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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEDRO R., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.R., and M.R., Appellees.

No. 1 CA-JV 16-0256

Appeal from the Superior Court in Maricopa County

No. JD27918

The Honorable John R. Ditsworth, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Cathleen E. Fuller

Counsel for Appellee, Department of Child Safety
PEDRO R. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.

N O R R I S, Judge:

¶1 This appeal arises out of an order entered by the juvenile 

court terminating Pedro R.’s parental rights to E.R. and M.R. under Arizona 

Revised Statutes (“A.R.S.”) section 8-533(B)(4) (Supp. 2015) (severance of 

parental rights based on length of felony sentence).

1 Pedro first argues the 

Department of Child Safety (“DCS”) presented insufficient evidence to 

terminate his parental rights based on his felony sentence. Reviewing the 

sufficiency of the evidence for an abuse of discretion, and viewing the 

evidence presented at the termination hearing in the light most favorable to 

upholding the juvenile court’s order, we reject this argument. See Mary Lou 

C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) 

(appellate court reviews sufficiency of the evidence in termination

proceeding for an abuse of discretion) (citation omitted); Ariz. Dep’t of Econ. 

Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010) 

(appellate court views facts in the light most favorable to upholding the 

juvenile court’s order) (citation omitted).

¶2 Second, Pedro argues, for the first time on appeal, the juvenile

court did not make the findings required by the Indian Child Welfare Act 

(“ICWA”). Although the juvenile court did not make the required ICWA

findings, we nonetheless review the juvenile court’s findings for 

fundamental error and find none. See Ruben M. v. Ariz. Dep’t of Econ. Sec.,

230 Ariz. 236, 239, ¶¶ 13-17, 282 P.3d 437, 440 (App. 2012) (reviewing 

evidence at termination hearing for fundamental error when respondent 

parent did not object in the juvenile court). 

 

1The Legislature has not amended the statutes cited in this 

memorandum decision since the Arizona Department of Economic Security 

(the precursor governmental entity to the Department of Child Safety) filed 

its original dependency petition. Thus, we cite to the current version of the 

statutes.
PEDRO R. v. DCS, et al.

Decision of the Court

3

DISCUSSION

I. Termination Based on Length of Felony Sentence

¶3 Under A.R.S. § 8-533(B)(4), the juvenile court may terminate

the parent-child relationship if “the parent is deprived of civil liberties due 

to the conviction of a felony . . . if the sentence of that parent is of such length 

that the child will be deprived of a normal home for a period of years.” In 

evaluating whether termination is warranted under A.R.S. § 8-533(B)(4), a 

court should consider all relevant factors, including:

(1) the length and strength of any parent-child 

relationship existing when incarceration begins, 

(2) the degree to which the parent-child 

relationship can be continued and nurtured 

during the incarceration, (3) the age of the child 

and the relationship between the child’s age and 

the likelihood that incarceration will deprive 

the child of a normal home, (4) the length of the 

sentence, (5) the availability of another parent to 

provide a normal home life, and (6) the effect of 

the deprivation of a parental presence on the 

child[ren] at issue.

Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29, 995 P.2d 682, 

687-88 (2000). No single factor compels or forbids severance. Christy C. v. 

Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15, 153 P.3d 1074, 1079 (App. 

2007).

¶4 Considering these factors here, the evidence presented to the 

juvenile court at the termination hearing supports its decision to terminate 

Pedro’s parental rights under A.R.S. § 8-533(B)(4). After police took Pedro 

into custody in December 2013 in Nebraska, Pedro pled guilty to two felony 

offenses, and the court sentenced Pedro to a prison term of eight to twelve

years. Pedro’s early release date is April 2019. 

¶5 When Pedro’s incarceration began in 2013, M.R. was almost 

six years old, and E.R. was over nine years old. Assuming Pedro will be 

released in April 2019, by then he will have been incarcerated for roughly 

half of both of the children’s lives. Additionally, regardless of when Pedro

is released, he will be released in Nebraska—not Arizona where the 

children currently live. And, DCS will not be able to place the children with 

Pedro in Nebraska until after officials assess whether the children may be 
PEDRO R. v. DCS, et al.

