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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEAN K., Appellant,

v.

JEREMY M., J.K., Appellees.

No. 1 CA-JV 16-0166

Appeal from the Superior Court in Maricopa County

No. JS517359 

The Honorable Rodrick J. Coffey, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix

By Thomas A. Vierling

Counsel for Appellant

Law Office of Anne M. Williams, P.C., Mesa

By Anne M. Williams

Counsel for Appellee Jeremy M.
JEAN K. v. JEREMY M., J.K.

Decision of the Court

2

MEMORANDUM DECISION

Judge Christopher T. Whitten1 delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

W H I T T E N, Judge:

¶1 Jean K. (“Mother”) appeals the juvenile court’s order 

terminating her parental rights to her daughter, J.K. (“Child”). Mother 

argues there is insufficient evidence to support the court’s best interests

finding. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Child, born in February 2006, is the biological child of Mother 

and Jeremy M. (“Father”). When Child was five years old, the Department 

of Child Safety (“DCS”) took custody of her and began a dependency 

action, which was later dismissed upon Father taking custody in December 

2011. Mother was incarcerated shortly after the dependency was initiated

for failure to pay court ordered child support arrears related to her other 

children. Mother was also convicted of possession of drug paraphernalia, 

was incarcerated at the time of the initial severance trial in 2015, and had a 

hold for failure to appear in a Glendale matter. Mother was in and out of 

custody from 2011 through 2015.

¶3 While on release in September 2012, Mother filed a petition to 

modify her parenting time. The court granted the petition, awarded Mother 

supervised parenting time, ordered her to participate in six months of 

urinalysis testing, and appointed a mental health expert to provide 

reunification therapy for Mother and Child.

¶4 Mother only provided one clean urinalysis and, although she 

sought two visits with Child in August 2013, the visits were cancelled at 

Mother’s request. Mother was in and out of custody multiple times from 

2011 through 2015.

 

1 The Honorable Christopher T. Whitten, Judge of the Arizona 

Superior Court, has been authorized to sit in this matter pursuant to Article 

VI, Section 3 of the Arizona Constitution.
JEAN K. v. JEREMY M., J.K.

Decision of the Court

3

¶5 Father filed a petition for termination of Mother’s parentchild relationship in June 2014, alleging that Mother abandoned Child by 

failing to have regular contact with Child for more than six months, and

that terminating Mother’s parental rights was in Child’s best interests.

¶6 Both Father and Child are enrolled members of the Navajo 

Nation. The juvenile court, however, concluded that the Indian Child 

Welfare Act (“ICWA”), 25 U.S.C. § 1903(1) (2012), did not apply after a 

contested severance hearing took place in April 2015. Severance was 

granted and Mother appealed the juvenile court’s order, arguing that the 

juvenile court’s finding that ICWA was inapplicable was “clearly 

erroneous.” The parents ultimately agreed and this court on appeal held 

that the termination proceeding was subject to ICWA. Therefore, the matter 

was remanded for a new termination proceeding to address ICWA.

¶7 A second contested severance hearing to address ICWA took 

place in February and March 2016. Father had testified at the April 2015 

contested severance hearing that Mother had essentially abandoned Child 

by not maintaining meaningful contact since August 2011. At the second 

hearing, Richard England, an Indian Child Welfare expert witness and 

licensed clinical social worker for the Navajo Nation, testified that 

severance was in Child’s best interests. England opined that it would be in 

Child’s best interests if Mother’s rights were terminated because Child was 

adoptable, and Mother’s continued relationship with Child would cause 

emotional harm to Child given Mother’s continued drug abuse and 

incarcerations. He also testified that termination would be beneficial 

because it would allow Child to be exposed to Indian culture, heritage, and 

upbringing, and it would positively impact Child’s development.

¶8 In April 2016, the juvenile court found by clear and 

convincing evidence that termination was appropriate pursuant to A.R.S. §

8-533(B)(1). The court also found termination was in Child’s best interests

under the statutory scheme and ICWA’s heightened standard. Mother has 

timely appealed the final signed judgment, and we have jurisdiction 

pursuant to A.R.S. § 8-235.

ISSUE

¶9 Mother challenges the juvenile court’s best interests findings,

arguing that the juvenile court erred as a matter of law in terminating her 

parental rights.
JEAN K. v. JEREMY M., J.K.

Decision of the Court

4

DISCUSSION

¶10 ICWA requires a state court to make two particular findings 

before terminating the parental rights of an Indian child. The court must 

be persuaded 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.” Valerie M.

v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3, 198 P.3d 1203, 1205 (2009)

(quoting 25 U.S.C. § 1912(d)). There must also be a determination that is 

supported by evidence beyond a reasonable doubt, including testimony of 

a qualified expert witness, “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.” Id. (quoting 25 U.S.C. § 1912(f)).

