and 

adoption, and the Department moved to terminate the parent-child 
AUGUSTINE D. v. DCS et al.

Decision of the Court

4

relationship of both parents. The court held a termination hearing, and the 

parents contested the termination. Father testified that his busy work 

schedule, lack of transportation, lack of communication with the Nation 

and the Department, and the Covid-19 pandemic all caused his failure to 

participate in services. He also testified that he had to work “eight months 

straight without a day off.” He noted, however, that he had started services 

at San Lucy Tribal Center.

¶8 A Department child safety specialist testified that the 

Department attempted to contact the parents by mailing service letters,

calling, sending text messages, and visiting the home to discuss the case.

She also testified that because issues arose with the parents’ transportation, 

the Department deviated from its standard practice and arranged an 

open-cab referral that followed the parents’ schedule to ensure that they 

attended services and visitation. She also testified that the Department 

provided all the required services and attempted to communicate with the 

Nation in implementing services for the family. She noted that although 

in-home visitation is better than visitation in the community, Mother’s use 

of methamphetamine created a safety concern that prevented visits from 

taking place at home. She also testified that the Department did not provide 

a parent-aide service after A.D.’s birth because the Department 

prematurely closed the previous parent-aide service for the other children 

for lack of participation. She explained that before recommending a new 

parent-aide, the parents needed to demonstrate “consistency and 

engagement” in services.

¶9 The tribal case manager testified that she believed active 

efforts were made to prevent the breakup of the family but that those efforts 

were unsuccessful. She noted that the parents never requested additional 

services, but she met with them twice to discuss their services and 

encourage them to participate. She added that if they had complied, more 

services might have been recommended. She acknowledged, however, that

tribal programs were shut down because of the Covid-19 pandemic but that 

some services were available virtually. The parents also could have

engaged in services off the reservation.

¶10 The court terminated Father’s and Mother’s parental rights to 

A.D. based on six and nine months’ time-in-care and chronic 

substance-abuse grounds. The court found that termination was in A.D.’s 

best interests and that continued custody of the parents would likely result 

in “serious emotional or physical damage” to A.D. The court also found 
AUGUSTINE D. v. DCS et al.

Decision of the Court

5

that the Department made active efforts to prevent the breakup of the 

Indian family under ICWA. Father and Mother timely appealed.1

DISCUSSION

¶11 Father argues that the State did not prove by clear and 

convincing evidence that the Department made active efforts to prevent the 

breakup of the family under ICWA. A juvenile court’s termination 

determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child

Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). Because the juvenile court 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), we will affirm a termination 

decision unless no reasonable evidence supports it, Xavier R. v. Joseph R., 

230 Ariz. 96, 100 ¶ 11 (App. 2012).

¶12 To terminate parental rights, the juvenile court must find the 

existence of at least one statutory ground under A.R.S. § 8–533 by clear and 

convincing evidence and must find that termination is in the child’s best 

interests by a preponderance of the evidence. A.R.S. § 8–537(B); Ariz. R.P. 

Juv. Ct. 66(C); Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 

2016). ICWA applies when an Indian child is the subject of a termination. 

See Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 416–17 (App. 2011).

Before terminating parental rights under ICWA, the Department must 

(1) prove beyond a reasonable doubt that “the continued custody of the 

child by the parent or Indian custodian is likely to result in serious 

emotional or physical damage to the child,” Ariz. R.P. Juv. Ct. 66(C); 25 

U.S.C. § 1912(f), and (2) prove by clear and convincing evidence that “active 

efforts have been made to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian family and that 

those efforts have proven unsuccessful,” 25 U.S.C. § 1912(d); Yvonne L., 227 

Ariz. at 421 (holding that the standard for proving active efforts is “clear 

and convincing”).

¶13 “Active efforts” means “affirmative, active, thorough, and 

timely efforts intended primarily to maintain or reunite an Indian child 

with his or her family.” 25 C.F.R. § 23.2. The parents must be assisted

“through the steps of a case plan and with accessing or developing the 

1 Mother’s counsel filed an affidavit pursuant to Arizona Rule of 

Procedure for the Juvenile Court 106(G) attesting that after reviewing the 

entire record on appeal, he found no non-frivolous issues to raise. Thus, 

even though she filed a notice of appeal, she never filed an opening brief.
AUGUSTINE D. v. DCS et al.

Decision of the Court

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resources necessary to satisfy the case plan.” Id. Active efforts “should be 

conducted in partnership with the Indian child and the Indian child’s 

parents . . . and Tribe.” Id. They should be “tailored to the facts and 

circumstances of the case.” Id. Although “active efforts” can be contrasted 

with “passive efforts,” they require more than a mere reunification plan.

