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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALBERT D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, X.D., Z.D., 

Appellees.

No. 1 CA-JV 17-0505 

Appeal from the Superior Court in Maricopa County

No. JD 527402

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Nicholas Chapman-Hushek

Counsel for Appellee, Department of Child Safety

FILED 5-22-2018
ALBERT D. v. DCS et al. 

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.

B R O W N, Judge:

¶1 Albert D. (“Father”) appeals the superior court’s order

terminating his parental rights to X.D. and Z.D. Because reasonable 

evidence supports the court’s order, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Father and Sarah S. (“Mother”) are the biological parents of

X.D. and Z.D. (“children”), born in 2010 and 2011, respectively.

1 In 

February 2014, the Department of Child Safety (“DCS”) took the children 

into temporary physical custody after receiving a report of physical abuse 

and neglect.

2 Z.D. had unexplained injuries, including bruises on his 

forehead, chin, and face, and “long diagonal red marks on the top of his 

wrists.” DCS placed the children in foster care, where they remained 

during the proceedings. 

¶3 DCS filed a dependency petition alleging Father was unable 

to parent the children, and after a hearing, the superior court found the 

children dependent as to Father because he was “unable to parent the 

child(ren) due to physical abuse and/or failure to protect from physical 

abuse, domestic violence, neglect, substance abuse and a prior 

dependency.” Although the court at that time approved the case plan of 

reunification concurrent with severance and adoption, the case plan was 

later changed to reunification, and finally to severance and adoption. 

¶4 In August 2015, DCS filed a motion to terminate Father’s 

parental rights, but by April 2016, Father had successfully completed all of 

the services DCS offered. Father also obtained stable housing and 

 

1 Mother, whose parental rights to the children were terminated in 

April 2016, is not a party to this appeal. 

2 For simplicity, references to “DCS” encompass the Arizona 

Department of Economic Security and former Child Protective Services.
ALBERT D. v. DCS et al. 

Decision of the Court

3

employment. Although the case plan was not changed, DCS worked to 

reunify Father with the children, allowing him to progress from supervised 

visits to overnight visits. DCS also filed a motion to change physical 

custody of the children to father, which the court granted. 

¶5 But an overnight visit in June 2016 resulted in a “[h]otline 

call,” which reported an injury to Z.D. After this call, Father had only 

supervised visits with the children until October 2016, when the children 

refused to participate in further visits. DCS then offered a second 

psychological evaluation to see if Father needed additional services to assist 

with reunification but Father did not keep the scheduled appointments. 

¶6 In January 2017, DCS filed an amended motion for 

termination based on the grounds of fifteen months’ time-in-care, abuse, 

and neglect. The superior court held a contested severance hearing over a 

three-day period. The court subsequently granted DCS’s motion to 

terminate Father’s parental rights based on all three grounds and found 

termination was in the children’s best interests. This timely appeal

followed. 

DISCUSSION

¶7 To terminate parental rights, the superior court must find by 

clear and convincing evidence at least one statutory ground in Arizona 

Revised Statutes (“A.R.S.”) section 8-533(B), and must find by a 

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

interests. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J. 

v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We will affirm an 

order terminating parental rights if reasonable evidence supports it. Jordan 

C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). “[W]e view 

the evidence and reasonable inferences . . . in the light most favorable to 

sustaining the court’s decision.” Id. If we affirm one of the statutory 

grounds on which the juvenile court ordered termination, we need not 

address the other grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 

278, 280, ¶ 3 (App. 2002).

A. Statutory Ground

¶8 Under the fifteen months’ time-in-care ground, DCS was 

required to prove that (1) DCS made diligent efforts to provide appropriate 

reunification services; (2) the children were in an out-of-home placement 

for at least fifteen months; (3) Father was unable to remedy the

circumstances that caused the children to be in an out-of-home placement; 

and (4) a substantial likelihood existed that Father would not be capable of
ALBERT D. v. DCS et al. 

Decision of the Court

4

exercising proper and effective parental care and control in the near future. 

A.R.S. § 8-533(B)(8)(c). In considering whether DCS proved this ground, 

the superior court was obligated to “consider the availability of 

reunification services to the parent and the participation of the parent in 

these services.” Id. § 8-533(D). Below, we address only the first and fourth 

elements because those are the only elements Father challenges.

¶9 As we understand his argument, Father asserts DCS did not 

make diligent efforts because a family reunification team was never 

implemented. However, Father has not directed us to any place in the 

record where he objected to the adequacy of reunification services based on

DCS having allegedly failed to implement a family reunification team; he 

has therefore waived that argument.