¶11 To justify termination of parental rights, the juvenile court 

must find at least one statutory ground is supported by clear and 

convincing evidence. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78, ¶ 

6, 117 P.3d 795, 797 (App. 2005).2 Additionally, the juvenile court must find 

by a preponderance of the evidence that the termination is in the best 

interests of the child. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, 

¶ 11, 257 P.3d 1162, 1165 (App. 2011); see A.R.S. § 8-533(B). As the trier of 

fact, 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, 100 P.3d 

943, 945 (App. 2004), and we will affirm a severance order unless it is clearly 

erroneous. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 

P.2d 682, 686 (2000). Accordingly, we will accept the juvenile court’s 

findings of fact “unless no reasonable evidence supports those findings.”

Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 

1997).

¶12 Once a juvenile court finds that a parent is unfit, the focus 

shifts to the child’s best interests and the court must balance the unfit 

parent’s diluted interest “against the independent and often adverse 

interests of the child in a safe and stable home life.” Demetrius L. v. Joshlynn 

F., 239 Ariz. 1, 4, ¶ 15, 365 P.3d 353, 356 (2016) (quoting Kent K. v. Bobby M., 

210 Ariz. 279, 286, ¶ 35, 110 P.3d 1013, 1020 (2005)). Here, because Mother 

does not challenge the finding of abandonment pursuant to A.R.S. § 8-

 

2 Mother has not challenged the juvenile court’s finding of 

abandonment. Therefore, she has conceded the accuracy of those findings 

and we do not address further the statutory ground for termination. Birtz 

v. Kinsvater, 87 Ariz. 385, 388, 351 P.2d 986, 987 (1960).
JEAN K. v. JEREMY M., J.K.

Decision of the Court

5

533(B)(1), the dispositive issue is whether there was sufficient evidence to 

support the court’s best interests finding.

¶13 Mother argues that the juvenile court erred because the court 

focused solely on adoptability to support its best interests finding. We 

disagree. Though the court did find that Child was adoptable and that 

adoption was in her best interests, it was not the sole factor on which the 

juvenile court relied. Id. at 3–5, ¶¶ 12–17, 365 P.3d at 355–57 (stating that 

depending on the circumstances, adoption can provide sufficient benefits 

to support a best interests finding in private severance actions).

¶14 First, the record reveals that Mother had no meaningful 

relationship with Child since 2011. Mother has been unable to provide 

stability for Child due to her repetitive periods of incarceration from 2011 

at least until the time of the first severance trial. During that time, Mother 

was unable to provide either emotional or financial support for Child. 

Upon release, Mother made contact with Father in an effort to see Child on 

only two occasions, but cancelled both of those visits. Mother was also 

homeless, and thereby unable to provide meaningful stability for Child.

¶15 Second, Mother has not remedied her chronic drug abuse 

issues. Mother was recently convicted of possession of drug paraphernalia

and she has had lifelong issues with drug abuse. Therefore, though an 

anticipated benefit of termination would be Child’s availability for 

adoption (Father’s current wife is prepared and willing to adopt), the 

potential benefit of adoption was not the exclusive best interests finding 

upon which Mother’s rights were terminated.

¶16 Mother next argues that the expert testimony offered was 

insufficient to satisfy ICWA standards. The record, however, does not

support Mother’s assertion. In this case, Indian Child Welfare expert 

witness Richard England testified that Mother was offered multiple 

services in order to avoid the family breakup. Mother was allowed 

supervised visitation with Child but only contacted Father twice about 

seeing Child. Mother was also required to participate and provide six 

months of clean urinalysis testing results, but only provided one such

result. Mother has not had physical contact with Child since 2011. Because 

Mother failed to remedy these conditions, the attempts to keep the Indian 

family together proved unsuccessful.

¶17 In addition, England testified that Mother’s continued contact 

with Child is likely to result in serious emotional damage. England 

interviewed Child prior to trial and testified that Child was well-adjusted 
JEAN K. v. JEREMY M., J.K.

Decision of the Court

6

in a stable home environment with Father, siblings, and stepmother, who 

Child considers her mother. Stepmother desires to adopt Child, which 

would further fortify Child’s psychological attachment to her stepmother, 

and strengthen Child’s sense of stability, thus alleviating Child’s stress.

England also testified that in the eyes of ICWA, adoptability is beneficial 

because social and religious customs of the Navajo Nation will be imparted

to Child through Father. England testified that Father would best facilitate 

tribal involvement, which, in turn, would help Child developmentally, 

socially, psychologically, and culturally.

¶18 “As long as there is some expert testimony in the record 

concerning a parent’s past conduct and current inability to care for the 

child, a court can infer the likelihood of future emotional or physical 

damage to the Indian child.” Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

566, 570, ¶ 13, 190 P.3d 180, 184 (2008).

¶19 After considering the evidence presented to the juvenile court 

in light of the best interests of the child, we conclude that reasonable 

evidence supports the juvenile court’s finding that Father has met his 

burden of showing that severance is in Child’s best interests both under the 

statutory burden of proof and ICWA.

CONCLUSION

¶20 We affirm the juvenile court’s order terminating Mother’s 

parental rights.