NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JAMES W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.W., S.W., Appellees.

No. 1 CA-JV 14-0206

Appeal from the Superior Court in Maricopa County

No. JD23321

The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

John L. Popilik, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Erika Z. Alfred

Counsel for Appellees

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
JAMES W. v. DCS, et al.

Decision of the Court

2

G E M M I L L, Judge:

¶1 James W. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to his daughter, S.W. and son, J.W

(collectively “the children”). Father argues he was denied due process, the 

juvenile court abused its discretion by admitting certain evidence, and there 

was insufficient evidence to support the ruling. For the following reasons, 

we affirm.

¶2 Father is the biological parent of teenage daughter S.W. and 

teenage son, J.W. He is also the father of adult daughter, Samantha W., who 

reached adulthood during the pendency of the proceedings and is no longer 

a party in this action. Father had full custody of the children and they lived 

with him for 14 years, along with Father’s girlfriend, Lenita.

¶3 In March 2013, the children and Samantha were taken into 

custody by the Department of Child Safety (“DCS”)1 based upon 

allegations of physical abuse by Father that occurred in December 2012. 

The incident involved Father striking the children with a closed fist after 

they tried to intervene in a dispute between Father and Lenita.

¶4 In a report made following the incident, DCS listed 22 prior 

referrals to the department that included allegations of abuse by Father and 

Lenita. Father admitted to being an alcoholic who continues to drink and 

is unable to control his alcohol consumption.

¶5 While the children were in DCS custody, Father visited them 

and was asked to leave after 10 minutes because he became belligerent and 

accusatory towards the children. Father did not attend the next two 

scheduled visits. In April 2013, the court found the children dependent as 

to Father.

 

1 Child Protective Services (CPS) was formerly a division of the Arizona 

Department of Economic Security (ADES). Effective May 29, 2014, the 

Arizona legislature repealed the statutory authorization for creation of CPS 

and for ADES’s administration of child welfare and placement services 

under title 8, and the powers, duties, and purposes from those entities were 

transferred to the newly established DCS. See 2014 Ariz. Sess. Laws 2d 

Spec. Sess., ch. 1, §§ 6, 20, 54. Accordingly, DCS has been substituted for 

ADES in this matter. See ARCAP 27(b). Our references to DCS in this 

decision encompass both ADES and the former CPS, as appropriate.
JAMES W. v. DCS, et al.

Decision of the Court

3

¶6 Father’s case plan was, initially, family reunification. Father 

was required to attend substance abuse and domestic violence classes as 

well as submit urinalysis screening through TASC. Additional 

individualized reunification services included a psychiatric evaluation and 

counseling to address issues of alcoholism, child discipline, and anger.

¶7 In July 2013, DCS moved to stop visits between Father and the 

children. DCS asserted that, based on a history of physical and emotional 

abuse, visitation would not be in the children’s best interests and would be 

harmful. Father objected to the motion but the court granted it and 

discontinued visitation.

¶8 In February 2014, DCS moved to terminate Father’s parental 

rights on the statutory grounds of abuse, substance abuse, and nine months 

out-of-home placement found respectively in Arizona Revised Statute 

(“A.R.S.”) sections 8-533 (B)(2), -533 (B)(3), and -533(B)(8)(a). In the months 

preceding DCS’ motion to terminate, Father tested positive for alcohol three 

times and missed numerous urinalysis screenings. Father also failed to 

complete some of the required services including an anger management 

course and a psychiatric evaluation.

¶9 A contested severance hearing was held on July 11, 2014. The 

court terminated Father’s parental rights based on the three grounds

alleged. The court made a number of significant findings, including the 

following:

(1) “Father’s physical abuse of the children and refusal to 

participate in services offered to address this issue 

prevents him from being able to appropriately and safely 

parent his children.”

(2) “Father is unable to discharge his parental 

responsibilities” due to a history of alcohol abuse that is 

expected to “continue for a prolonged indeterminate 

period.”

(3) “The Department made reasonable efforts to provide 

Father with rehabilitative services through TERROS and 

TASC,” and 

(4) “Father has substantially neglected or willfully refused to 

remedy the circumstances that cause the children to be in 
JAMES W. v. DCS, et al.

Decision of the Court

4

an out-of-home placement.” The juvenile court also found 

that severance would be in the children’s best interests.

¶10 Father timely appeals the severance order. We have 

jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1). 

