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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS R., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.R., L.R., Appellees.

No. 1 CA-JV 16-0372

Appeal from the Superior Court in Maricopa County

No. JD23651

The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Dawn Rachelle Williams

Counsel for Appellee

Denise L. Carroll, Scottsdale

Counsel for Appellant
CARLOS R. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.

B E E N E, Judge:

¶1 Carlos R. (“Father”) appeals the termination of his parental 

rights to his children, M.R. and L.R. (“Children”). For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Several months after the Children were born, Father 

kidnapped and assaulted Mother. Police attempted to arrest Father, but he 

fled to New Mexico. The Department of Child Safety (“DCS”) filed a 

dependency petition, and placed the Children with their maternal 

grandparents. Father was eventually apprehended in New Mexico and 

extradited to Arizona, where he pleaded guilty to kidnapping and 

aggravated assault, and was sentenced to 10.5 years in prison. After the

Children were found dependent, DCS moved for termination of Father’s 

parental rights pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-

533(B)(1) (2017), abandonment, and 8-533(B)(4), length of felony 

incarceration.

1

¶3 During the first day of the termination hearing, Father 

appeared telephonically from the Maricopa County Jail.2 At the hearing, 

Father called a witness from the Navajo Nation to testify that DCS did not 

comply with the Indian Child Welfare Act (“ICWA”).3 Specifically, Father’s 

witness testified that DCS failed to make active efforts to prevent the 

 

1 Absent material revisions after the relevant date, we cite a statute’s 

current version.

2 The superior court issued an order for Father to be transported from 

the Department of Corrections; however, Father was not transported from 

jail to court. 

3 Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (1978).
CARLOS R. v. DCS, et al.

Decision of the Court

3

breakup of the Indian family and that DCS should have assisted Father with 

obtaining services while in prison. The superior court set an additional 

hearing to determine whether DCS complied with ICWA. The superior 

court ordered Father to appear telephonically for the hearing.

¶4 At the subsequent hearing, Father did not appear 

telephonically from prison, but was represented by counsel, who 

participated fully in the proceeding. DCS presented an ICWA expert who 

testified that DCS made active efforts to prevent the breakup of the Indian 

family.

¶5 The superior court determined that DCS complied with 

ICWA and terminated Father’s parental rights based on abandonment and 

length of felony incarceration.

4 Father timely appealed the termination of 

his parental rights. We have jurisdiction pursuant to A.R.S. §§ 12-120.21

(2017), 12-2101 (2017) and 8-235 (2017).

DISCUSSION

¶6 Custody of one’s children is a fundamental, but not absolute, 

right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). 

The superior court may terminate a parent’s rights upon clear and 

convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B), 

and upon finding by a preponderance of the evidence that termination is in 

the best interests of the child. Id. at 248-49, ¶ 12.

¶7 Father does not challenge the superior court’s determination 

that adequate statutory grounds for termination existed or termination was 

in the Children’s best interests. Because the Children are Indian children, 

the proceedings are subject to ICWA. In addition to the state grounds for 

termination, ICWA requires that any party seeking termination of the 

Indian parents’ parental rights produce clear and convincing evidence of 

unsuccessful active efforts at “remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian family.” 25 U.S.C. 

§ 1912(d) (2012); Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421, ¶ 26

(App. 2011) (“[T]he necessary ICWA ‘active efforts’ finding must . . . be 

made under the clear and convincing evidence standard.”). ICWA neither 

defines active efforts, nor specifies who must make active efforts, only that 

such efforts were unsuccessfully made. See S.S. v. Stephanie H., 241 Ariz. 

419, 425, ¶ 21 (App. 2017). Further, the party seeking termination must 

 

4 The parental rights of the Mother were also terminated, but are not 

subject to this appeal.
CARLOS R. v. DCS, et al.

Decision of the Court

4

prove beyond a reasonable doubt that “continued custody of the child by 

the parent or Indian custodian is likely to result in serious emotional or 

physical damage to the child.” 25 U.S.C. § 1912(f); Valerie M. v. Ariz. Dep’t 

of Econ. Sec., 219 Ariz. 331, 334-35, ¶¶ 11, 14 (2009).

¶8 Father contends that the superior court erred in finding that 

DCS made active efforts to prevent the breakup of his family. “[W]hether 

‘active efforts’ were made and were unsuccessful requires both factual 

findings by the court about the nature and extent of the services provided 

and a legal conclusion about their adequacy.” Yvonne L., 227 Ariz. at 422, ¶ 

28. “[N]either ICWA nor Arizona law mandates that [DCS] provide every 

imaginable service or program designed to prevent the breakup of the 

Indian family before the court may find that ‘active efforts’ took place.” Id.

at 423, ¶ 34. “What constitutes ‘active efforts’ will vary, depending on the 

circumstances, the asserted grounds for severance and available resources.” 