Yvonne L., 227 Ariz. at 423 ¶ 34 n.17. But “neither ICWA nor Arizona law 

mandates that [the Department] provide every imaginable service or 

program designed to prevent the breakup of the Indian family before the 

court may find that ‘active efforts’ took place.” Id. at ¶ 34. Further, the 

Department cannot force parents to engage in services but must provide 

them with the “necessary ‘time and opportunity to participate in programs 

designed to help [them] become’ effective parents.” Id. (quoting Maricopa 

Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (finding that 

active efforts were centered on the mother’s needed services, when the 

Department arranged the services, and the extent that she participated in 

services).

¶14 Relevant examples of active efforts include (1) identifying 

appropriate services and actively assisting parents to obtain those services;

(2) inviting representatives of the child’s Tribe to provide the family with 

support and services; (3) implementing “all available and culturally 

appropriate family preservation strategies and facilitating the use of 

remedial and rehabilitative services provided by the child’s Tribe”;

(4) supporting visitation with parents “in the most natural setting possible”; 

(5) identifying community resources and assisting the parents in accessing 

them; (6) “[m]onitoring progress and participation in services”; and 

(7) considering alternative methods of addressing the parents’ needs where 

services are not available. 25 C.F.R. § 23.2.

¶15 Father only challenges the juvenile court’s active efforts 

finding. The Department argues that Father waived his right to challenge 

this issue on appeal because he did not raise it before the juvenile court. The 

Department also argues that even without considering waiver, evidence 

supports the juvenile court’s finding of active efforts. We need not reach the 

issue of waiver because reasonable evidence shows that the Department 

made affirmative, active, thorough, and timely efforts to provide remedial 

services and rehabilitative programs to prevent the breakup of the family. 

The record demonstrates that the Department offered family preservation 

services, case management services, substance-abuse testing and treatment, 

visitation services, transportation services, and foster care. A.D. was placed 

with a family member, who was also a member of the Nation, to help him 

preserve his Native American culture. The Department also offered tribal 

services after the parents expressed their wish to participate in 
AUGUSTINE D. v. DCS et al.

Decision of the Court

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on-reservation services. The Department actively attempted to 

communicate with the parents through phone calls, text messages, email, 

in-person meetings, and service letters. The Nation was also actively 

involved in those efforts. The tribal case manager testified that active efforts 

had been made to preserve the family. 

¶16 While Father argues that the Department should have been 

more accommodating to his busy work schedule, the record demonstrated 

otherwise. First, when the Department asked for documentation about his

employment, he refused to provide the information. The Department could 

have used the information to contact his employer to work through an 

appropriate schedule. Second, the Department and tribal case manager met 

with the parents to create a new service plan to fit their schedule and to 

advise them of their responsibilities. They attempted to accommodate 

services to the parents’ needs, including providing scheduled drug testing

three times per week,rather than the typical practice of random testing, and 

providing substance-abuse treatment closer to their home. The parents 

knew in advance when their testing would occur, and transportation was 

also provided. Third, evidence shows that Father chose not to engage in 

services. He did not maintain contact with the Department, insisted that his 

previous positive test results were tampered with, and believed that he was 

not at fault for the Department’s involvement. He did, however, attend 

visits. 

¶17 Father also argues that the Covid-19 pandemic prevented him 

from engaging in services and that active efforts required the Department 

to wait for tribal programs to reopen before seeking termination of parental 

rights. The tribal case manager testified that the parents could have 

participated virtually or through off-reservation facilities. They had an 

open-cab referral, which would have facilitated the drive to off-reservation 

services. Further, Mother participated in some services during the 

pandemic. Father also argues that the Department did not provide enough 

visitation or a parent aide. He adds that visitation should have occurred in 

Mother’s home. But the parents were offered visitation right after A.D. was 

taken into the Department’s care. They failed, however, to contact the 

supervised-visitation provider in the first few months of the dependency, 

and this service closed. They were later offered visitation again. Also, the 

Department child safety specialist testified that the parents’ previous

parent-aide closed because of their lack of participation and that they

would have been offered another parent-aide only upon “consistency and 

engagement” in services. She added that visitation could not take place at 

Mother’s home because her substance abuse created an unsafe 

environment. 
AUGUSTINE D. v. DCS et al.

Decision of the Court

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¶18 The record demonstrates that the parents had time and 

opportunity, even before A.D. was born, to participate in services. They 

failed to do so. The Department could not force the parents to engage in 

services. Father argues that the “active efforts” standard under ICWA is 

higher than the “reasonable efforts” standard under non-ICWA 

termination cases. Regardless of the standard, reasonable evidence

supports the juvenile court’s finding that the Department provided active 

efforts to prevent the breakup of the family, even though these efforts 

proved unsuccessful. 

CONCLUSION

¶19 For the foregoing reasons, we affirm.