Decision of the Court

4

placed with Pedro pursuant to the Interstate Compact on the Placement of 

Children, A.R.S. § 8-548 (2014), a process that could take up to six months.

¶6 Before being incarcerated, Pedro saw E.R. and M.R.

infrequently—just two to three times per month. The children never stayed 

overnight with him at his apartment because he had roommates and he did 

not want his roommates to be around them. During his incarceration, both 

children were allowed to have telephone contact with Pedro, but both 

children indicated to the case manager, throughout the dependency 

proceedings, that they did not wish to have contact with him. Further, the 

case manager reported that Pedro had “not maintained consistent contact 

with the department.” 

¶7 The children’s mother’s parental rights have also been 

terminated. Thus, there is no other parent available to provide a normal 

home life. Finally, the children are currently placed with their grandfather 

and step-grandmother, and they are willing to adopt the children.

¶8 This evidence supports the juvenile court’s termination order, 

and we will not reweigh the evidence received at the termination hearing 

here. See Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 336, ¶ 14, 100 P.3d 

943, 947 (App. 2004) (appellate court will not reweigh the evidence or 

supersede the juvenile court’s assessment of the evidence for its own).

Accordingly, the juvenile court did not abuse its discretion in terminating 

Pedro’s parental rights under A.R.S. § 8-533(B)(4).

II. The Juvenile Court’s Findings Under ICWA

¶9 M.R. and E.R. are “Indian child[ren]” as defined by ICWA, 25 

U.S.C.A. §§ 1901 to -1963 (West 2016). See 25 U.S.C.A. § 1903(4) (Indian child 

is any unmarried person under the age of eighteen who is either a member 

of an Indian tribe or eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe). Accordingly, ICWA applies 

to this case. Under ICWA, the juvenile court must make two findings before 

terminating parental rights. Valerie M., v. Dep’t of Econ. Sec., 219 Ariz. 331, 

333, ¶ 3, 198 P.3d 1203, 1205 (2009). 

¶10 First, the court must find “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.” Id. (quoting 25 U.S.C.A. § 1912(d)). Here, the juvenile court 

found only that DCS “has made reasonable efforts to reunify the family.”

(Emphasis added). The court did not find that DCS made active efforts to 

provide remedial services and rehabilitative programs to the family.
PEDRO R. v. DCS, et al.

Decision of the Court

5

¶11 Second, there must be a “determination, supported by 

evidence beyond a reasonable doubt, including testimony of qualified 

expert witnesses, 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.” Valerie M., 219 Ariz. at 333, ¶ 3, 198 P.3d at 1205 (quoting 25 

U.S.C.A. § 1912(f)); Ariz. R.P. Juv. Ct. 66(c) (requiring the same finding). 

Here, the juvenile court did not make this finding.

¶12 DCS argues Pedro waived his right to challenge the 

sufficiency of the juvenile court’s findings under ICWA because he did not 

contest the findings in the juvenile court. When a party fails to object to 

alleged error in the trial court, however, we can review for fundamental 

error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 

607-08 (2005) (fundamental error applies when a party fails to object to 

alleged trial error; to establish fundamental error, a party must establish 

both that error exists and that the error caused that party prejudice). 

Although the doctrine of fundamental error is rarely used in civil cases, we 

nonetheless review for fundamental error here because ICWA “mandates 

certain procedural safeguards and substantive requirements for state court 

proceedings.” Valerie M., 219 Ariz. at 334, ¶ 12, 198 P.3d at 1206; see Ruben 

M., 230 Ariz. at 239, ¶ 15, 282 P.3d at 440 (fundamental error review 

appropriate in appeal challenging juvenile court’s factual findings).

¶13 Here, a qualified expert testified, without objection, that DCS 

has made active efforts to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the family. The expert also 

testified that if the children remained in Pedro’s custody, they would likely 

suffer serious emotional or physical damage. Pedro did not challenge the 

expert’s testimony, or present evidence to the contrary, and there is no 

contrary evidence in the record. Accordingly, Pedro cannot establish he was 

prejudiced by the juvenile court’s failure to make the findings required by 

ICWA.

CONCLUSION

¶14 For the foregoing reasons, we affirm the juvenile court’s order 

terminating Pedro’s parental rights to E.R. and M.R.