3 See Shawanee S. v. Ariz. Dep’t of Econ. 

Sec., 234 Ariz. 174, 178-79, ¶ 16 (App. 2014) (holding that a parent is 

precluded from challenging the diligent efforts finding on appeal when the 

parent does not object to the adequacy of the services in the superior court); 

ARCAP 13(a)(7)(B) (requiring appellant’s opening brief to cite portion of 

record “where the particular issue was raised,” and for rulings requiring an 

objection, where the objection is located in the record).

¶10 Father next argues DCS failed to prove “that there is a 

substantial likelihood that he will not be capable of exercising proper and 

effective parental care and control in the near future.” Father points to the 

adequacy of the services (such as stating DCS offered no services that 

would improve his ability to care for the children) and to his own testimony

for support. 

¶11 Most of the evidence Father directs us to is simply conflicting

evidence. See Jesus M., 203 Ariz. at 282, ¶ 12 (“The resolution of such 

conflicts in the evidence is uniquely the province of the juvenile court as the 

trier of fact; we do not re-weigh the evidence on review.”). Reasonable 

evidence supports the superior court’s finding that a substantial likelihood 

existed that Father would not be capable of exercising proper and effective 

parental care and control in the near future. 

¶12 Father acknowledged the children were removed from the 

home in 2014 because of domestic violence, which, at times, occurred

 

3 As to the family reunification team, Father testified DCS did not just 

offer a family reunification team but it actually provided one. Only after 

the overnight visit in June 2016, which resulted in injuries to Z.D., was the 

referral for the team withdrawn. 
ALBERT D. v. DCS et al. 

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between Father and Mother and which the children witnessed. During one 

of the domestic incidents, Father “forcibly t[ook] [X.D.] out of [Mother’s] 

arms because she had him in a headlock.” Father testified he has moments 

where he struggles with controlling his anger, and sometimes has difficulty 

with aggression and violence. 

¶13 Kimberly Tuttle, the DCS case manager who oversaw the case 

from February 2015 to August 2017, testified the children came into DCS’s 

care because “[t]here was a domestic violence incident between [Father] 

and [Mother], in which [Z.D.] ended up with some unexplained injuries.” 

Father had access to Z.D at the time Z.D. suffered the injuries, and both 

children witnessed the domestic violence between Father and Mother, 

which is a “frightening situation for a child.” As to services, DCS had 

Father complete substance abuse testing and treatment; a psychological 

evaluation; counseling that included anger management, domestic 

violence, and past trauma components; and parent-aide, which involved 

individualized behavioral goals aimed, in part, at helping Father with

domestic violence and positive discipline.

¶14 A licensed psychologist, Kathryn Menendez, reported in July 

2014 that Father suffers from a personality disorder that includes aggressive 

behavior. Father had “demonstrated a pattern of neglect and poor 

supervision over his children,” and “demonstrated a pattern of 

aggressiveness in the presence of his children which ha[d] resulted in their 

injury.” Menendez diagnosed Father with “neglect of a child,” which 

means he is a “perpetrator of child neglect.” 

¶15 Moving forward to 2016, Tuttle testified that the children had 

an overnight visit with Father in June 2016, but as a result of that visit, DCS 

received a hotline call “stating that the youngest child, [Z.D.], had a fistshaped bruise in the middle of his back.” Shortly thereafter, the children 

were interviewed; Tuttle observed an oval-shaped injury on Z.D.’s back 

and heard Z.D. state that Father hit him. Z.D. repeatedly stated, to Tuttle 

and others, that Father hit him, and has never indicated it was someone 

else. Z.D. refused to visit Father several months later, continuing to assert 

Father had hit him. 

¶16 Based on various pieces of evidence, Tuttle opined that Father 

abused Z.D. and neglected both children. The children have “special 

needs” (Z.D. has autism and X.D. has ADHD). Because of his aggressive 

behavior and inability to cope with his aggression, Father would not be able 

to deal with the children’s special needs, which require patience, 

understanding, and a calm demeanor. In other words, the children’s special 
ALBERT D. v. DCS et al. 

Decision of the Court

6

needs combined with Father’s aggression issues would put both children at 

risk of being abused by Father if placed in his care. Since the June 2016 

incident, Father has reverted to how he used to be at the time the children 

were placed in out-of-home care. Father has apparently neither benefitted

from any of the services nor demonstrated that he made the behavioral

changes necessary to parent the children. 

¶17 Regarding the June 2016 incident, a DCS report states that not 

only did Z.D. have a bruise on his back but he also had “a diaper rash” and

“a bump on the top of his head” that was “swollen with pain.” Z.D. 

