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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES P., STARLENE M., Appellants, 

v.

DEPARTMENT OF CHILD SAFETY, T.D., S.M., J.D., R.D., HOPI TRIBE, 

Appellees. 

No. 1 CA-JV 20-0357 

Appeal from the Superior Court in Maricopa County

No. JD31456 

The Honorable Lori Horn Bustamante, Judge

AFFIRMED

COUNSEL

Law Office of Ed Johnson PLLC, Peoria

By Edward D. Johnson

Counsel for Appellant Charles P.

Law Office of H. Clark Jones LLC, Mesa

By H. Clark Jones

Counsel for Appellant Starlene M.

Arizona Attorney General’s Office, Tucson

By Jennifer R. Blum

Counsel for Appellee Department of Child Safety

The Webb Law Group, Flagstaff

By Brian Webb 

Counsel for Appellee Hopi Tribe

FILED 7-22-2021
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

2 

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Chief 

Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

F U R U Y A, Judge:

¶1 Starlene M. (“Mother”) and Charles P. (“Father”) appeal the 

superior court’s order terminating their parental rights to their children. 

On appeal, Mother contends the Department of Child Safety (“DCS”) 

provided insufficient reunification services. Father challenges the 

sufficiency of the evidence that his continued custody would result in 

serious emotional or physical damage to the children and the court’s 

deviation from placement preferences under the Indian Child Welfare Act 

(“ICWA”). For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father are the biological parents of minor 

children J.D.M., born March 2015, and R.D.M., born June 2017, and

Mother is also the biological mother of T.D.M., born October 2006, and

S.M., born August 2009 (collectively, the “children”). The children are 

enrolled members of the Hopi Tribe and “Indian child[ren]” as defined by 

ICWA. See 25 U.S.C. §§ 1901–1963. 

¶3 In April 2018, DCS investigated Mother and Father 

following a report of alleged substance abuse and domestic violence. DCS 

had previously received at least ten reports that Father and Mother 

engaged in severe domestic violence in the presence of the children. Upon 

investigation, DCS observed unsanitary conditions, minimal food, and 

empty alcoholic beverage containers throughout the home. The children 

were found outside playing amongst sharp metal scraps. The children had 

not been enrolled in school for more than a year. 

¶4 DCS removed the children from Mother’s and Father’s care 

and filed a dependency petition. The children were found dependent in 

November 2018 and a case plan for family reunification was adopted. The 

case plan required Mother to demonstrate sobriety, create a domestic 

violence prevention plan, address her mental health and coping 

mechanisms, and maintain housing and stable employment. DCS referred 

Mother for substance-abuse testing, substance-abuse treatment, parent-
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

3 

aide services, case-aide services, and transportation services. Mother was 

also referred for a psychological evaluation. 

¶5 The case plan required Father to acknowledge his domestic 

violence and substance abuse and to implement prevention plans. DCS 

referred Father for substance-abuse testing, substance-abuse counseling, 

individual counseling with a domestic-violence component, parent-aide 

services, supervised visitation, case-aide visitation, transportation 

services, and a psychological evaluation. Father denied having issues with 

substance abuse or domestic violence. Father infrequently participated in

services and failed to complete domestic-violence counseling. 

¶6 In February 2020, after the court changed the case plan to 

severance and adoption, DCS filed a motion to terminate Mother’s and 

Father’s parental rights on the ground that the children had been in outof-home placement for more than fifteen months. After adjudication in 

November 2020, the court granted the motion. See Ariz. Rev. Stat. 

(“A.R.S.”) § 8-533(B)(8)(c). Mother and Father timely filed notices of 

appeal, and we have jurisdiction pursuant to A.R.S. §§ 8-235, 12-

120.21(A)(1), and -2101(A)(1). 

DISCUSSION

¶7 To terminate a parent’s rights, the superior court must find 

clear and convincing evidence to support at least one statutory ground for 

termination. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C). Termination must 

also be shown to serve a child’s best interests by a preponderance of the 

evidence. Ariz. R.P. Juv. Ct. 66(C). In ICWA cases, a court must also be 

persuaded 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.” Valerie 

M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3 (2009) (citing 25 U.S.C. 

§ 1912(d)); accord Ariz. R.P. Juv. Ct. 66(C). The court must further make “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 (citing 25 U.S.C. § 1912(f)); accord Ariz. R.P. Juv. Ct. 66(C). 