DISCUSSION

¶11 This court reviews a juvenile court’s termination order “in the 

light most favorable to sustaining the court’s decision and will affirm it 

‘unless we must say as a matter of law that no one could reasonably find 

the evidence [supporting statutory grounds for termination] to be clear and 

convincing.’“ Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 

P.3d 1263, 1266 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 

P.2d 786, 791 (1955)). 

¶12 Father presents three issues for review: (1) whether Father 

was denied due process by not receiving notice of one of the grounds for 

severance; (2) whether the juvenile court abused its discretion by admitting 

the report of a state-retained psychologist; (3) whether DCS failed to prove 

grounds for severance by clear and convincing evidence. 

I. Father was Not Deprived of Due Process

¶13 Father contends he was denied due process because DCS did 

not give him notice until July 11, 2014, the day of the hearing, that it was 

alleging nine month’s out-of-home placement as a ground for severance. 

Due process means providing “notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action 

and to inform them an opportunity to present their objections.” Maricopa 

Cnty. Juv. Action No. JS-734, 25 Ariz. App. 333, 339, 543 P.2d 454, 460 (App. 

1975) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 

(1950)). 

¶14 In its motion for termination of parent-child relationship filed 

in February 2014 - four months before the termination hearing - DCS 

alleged as a ground for severance that the children had been in an out-ofhome placement for nine months. DCS cited the out-of-home placement 

statute and stated that Father “has substantially neglected or willfully 

refused to remedy the circumstances that cause the children to be in an outof-home placement.” DCS therefore complied with the requirements of due 

process.
JAMES W. v. DCS, et al.

Decision of the Court

5

II. The Court did not Err in Admitting the Psychologist’s Report

¶15 Father contends that the juvenile court abused its discretion 

and violated his due process rights by admitting a report from a 

psychological evaluation even though the author, Dr. James Thal, Ph.D., 

was not at the hearing to be cross-examined. This court ordered 

supplemental briefing regarding the applicable statutes, rules, and 

common law principles regarding the admissibility of Dr. Thal’s evaluation 

report (“Thal report”). We have reviewed the parties’ supplemental 

briefing and the record. We apply an abuse of discretion standard when 

reviewing the juvenile court’s evidentiary rulings. Ruben M. v. Ariz. Dep’t 

of Econ. Sec., 230 Ariz. 236, 239, ¶ 13, 282 P.3d 437, 440 (App. 2012). We 

review de novo the interpretation and application of statutes and rules. 

Ariz. Dep’t of Econ. Sec. v. Ciana H., 191 Ariz. 339, 341, ¶ 11, 955 P.2d 977, 979 

(App. 1998).

¶16 Rule 44(B)(2)(e),2 through Rule 44(D)(2),3 impacts the 

admissibility of documentary evidence in a juvenile termination 

 

2 Rule 44(B)(2)(e) provides that a party shall provide:

A list of and copies of all exhibits which the party 

intends to use at trial. If a party objects to the admission 

of an exhibit, the party shall file a notice of objection 

and the specific grounds for each objection and 

provide a copy of the notice to all parties and the court 

within ten (10) days of receipt of the list of exhibits. 

Specific objections or grounds not identified in the 

notice of objection shall be deemed waived, unless 

otherwise ordered by the court. No exhibits shall be 

used at trial other than those disclosed in accordance 

with this rule, except for good cause shown.

3 Rule 44(D)(2), entitled “Disclosure Statement Prior to Termination 

Adjudication Hearing,” provides that:

Unless otherwise ordered by the court, the parties shall 

disclose to each other the information identified in 

subsection (B)(2)(a-e) of this rule, and any social study 

prepared pursuant to A.R.S. 8-536 or by order of the 

court within thirty (30) days after the initial hearing. 
JAMES W. v. DCS, et al.

Decision of the Court

6

proceeding. The rule states that parties must provide “[a] list of and copies 

of all exhibits which the party intends to use at trial.” Ariz. R.P. Juv. Ct. 

44(B)(2)(e). To challenge admissibility of a listed exhibit, a party must file 

a notice of objection within 10 days of receiving the disclosure list. Id. If 

the party opposing the evidence does not preserve objections by asserting 

them, then all objections to the admissibility of the evidence are deemed 

waived, unless otherwise ordered by the court. Id. 

