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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MALAY'JA D.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, Z.B.,

Appellees.

No. 1 CA-JV 22-0134 

Appeal from the Superior Court in Maricopa County

No. JD40045

The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa

By Suzanne W. Sanchez

Counsel for Appellant

Arizona Attorney General′s Office, Tucson

By Michelle R. Nimmo

Counsel for Appellee

FILED 11-17-2022
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

M O R S E, Judge:

¶1 Malay'ja D. ("Mother") appeals from the juvenile court's order 

terminating her parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Zerion B. ("Father") are the biological parents of 

Z.B., who was born in May 2020. DCS became involved with the family

because both Z.B. and Mother tested positive for THC at the time of Z.B.'s

birth.

¶3 Mother admitted to smoking marijuana throughout the 

pregnancy. Father acknowledged that he knew about the marijuana use 

but did not intervene. Mother also disclosed that she suffers from severe 

anxiety, and Z.B.'s paternal grandmother ("Grandmother") indicated that 

Mother may also suffer from bipolar disorder. 

¶4 In October 2020, DCS filed a dependency petition based on

Mother's substance abuse and mental-health issues. But DCS did not 

remove Z.B. from the home at that time. 

¶5 Two months later, Mother and Father got into a physical fight. 

Grandmother called the police and took Z.B. to stay with his aunt. Mother 

and Father were both arrested. Following the incident, DCS removed Z.B. 

from his parents' custody and placed him in Grandmother's care for the 

remainder of the dependency. 

¶6 Mother did not contest the dependency petition, and Z.B. was 

adjudicated dependent in January 2021. At that time, DCS indicated that 

reunification would require the parents to: (1) establish a safe and stable 

home; (2) abstain from abusing illegal substances or prescription drugs; and 

(3) maintain a home environment that is free from domestic violence.

¶7 Over the course of the dependency, DCS provided Mother 

with substance-abuse assessments and referrals for supervised visitation, 
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

3

parent-aide services, and substance-abuse testing and treatment. During

Mother's initial substance-abuse assessment, providers referred her for 

additional domestic-violence counseling. 

¶8 Mother did not participate in the required substance-abuse 

treatment, she consistently avoided substance-abuse testing, and tested 

positive for THC when she did participate. Mother repeatedly cancelled 

parent-aide sessions and supervised visits to the point she had no 

supervised visits with Z.B. in 2021. Mother also failed to act on the referral 

for domestic-violence counseling. 

¶9 In June 2021, Mother unsuccessfully petitioned the court to 

eliminate the requirement for substance-abuse testing and treatment, and 

parent-aide services. 

¶10 Later that month, without permission, Mother took Z.B. from 

Grandmother and did not return him until police intervened. Two months 

later, she again took Z.B. without permission while he was on vacation with 

Grandmother in Pennsylvania. This time, Mother did not return the child, 

but police in Pennsylvania eventually located her, retrieved Z.B., and 

arrested her and Father for kidnapping. Pennsylvania authorities 

incarcerated Mother for three months. She was released, but the record is 

not clear on the ultimate resolution of the charges against Mother. 

¶11 After her release, Mother still failed to participate in the 

available services. In December 2021, DCS moved for termination under

the nine-month time-in-care ground.

¶12 In April 2022, the juvenile court conducted a termination trial 

and, in May 2022, issued an order terminating Mother's parental rights. The 

court found that DCS failed to provide adequate services to address the 

domestic-violence concerns and declined to consider domestic violence as 

a circumstance causing the out-of-home placement. However, the court 

found DCS had provided diligent efforts to address Mother's substanceabuse and mental-health issues. 

¶13 The juvenile court also found that termination would be in 

Z.B.'s best interests because: (1) Grandmother was willing and able to adopt

him; (2) adoption would provide him with the added benefit of

permanency and stability; and (3) placement with Grandmother would

allow him to maintain his relationships with other family members.

¶14 Mother timely appealed the termination order. We have 

jurisdiction under A.R.S. §§ 8-235 and 12-120.21(A).
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

4

DISCUSSION

¶15 Mother argues that the juvenile court erred in finding that 

DCS met its diligent efforts burden under the time-in-care ground. She also 

claims the record below was insufficient to support a finding that 

termination of parental rights was in Z.B.'s best interests. We disagree.

¶16 Parents possess a fundamental right in the custody and 

control of their children, but that right is not absolute. Michael J. v. Ariz. 

Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000). Termination of 

parental rights is not favored and "generally should be considered only as 

a last resort." In re Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 4 

(1990).

¶17 This court views the evidence and reasonable inferences to be 

drawn from it in the light most favorable to affirming the juvenile court's 

order. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 

2010). We review the juvenile court's termination decision for an abuse of 

discretion and will affirm if reasonable evidence supports the court's 

findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 

2004). But we review de novo "legal issues requiring the interpretation and 

application of § 8-533." Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 580, ¶ 

10 (2021) (quoting Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 12 

(App. 2014)).

I. Diligent Efforts.

¶18 Mother claims that DCS failed to prove diligent efforts 

because it did not provide her with domestic-violence services. 