¶8 In this case, the court ordered termination under A.R.S. § 8-

533(B)(8)(c), which requires that: (1) the parent be “unable to remedy the 

circumstances that cause[d] the child to be in an out-of-home placement,” 

(2) there be “a substantial likelihood that the parent will not be capable of 
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

4 

exercising proper and effective parental care and control in the near 

future,” and (3) DCS has provided appropriate reunification services. We 

“will affirm the court’s termination order absent an abuse of discretion or 

unless the court’s findings of fact were clearly erroneous.” E.R. v. DCS, 237 

Ariz. 56, 58, ¶ 9 (App. 2015) (quotations omitted). A finding is clearly 

erroneous if no reasonable evidence supports it. Mary Lou C. v. 

Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). 

I. DCS’ Active Efforts Toward Reunification

¶9 Mother does not challenge that DCS established the 

statutory ground for termination by clear and convincing evidence, nor 

that DCS proved beyond a reasonable doubt that Mother’s continued 

custody would likely result in serious emotional or physical damage to 

the children. Instead, Mother argues—for the first time on appeal—that

DCS failed to make active efforts to prevent the break-up of her family

because it offered her insufficient services. At no time during the two 

years and five months of dependency proceedings did Mother object to 

the sufficiency of the services DCS provided. Because Mother did not 

make a timely objection, she has waived this argument. Shawanee S. v. 

Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178–79, ¶¶ 16, 18 (App. 2014).

¶10 Waiver notwithstanding, Mother’s arguments are without 

merit. Preliminarily, Mother concedes that DCS offered a wide array of 

services, in which she chose not to participate. Following Mother’s

psychological evaluation in April 2019, she was diagnosed with bipolar II

disorder, post-traumatic stress disorder, alcohol-abuse disorder, and a 

mild intellectual disability. The evaluating psychologist recommended 

certain services (some of which DCS was already providing), individual 

counseling, and a psychiatric evaluation. DCS requested Mother self-refer 

for individual counseling and the recommended psychiatric treatment.

¶11 Mother contends that DCS failed to provide her with the 

recommended psychiatric evaluation. But the record reflects that after

DCS asked Mother to self-refer, Mother reported that she was receiving 

in-patient care and counseling services through Southwest Garden Lakes 

(“Southwest”). And when Mother later indicated she was no longer 

receiving these services, DCS offered to have a child-safety specialist help 

her with the self-referral process. On multiple occasions, Mother’s case 

manager also requested that Mother come to the office for self-referral 

assistance. However, Mother declined these offers, claiming first that she 

did not need the services and later that she was already receiving the 

services independent of DCS. 
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

5 

¶12 At trial, Mother testified that she underwent a psychiatric 

evaluation through Southwest in December 2019 and received treatment. 

She further testified that she was receiving services through Southwest, 

had a psychiatrist visit her at home, and had participated in individual 

counseling in 2020. The ICWA expert stated that DCS had made active 

efforts towards family reunification but requested that Mother be given 

additional time to participate in services. Given this history, the court’s 

finding that DCS made “diligent and active efforts by providing an array 

of reunification services” is supported by sufficient evidence. Mother has 

shown no abuse of discretion.

II. Evidence and Likelihood of Potential Emotional or Physical 

Damage to the Children

¶13 Father does not dispute that the children were placed in outof-home care for more than fifteen months, nor that DCS made active 

efforts towards reunification. Rather, Father contends the evidence does 

not support the court’s finding that his continued parental custody would 

likely cause serious emotional or physical harm to the children.

¶14 In termination proceedings involving an Indian child, “the 

moving party or petitioner must prove, beyond a reasonable doubt, 

including testimony from a qualified expert witness, 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.” Ariz. R.P. Juv. Ct. 

66(C); accord 25 U.S.C. § 1912(f). Evidence must show “that the parent’s 

conduct is likely to harm the child and that the parent is unlikely to 

change [his or] her conduct.” Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

566, 571–72, ¶ 21 (2008).

¶15 The record supports the court’s finding that Father would 

likely cause the children serious emotional or physical damage due to his 

“unaddressed issues related to domestic violence and substance abuse.” 