¶17 DCS filed a disclosure statement before the hearing, listing 

witnesses and exhibits. Dr. Thal was listed as a witness by DCS and his 

report was generically listed along with other reports. DCS did not 

expressly promise that it would produce Dr. Thal as a witness, in the 

disclosure statement or otherwise, and Father did not inquire before the day 

of the hearing. Nor did Father file an objection within ten days of receiving 

the disclosure. The objection available to Father within the ten day period 

was that the report was hearsay. In accordance with the language of Rule 

44(B)(2)(e), Father waived his hearsay objection by not asserting it in timely 

fashion. 

¶18 Arizona Rule of Procedure for the Juvenile Court 45(D)4 is a 

limited exception to the hearsay rule. The rule provides that certain reports

will be admitted into evidence if the author of the report is present at the 

trial or hearing. Here, DCS did not need Rule 45(D) to support the 

admission of the report, because Father had already waived his hearsay 

objection by not asserting it within ten days after the listing of the report.

Although Rule 45(D) allows the admission of a report when the author is 

present, it does not provide that such a report is necessarily inadmissible 

just because the author is not present. If the hearsay objection is not timely

asserted, Rule 45(D) does not preclude admission. 

¶19 Our conclusion that no error occurred in admitting the Thal 

report is further supported by the following facts. On the day of the 

 

The provisions of subsection (B)(2)(e) shall govern 

admissibility of exhibits.

(Emphasis added.)

4 Rule 45(D) provides that “a report of any psychological . . . evaluation of 

any party or participant . . . shall be admitted into evidence if the report has 

been disclosed to the parties pursuant to 44(B)(1) and the author of the 

report is available for cross-examination.” 
JAMES W. v. DCS, et al.

Decision of the Court

7

hearing, Father objected to the admission of the Thal report because Dr. 

Thal was not there to testify. Father did not, however, ask for a brief 

continuance to allow Dr. Thal to be subpoenaed or for the court to have him 

testify telephonically. We expect most juvenile court judges would 

carefully consider such a request, if received, because of the importance of 

the issues involved and because the waiver aspect of Rule 44(B)(2)(e) does 

not apply if “otherwise ordered by the court.” But Father did not make 

such a request. Additionally, we note that the Thal report was generated in 

July 2013 and submitted to the court by the time of the status conference on 

September 10, 2013. The juvenile court had already read and presumably 

relied on the report in ruling, in September 2013, that the no visitation order 

would continue in effect. At the termination hearing in July 2014, the court 

did not explain why it was overruling Father’s objection, but it is clear from 

the record that the court had already reviewed the report in advance of the 

hearing. 

¶20 For all of these reasons, we conclude that the court committed 

no reversible error by admitting the Thal report at the severance hearing. 

III. Clear and Convincing Evidence Supported Severance

¶21 The juvenile court must meet two elements in order to sever

parental rights under state law. First, the juvenile court must find by clear 

and convincing evidence that the facts of the case fulfill at least one of the 

statutory grounds for termination that are enumerated in A.R.S. § 8-533(B). 

Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 176–77, ¶ 9, 319 P.3d 

236, 238–39 (App. 2014). Next, the juvenile court must find by a 

preponderance of the evidence that the termination would be in the child’s 

best interests. Id. Father does not challenge the court's finding that 

severance was in the children’s best interests, and we therefore do not 

address that issue.

¶22 Father’s rights were severed under the abuse ground of A.R.S. 

§ 8-533(B)(2), the substance abuse ground of A.R.S. § 8-533(B)(3), and the 

nine months out-of-home placement ground of A.R.S. § 8-533(B)(8)(a). “If 

clear and convincing evidence supports any one of the statutory grounds 

on which the juvenile court ordered severance, we need not address claims 

pertaining to the other grounds.” Jesus M. v. Ariz. Dep't of Econ. Sec., 203 

Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). Because sufficient evidence 

supports the juvenile court’s findings on the abuse ground under A.R.S. § 

8-533(B)(2) and the substance abuse ground under A.R.S. § 8-533(B)(3), we 
JAMES W. v. DCS, et al.

Decision of the Court

8

need not address the out-of-home placement ground under A.R.S. § 8-

533(B)(8)(a). 

¶23 First, we address Father’s contention that severance was not 

appropriate under any of the grounds because DCS did not provide 

adequate reunification services. Father asserts that because his visitation 

rights were terminated, DCS and the court failed to provide him adequate 

reunification services and an opportunity to repair his relationship with the 

children.