¶19 To pursue termination under the time-in-care ground, DCS 

must make diligent efforts to provide parents with appropriate 

reunification services. A.R.S. § 8-533(B)(8). What constitutes a diligent 

effort will vary by case, but DCS must – at the least – provide services that 

have a reasonable prospect of success in remedying the circumstances 

causing the child's out-of-home placement. Donald W. v. Dep't of Child 

Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019). DCS is not required to "provide 

every conceivable service" or to "undertake rehabilitative measures that are 

futile," but it must "'undertake measures with a reasonable prospect of 

success' in reuniting the family." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 

Ariz. 86, 94, ¶ 20 (App. 2009) (quoting Mary Ellen C. v. Ariz. Dep't of Econ. 

Sec., 193 Ariz. 185, 192, ¶¶ 34, 37 (App. 1999)).
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

5

¶20 In this case, the juvenile court found that DCS failed to 

provide adequate services to remedy Mother's issues with domestic 

violence. Accordingly, it discounted domestic violence as a circumstance 

causing the out-of-home placement and found that termination was 

appropriate given the other issues that Mother had refused to remedy. If

termination was appropriate without consideration of the domestic 

violence, then the court did not abuse its discretion when it implicitly found 

that providing domestic-violence services was futile because they would 

not have reunited the family. Cf. id. (noting that measures are not futile if 

they have "'a reasonable prospect of success' in reuniting the family"). 

Mother does not challenge the court's findings related to the other 

circumstances causing the out-of-home placement.

¶21 Instead, Mother argues that the juvenile court can only 

determine futility through the process contained in A.R.S. § 8-846 and Rule 

57. We have previously rejected this argument. See Christina G. v. Ariz.

Dep't of Econ. Sec., 227 Ariz. 231, 236, ¶ 21 (App. 2011) (finding that failure

to follow § 8-846 and Rule 57 did not entitle a mother to reversal of the

juvenile court's termination order); see also Vanessa H. v. Ariz. Dep't of Econ.

Sec., 215 Ariz. 252, 256, ¶ 20 (App. 2007) (finding that reunification services

on behalf of the mother would have been futile without considering either

provision). While the purpose behind these two provisions "is to encourage

[DCS] to seek a determination on futility when it appears that reunification

services will no longer assist the parent," their language does not suggest

"that the juvenile court is prohibited from making a determination after the

severance hearing that additional services would have been futile."

Christina G., 227 Ariz. at 237, ¶ 25.

¶22 If DCS does not follow the § 8-846 procedure, it must prove 

by clear and convincing evidence at trial that additional rehabilitative 

services would have been futile. Mary Ellen C., 193 Ariz. at 193, ¶ 42 (App. 

1999). Reasonable evidence supports the juvenile court's finding that DCS 

met its burden. The juvenile court did not abuse its discretion.

II. Best Interests of the Child.

¶23 After finding clear and convincing evidence establishing one 

of the statutory grounds for termination, the court must determine by 

preponderance of the evidence that termination is in the child's best 

interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). 

At this stage, "the juvenile court's primary concern . . . is the 'child's interest 

in stability and security.'" Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 

478, ¶ 31 (2022) (quoting Alma S., 245 Ariz. at 150, ¶ 12). "[T]ermination is 
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

6

in the child's best interests if either: (1) the child will benefit from severance; 

or (2) the child will be harmed if severance is denied." Alma S., 245 Ariz. at 

150, ¶ 13.

¶24 Citing Timothy B., Mother argues that the court's best-interests

finding was insufficient because the court provided no case-specific 

evidence that adoption benefitted the child more than permanent 

guardianship. 252 Ariz. at 478-79, ¶ 34. Her argument misinterprets that 

case. 

¶25 In Timothy B., the supreme court recognized that a child's 

interest in termination may be "a relevant factor under the guardianship 

statute" and remanded to the juvenile court to consider whether permanent 

guardianship would be appropriate under the length-of-sentence ground 

for termination. Id. But a child's interest in termination is relevant to the 

guardianship determination because the court may not establish a 

permanent guardianship unless "[t]he likelihood that the child would be 

adopted is remote or termination of parental rights would not be in the 

child's best interests." A.R.S. § 8-871(A)(4). There is no inverse requirement 

in the termination statute. See A.R.S. § 8-533. 

¶26 In conducting its best-interests inquiry, the court must still 

"consider the totality of the circumstances existing at the time of the 

severance determination." Alma S., 245 Ariz. at 150-51, ¶ 13. In some cases, 

the totality of the circumstances will include a child's interest in 

maintaining the parental relationship through permanent guardianship. 

See Timothy B., 252 Ariz. at 478, ¶ 31 (noting that courts should consider 

whether a child's interests "are served by termination or maintenance of the 

parent-child relationship"); see also Santosky v. Kramer, 455 U.S. 745, 760

(1982) (recognizing a child's interest in preserving the natural relationship 

with their parents). But that interest is diminished "once a determination 

of unfitness has been made," Alma S., 245 Ariz. at 151, ¶ 15, and can be 

overcome by other factors favoring termination, Dominique M. v. Dep't of 

Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016). The juvenile court 

properly considered guardianship before finding that Z.B.'s best interests 

favored termination. Accordingly, we affirm.
MALAY'JA D. v. DCS, Z.B.

Decision of the Court

7

CONCLUSION

¶27 For the above stated reasons, we affirm the decision of the 

juvenile court.