Under his care, the children experienced periodic homelessness and 

unsanitary living conditions. Father became violent when intoxicated and 

at times drove the children in his car while under the influence. As a result 

of having witnessed prior domestic violence, S.M. feared calling the police 

when Father was choking Mother. Father missed all but three of his 

scheduled drug tests, tested positive for alcohol twice, and failed to 

engage in multiple substance-abuse treatment referrals throughout the 

two-and-a-half-years of proceedings. 
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

6 

¶16 The record also supports the court’s finding that Father’s 

problematic behavior is likely to continue. Failure to complete 

reunification services is reasonable evidence that a parent’s issues will 

persist for an indeterminate period. Raymond F. v. Ariz. Dep’t of Econ. Sec., 

224 Ariz. 373, 379, ¶ 29 (App. 2010). Here, Father did not complete parentaide services, had not engaged in domestic-violence treatment, and failed 

to secure stable housing. Moreover, at trial, Father denied having any 

issues with substance abuse or domestic violence. DCS presented

evidence that Father was still unable to protect the children despite

providing services over a two-year period. Finally, the ICWA expert 

opined that returning the children to Mother or Father could result in 

emotional or physical harm to the children. 

¶17 The record supports the court’s finding beyond a reasonable 

doubt that Father’s renewed custody would likely result in serious 

emotional or physical damage to the children, and he was unlikely to 

change. Therefore, Father has shown no error. 

III. Good Cause to Deviate from ICWA Placement Preferences 

¶18 Father argues that the court lacked good cause to deviate

from ICWA placement preferences. “We review a finding of good cause to 

deviate from ICWA preferences for an abuse of discretion.” Navajo Nation 

v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 339, 343, ¶ 14 (App. 2012). The order of 

preferential placement of an Indian child under 25 U.S.C. § 1915(b) is as 

follows:

(i) a member of the Indian child’s extended family; 

(ii) a foster home licensed, approved, or specified by the 

Indian child’s tribe; 

(iii) an Indian foster home licensed or approved by an 

authorized non-Indian licensing authority; or 

(iv) an institution for children approved by an Indian 

tribe or operated by an Indian organization which has 

a program suitable to meet the Indian child’s needs.

¶19 Father claims that “the record is devoid on the factors that 

caused the court to make the finding that there was good cause to deviate 

from the ICWA placement preferences.” To the contrary, the court 

referenced the Bureau of Indian Affairs Guidelines for State Courts and 

Agencies in Indian Child Custody Proceedings (the “Guidelines”), in its 
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

7 

finding of good cause. The court detailed the following four factors it used 

from the Guidelines to determine good cause to deviate from placement

preferences: 

(1) [T]he parents’ requests; (2) the child’s requests; (3) 

‘extraordinary physical or emotional needs of the child,’ 

which ‘does not include ordinary bonding or attachment 

that may have occurred as a result of a placement or the fact 

that the child has, for an extended amount of time, been in 

another placement that does not comply with the Act;’ and 

(4) unavailability of a placement after a showing by the 

agency and a determination by the court ‘that active efforts 

have been made to find placements meeting the preference 

criteria, but none have been located.’ 

(quoting Guidelines, 80 Fed. Reg. 10146-02 at 10158). 

¶20 The court provided a detailed discussion justifying why 

good cause existed to deviate from preferred placement. The court noted 

that the children were initially placed with their maternal aunt and uncle 

until the aunt indicated she could no longer care for all of the children.

T.D.M. was the only child left in the aunt’s care but later requested to be 

with his siblings in foster care. DCS made active efforts to locate ICWAcompliant family members, but all were either unwilling or inappropriate 

placements. Family members also indicated that they were willing to 

ensure the children’s continued exposure to Hopi culture while in foster 

care. Finally, the court noted that the children had a strong bond with 

their current placement, and the Hopi Tribe expressed no objection to it. 

The record also demonstrates that DCS attempted to locate a preferred 

placement through a family friend but found no suitable home. Having 

detailed the unavailability of a preferential placement after active efforts 

by DCS, the court found good cause to deviate from the placement 

criteria, and Father has shown no abuse of discretion.
CHARLES P., STARLENE M. v. DCS et al.

Decision of the Court

8 

CONCLUSION

¶21 Because Mother and Father have shown no abuse of 

discretion or error, we affirm the order terminating their parental rights.