¶24 Under subsections (B)(2) and (B)(3) of A.R.S. § 8-533, DCS 

has no explicit duty to provide reunification services. See A.R.S. § 8-

533(B)(2)–(3); cf. A.R.S. § 8-533(B)(8) (indicating DCS has a statutory 

obligation to make a “diligent effort to provide appropriate reunification 

services” under the out-of-home placement grounds). This court has noted

that with severance in general, even when there is no statutory duty 

imposed “there may be a constitutional obligation on [DCS] to engage in 

reunification efforts.” James H. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 1, 2 ¶ 8, 

106 P.3d 327, 328 (App. 2005). Therefore, without deciding whether there 

is such a constitutional obligation, this court will consider Father’s 

arguments despite the absence of a statutory requirement. 

¶25 Reunification services are designed “to provide [the parent 

with] the time and opportunity to participate in programs designed to help 

[the parent] become an effective parent[.]” Maricopa Cnty. Juv. Action No. 

JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). DCS is not 

required to “provide every conceivable service or to ensure that a parent 

participates in each service it offers.” Id. 

¶26 The juvenile court found that DCS made a diligent effort to 

provide reunification services. This court agrees there is substantial and 

reasonable evidence to support the court’s findings. In granting the 

severance, the court found that Father was offered urinalysis testing 

through TASC, substance abuse assessment and treatment through 

TERROS, and other individual counseling services. The court found that 

Father “failed to successfully complete any of the services.” The court 

noted, however, that Father was unable to complete parent aide services, 

other than the individual portion, because the children refused to 

participate in visitation. Finally, the court found that Father failed to 

complete anger management classes offered to him. 
JAMES W. v. DCS, et al.

Decision of the Court

9

¶27 Furthermore, DCS is not obligated to “undertake 

rehabilitative measures that are futile.” Mary Ellen C., 193 Ariz. 185, 192, ¶ 

34, 971 P.2d 1046, 1053 (App. 1999). The court found that “Father’s physical 

abuse of the children and refusal to participate in services offered to address 

this issue prevents him from being able to appropriately and safely parent 

his children.” This court agrees with the juvenile court for the reasons 

already listed and because of the following. Father’s visitation with 

children, prior to termination of that right, was cancelled after ten minutes 

when Father became belligerent and accusatory towards the children. The 

children indicated they were “terrified of their Father” and not willing to 

have contact with him. Furthermore, on the day of the termination hearing, 

the children were present yet asked to be excused because they were 

“confronted outside of the courtroom by Father.” This court finds there 

was clear and convincing evidence that additional services would have 

been futile. See id. at 193, ¶ 39, 971 P.2d at 1054. 

¶28 Finally, there is clear and convincing evidence supporting the 

grounds for severance. Under A.R.S. § 8-533(B)(2), parental rights can be 

terminated when “the parent has neglected or willfully abused a child.” 

“Abuse” is defined in title 8, in pertinent part, as “the infliction or allowing 

of physical injury, impairment of bodily function or disfigurement[.]” 

A.R.S. § 8–201(2).

¶29 The record in this case contains sufficient evidence of abuse. 

Father testified that he punched his son in the nose and pulled his 

daughter’s hair, “using it to lift her off of the floor.” Father testified that he 

did not remember leaving bruises on the children or causing J.W. a black 

eye, however the court noted that Father claimed he had a “poor memory.”

¶30 There is also clear and convincing evidence that Father is 

unable to discharge his parental responsibilities due to a history of alcohol 

abuse and there are reasonable grounds to believe that the condition will 

continue for a prolonged indeterminate period. A.R.S. § 8-533(B)(3).

¶31 Father testified that he is “dry alcoholic” who had his first 

drink at age 13. He has known of his problems with alcohol since his first 

daughter was born nineteen years ago. Father failed to complete services 

through TERROS because he believes he can control his drinking and does 

not believe that he should abstain from consuming alcohol. While under 

the requirement to complete DCS services, Father tested positive for alcohol 

on three separate occasions. Father admitted to three relapses but stated he 
JAMES W. v. DCS, et al.

Decision of the Court

10

only drank one to two beers. Father also missed four required tests. The 

findings of the juvenile court are supported by substantial evidence.

CONCLUSION

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

terminating Father’s parental rights to J.W. and S.W.