Stephanie H., 241 Ariz. at 425, ¶ 21. We will not reweigh the evidence, and 

“look only to determine whether there was substantial evidence to sustain 

the court’s finding.” Yvonne L., 227 Ariz. at 422, ¶ 27 (internal quotations 

omitted).

¶9 Here, the superior court found that Father’s incarceration for 

kidnapping and assaulting the Children’s Mother limited DCS’s ability to 

provide reunification services to Father. But even so, DCS encouraged 

Father to participate in services available to him through the prison, 

provided Father with updates regarding the Children and facilitated 

contact between Father and the Children through letters and telephone calls

to relatives. Under the circumstances, although DCS’s reunification efforts 

were limited with respect to Father, DCS still made active efforts to provide 

reunification services to the parents to prevent the breakup of their family. 

See People in Interest of S.H.E., 824 N.W.2d 420, 427 (S.D. 2012) (in 

determining whether “active efforts” were made regarding an incarcerated 

parent, the court may consider efforts made to support the non-incarcerated 

parent, because such efforts are aimed at preserving the Indian family and 

there are limited rehabilitative options for incarcerated parents). 

Additionally, the superior court determined that DCS offered Mother, who 

was not incarcerated, numerous services designed to assist her in parenting 

the Children, but she failed to engage in those services. Accordingly, we 

conclude that substantial evidence supports the superior court’s 

determination that DCS complied with ICWA’s “active efforts” 

requirement.

¶10 Next, Father asserts that the superior court erred in making 

the active efforts finding based on testimony presented by a DCS employee. 
CARLOS R. v. DCS, et al.

Decision of the Court

5

At the hearing, Father’s witness testified that DCS had not provided active 

efforts to prevent the breakup of the family. Conversely, DCS’s ICWA 

expert stated that active efforts had been made with respect to the parents. 

A superior court has a “duty to independently assess evidence” presented 

at a hearing. Leslie C. v. Maricopa Cty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997). 

And when evidence is conflicting, the trial court may make a finding 

provided there is substantial evidence to support it. Imperial Litho/Graphics 

v. M.J. Enters., 152 Ariz. 68, 77 (App. 1986). Because substantial evidence 

supports the active efforts testimony provided by DCS, the superior court 

did not err in its finding.

¶11 Lastly, Father argues that his due process rights were violated 

when the superior court proceeded with the termination hearing while he 

was not present in the courtroom. We review constitutional questions de 

novo. Emmett McLoughlin Realty, Inc. v. Pima Cty., 212 Ariz. 351, 355, ¶ 16

(App. 2006).

¶12 “The fundamental requirement of due process is the 

opportunity to be heard ‘at a meaningful time and in a meaningful 

manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “In termination 

proceedings, due process requires notice reasonably calculated, under all 

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

action and to afford them an opportunity to present their objections.” 

Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 92, ¶ 16 (App. 2005) 

(quotations and citation omitted).

¶13 Father’s due process rights were not violated by his 

telephonic appearance during the first day of proceedings. Prior to the 

hearing, the superior court allowed Father the opportunity to consult with 

his attorney, and after their consultation, Father’s counsel announced that 

he was prepared to proceed. “[A] telephonic appearance is an acceptable 

alternative to personal appearance when personal appearance is prevented 

by incarceration.” John C. v. Sargeant, 208 Ariz. 44, 48, ¶ 17 (App. 2004). 

Similarly, Father’s absence from the second day of the hearing did not result 

in a deprivation of rights. The superior court issued an order allowing 

Father to appear by telephone; however, Father did not avail himself of the 

opportunity to appear and no evidence was proffered to excuse his absence. 

Despite Father’s inability to be physically present in the courtroom during 

the hearing, his interests were represented by his counsel, who actively 

participated in the proceeding on his behalf. “[W]here the parent fails to 

appear but is still represented by counsel, the court may proceed in that 

parent’s absence because his or her rights will be protected by the presence 

and participation of counsel.” Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 
CARLOS R. v. DCS, et al.

Decision of the Court

6

299, 307, ¶ 25 (App. 2007); see also Monica C., 211 Ariz. at 95, ¶ 26. 

Accordingly, the superior court did not err by proceeding with the 

termination hearing in Father’s absence.

CONCLUSION

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

order terminating Father’s parental rights.