“smelled like urine” and “didn’t have a diaper on when [the foster family] 

picked him up.” In response, DCS fully investigated the abuse and “found 

it to be substantiated.” 

¶18 Jacqueline Hess, a family nurse practitioner, performed a 

forensic medical examination of Z.D. shortly after he returned home from 

the overnight visit with Father in June 2016 and after the foster parents, who 

noticed “bruises on [Z.D’s] back, arms and legs,” had taken Z.D. to urgent 

care. Hess testified that “the pattern of bruises . . . on the back are 

concerning because of the way they were patterned” and because the back 

is “not a common area where a child would receive bruises just from 

playing.” Z.D. told Hess, who had no reason to doubt Z.D.’s honesty, that 

“[Father] hit him on the back.” 

¶19 Christina Lebovitz, a clinical psychologist that interviewed 

the children and foster parents in December 2016, testified that Z.D. told 

her he was “mad and nervous about visits.” X.D. “was scared to go to 

[Father’s] house” and “said he saw [Father] hit [Z.D.] and hit [Mother]”; 

X.D. “thought that he might be hit also.” A child suffers emotional or 

psychological abuse when that “child is a witness to a sibling or someone 

else being hurt.” In her written report, Lebovitz explained that Z.D. told

foster mother “that [Father] hit him during” two unsupervised overnight 

visits. 

¶20 On this record, reasonable evidence supports the superior 

court’s determination that a substantial likelihood existed that Father

would not be capable of exercising proper and effective parental care and 

control in the near future. Although he completed most of the services,

Father did not complete a second psychological evaluation or successfully 

care for the children during overnight visitations. The evidence also shows

that Father was still violent and aggressive after participating in services 

designed to help him overcome these issues and become an effective parent, 

and that both children would suffer neglect and further physical or 
ALBERT D. v. DCS et al. 

Decision of the Court

7

emotional abuse if returned to his care. Simply because Father testified that

he benefitted from the services and accepted responsibility for his actions, 

does not necessarily mean he is capable of properly and effectively 

parenting the children in the near future. 

B. Best Interests

¶21 Termination of parental rights is in a child’s best interests if 

he or she will “derive an affirmative benefit from termination or incur a 

detriment by continuing in the relationship.” Ariz. Dep’t of Econ. Sec. v. 

Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). “In making the determination, 

the juvenile court may consider evidence that the child is adoptable or that 

an existing placement is meeting the needs of the child.” Mario G. v. Ariz. 

Dep’t of Econ. Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011).

¶22 The superior court found that termination of Father’s parental 

rights was in the children’s best interests because the children were in a 

foster home that potentially could adopt them, were in the least restrictive

placement, were adoptable, would “have permanency in a safe and stable 

home with parents that are able to meet all of their needs,” and would be at 

risk for further abuse and neglect if placed with Father. 

¶23 Father argues the superior court failed to “mention in its 

findings any of the testimony regarding the allegations of physical abuse 

by the foster placement,” and that evidence, including Father’s testimony, 

shows it would be in the children’s best interest to be reunified with him. 

¶24 Father’s arguments are unpersuasive because he is merely 

asking us to reweigh the evidence or resolve conflicting evidence, which is 

not our role. See Jesus M., 203 Ariz. at 282, ¶ 12. To the extent Father 

challenges the adequacy of the superior court’s findings, this argument is

waived because Father fails to cite supporting authority or explain why the 

court was required to issue specific written findings regarding the alleged 

abuse by the foster parents, especially when the court found the children 

would be in a safe home. See Melissa W. v. Dep’t of Child Safety, 238 Ariz. 

115, 117-18, ¶ 9 (App. 2015) (finding arguments waived because mother did 

not support the arguments “with citation to relevant authority”). 

¶25 Tuttle testified that severance and adoption was in the 

children’s best interests, the current foster placement was the least 

restrictive and meeting the children’s needs, the foster parents were willing 

to adopt both children, and the children were adoptable. The children 

would benefit from termination of Father’s parental rights because they 
ALBERT D. v. DCS et al. 

Decision of the Court

8

would have a stable home, which “would really alleviate a lot of worries 

for these children.” The children feel safe in their current placement. 

¶26 Lebovitz testified that if the children returned to Father, they 

would experience “overwhelming anxiety and some further emotional 

damage.” Joanne Mathlin, a DCS unit supervisor, also testified that 

severance was in the children’s best interests. Therefore, reasonable 

evidence supports the superior court’s finding that termination of Father’s 

rights was in the children’s best interests.

CONCLUSION

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

order terminating Father’s parental rights to the children.