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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN K., MORGAN B., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, L.K., Appellees.

No. 1 CA-JV 22-0137 

Appeal from the Superior Court in Maricopa County

No. JD39171

The Honorable Michael D. Gordon, Judge

SPECIAL ACTION JURISDICTION ACCEPTED IN PART AND 

RELIEF DENIED;

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant Justin K.

Czop Law Firm, PLLC, Higley

By Steven Czop

Counsel for Appellant Morgan B.

Arizona Attorney General’s Office, Tucson

By Jennifer R. Blum

Counsel for Appellee Department of Child Safety

FILED 11-10-2022
JUSTIN K., MORGAN B. v. DCS, L.K.

Decision of the Court

2

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass

joined.

B A I L E Y, Judge:

¶1 Justin K. (“Father”) appeals the termination of his parental 

rights to L.K. (“the child”). He argues that the Department of Child Safety 

(“DCS”) did not provide adequate reunification services. Father and 

Morgan B. (“Mother”) both appeal the denial of her motion for change in 

physical custody. For the following reasons, we accept special action 

jurisdiction as to the custody motion, deny relief, and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother are the child’s biological parents and were

both incarcerated when the child was born in March 2020. DCS filed a 

dependency shortly after the child’s birth alleging Mother’s neglect due to

substance abuse, incarceration, failure to treat her mental health, and failure 

to provide for the child’s basic needs. DCS alleged the child was dependent 

as to Father based on the length of his incarceration and his failure to take 

any steps to establish paternity or seek custody or parenting time with the 

child.

¶3 When Mother pled no contest to the dependency allegations, 

the court found the child dependent as to her in May 2020 and adopted a 

family reunification case plan. Father contested the petition pending a 

paternity test. Following the paternity test, the court found Father to be the 

child’s biological father in February 2021. 

¶4 At a May 2021 hearing, the court changed the case plan to 

severance and adoption. In June 2021, DCS moved to terminate Mother and 

Father’s parental rights. DCS asserted Mother was neglecting to provide 

proper and effective parental care due to substance abuse and that the 

length of Mother’s felony incarceration deprived the child of a normal 

home. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (4). DCS also asserted

Father’s rights should be terminated due to the length of his felony 

incarceration. See A.R.S. § 8-533(B)(4). These grounds were later amended 
JUSTIN K., MORGAN B. v. DCS, L.K.

Decision of the Court

3

to allege fifteen-months’ time-in-care as to Mother. See A.R.S. § 8-

533(B)(8)(c). 

¶5 The court held a termination adjudication in October 2021, 

which Mother contested. Father pled no contest to the allegations in the 

petition but requested that, if the court did not terminate Mother’s rights, 

his rights not be terminated under the court’s best interests analysis.

¶6 While the matter was under advisement, and just after our 

Supreme Court filed its decision in Jessie D. v. Dep’t of Child Safety, 251 Ariz. 

574 (2021), Father moved to withdraw his no-contest plea and set a status 

conference about visitation. Father’s counsel noted on information and 

belief that DCS had made no effort to provide for visitation or to help Father 

form a bond with the child despite Father requesting visitation by video 

conference for that purpose. 

¶7 Around the same time, Mother moved for a change in 

physical custody. She noted that, even though DCS had conducted a home 

study for the child’s placement with a paternal relative, DCS’s 

representative testified that DCS did not plan to place the child with that 

relative.

¶8 The court granted Father’s motion to withdraw his plea and 

reopen evidence as it related to his rights. Further, the court granted DCS’s

December 2021 motion to order Father receive video visitation. The court 

also granted Mother’s subsequent motion to reopen evidence as to her 

rights based on her release from prison.

¶9 During a combined evidentiary hearing held over five days in 

April 2022, DCS caseworkers testified that DCS sent Father letters as early 

as April 2020, offering visitation and suggesting he send letters, pictures, or 

gifts, and participate in services offered by the Arizona Department of 

Corrections (“ADOC”). They testified that after Father requested visitation 

in October 2021, DCS worked with ADOC to set up visitation, despite

periods when ADOC stopped responding.

¶10 The court denied Mother’s motion to change custody and 

granted DCS’s motions to terminate parental rights in May 2022. The court 

found DCS provided sufficient reunification efforts to both parents

including visitation with Father beginning in January 2022. The court 

found DCS had proven the grounds of chronic substance abuse and fifteenmonths’ time-in-care as to Mother.
JUSTIN K., MORGAN B. v. DCS, L.K.

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¶11 As to Father, the court found that the length of his felony 

incarceration would preclude a normal home for the child. In particular, 

the court found the child was born after Father was incarcerated, Father had 

first requested visitation in October 2021, and therefore, the child had no 

pre-existing attachment and bond to him. The court called the prospect of 

Father creating and nurturing a bond while likely incarcerated until the 

child turns seven “daunting” and noted that Father’s presence “will be 

more of an intrusion and would detract from a normal home life,” given the 

placement’s distance from Yuma, where Father was incarcerated.

¶12 After finding that termination was in the child’s best interests, 

the court considered Mother’s motion to change the child’s placement to a 

paternal cousin. The court weighed the testimony of DCS’s child 

attachment expert about the disruption and damage of moving the child

from the only home the child had ever known. The court noted both the 

current and Mother’s proposed placement were considered kinship and 

that both ranked equally under A.R.S. § 8-514(B)(3). The court found 

Mother’s proposed placement would not benefit the child more than the 

current placement. The court also found that DCS had made adequate 

efforts to find kinship placements and that though Mother’s proposed 

placement was suitable, it came too late and would be unnecessarily 

disruptive to the child.

¶13 Mother and Father timely appealed. We have jurisdiction 

over Father’s appeal pursuant to Article 6, Section 9 of the Arizona 

Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1), as well 

as Arizona Rule of Procedure for the Juvenile Court 601(b)(2)(F).

DISCUSSION

I. We accept special action jurisdiction over the issue of custody, 

but the parents lack standing to challenge the child’s placement 

on appeal.

¶14 We have an independent duty to determine our jurisdiction 

over an appeal. Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 593, 

¶ 8 (App. 2007). Mother does not challenge any of the termination grounds 

on appeal; she argues only that the superior court erred by denying her 

motion to move the child to her proposed placement. Mother 

acknowledges that the proper mechanism for appealing an interlocutory 

order for placement in an ongoing dependency is by special action. See 

Jessicah C. v. Dep’t of Child Safety, 248 Ariz. 203, 207, ¶ 16 (App. 2020).
JUSTIN K., MORGAN B. v. DCS, L.K.

Decision of the Court

5

¶15 But Mother argues the practical effect of the superior court’s 

decision to hold a combined termination adjudication together with her 

motion for change of placement, and then to issue a decision on both 

simultaneously, rendered the denial of her motion to change placement a 

final appealable order. See Maricopa Cnty. Juv. Action No. JD-5312, 178 Ariz. 

372, 374 (App. 1994); see also Ariz. R. P. Juv. Ct. (“ARJCP”) 601(b)(2)(F)

(noting “final orders include . . . an order granting or denying a petition or 

motion for termination of parental rights.”).

¶16 We agree with Mother that the effect of combining the two 

orders had the practical effect of ending the case. Still the denial of her 

motion to change placement is unappealable. See Brionna J. v. Dep’t of Child 

Safety, 247 Ariz. 346, 349-50, ¶ 10 (App. 2019). Instead, the exercise of our 

special action jurisdiction is appropriate, even if the order denying her 

motion is interlocutory and unappealable. See id. at 350-51, ¶ 14. 

¶17 Even so, we hold that Mother lacks standing to appeal the

denial of her motion. The parents do not challenge either the termination 

grounds found by the superior court or its best interests findings (which are 

supported by the record) and as such waived those arguments. See Crystal

E. v. Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 1 (App. 2017) (by challenging 

only the best interests findings, parents “abandon[] and waive[] any 

challenge to the court’s finding of the statutory” grounds for termination). 

Once grounds for termination have been proven and the court finds by a 

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

interests, the biological parent loses all interest in the child’s post-severance 

placement. Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 370, ¶ 2 

(App. 2009). We find no merit in Mother’s argument that she has standing 

because she moved to change the child’s placement before the superior 

court severed her rights. In short, Mother simply lacks standing to 

challenge the child’s placement at this point, and to the extent Father joins

this argument in his brief, he too lacks standing for the same reason. Id.

Accordingly we cannot (and do not) consider this argument on appeal.

II. DCS made reasonable efforts to facilitate visits between Father 

and the child after Father belatedly requested them.

¶18 Father likewise fails to challenge – and waives any argument 

as to – the statutory grounds or best interests findings. See Crystal E., 241 

Ariz. at 577, ¶ 1. Father instead argues that DCS failed to prove it had 

engaged in diligent efforts to reunify him with the child. DCS has a 

constitutional obligation to undertake reasonable efforts to preserve the 

family. Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 22, ¶ 46 (App. 2019)
JUSTIN K., MORGAN B. v. DCS, L.K.

Decision of the Court

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(citing Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 333, ¶ 37 (App. 

2007)); see also Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). Incarceration 

alone does not render a parent unfit, and DCS must still provide services 

“designed to address an incarcerated parent’s desire to maintain a parentchild relationship,” while incarcerated. Jessie D., 251 Ariz. at 582, ¶ 21. But

this requirement arises only if “an incarcerated parent requests 

reunification services, such as visitation.” Id.

¶19 Father argues that because he had virtual visits with the child 

for only three months, DCS’s efforts were per se insufficient. But, as Father 

admits, DCS offered visits at the outset of the case – soon after the child was 

born in March 2020. Father first requested visits in October 2021, eight 

months after genetic testing established his paternity. DCS’s obligation to 

make reasonable efforts to provide services began when Father requested 

them. See id. We therefore reject his argument that DCS should have 

engaged in more strenuous efforts before he requested services.

¶20 Father also argues the three-month delay between requesting 

and receiving services shows that DCS’s efforts were ineffectual. But the 

record contains reasonable evidence that DCS diligently and repeatedly 

contacted ADOC to facilitate visitation and eventually secured a court 

order for video visits. To the extent Father invites us to reweigh the 

evidence of DCS’s efforts on appeal, we decline to do so. Alma S. v. Dep’t of 

Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018). Father has shown no error.

¶21 Reasonable evidence supported the findings of the superior 

court as to both parents and they have shown no error.

CONCLUSION

¶22 We accept special action jurisdiction in part, decline relief, 

and affirm.