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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LESTER L., Appellant,

v.

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

No. 1 CA-JV 15-0103

Appeal from the Superior Court in Mohave County

No. S8015JD201300045

The Honorable Richard Weiss, Judge

AFFIRMED

COUNSEL

Erika A. Arlington, Esq., PC, Flagstaff

By Erika A. Arlington

Counsel for Appellant

Arizona Attorney General's Office, Tucson

By Laura J. Huff

Counsel for Appellee Department of Child Safety
LESTER L. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Margaret H. Downie and Judge Lawrence F. Winthrop joined.

J O H N S E N, Judge:

¶1 Lester L. ("Father") appeals the superior court's judgment 

severing his parental rights to his son and daughter, born in 2000 and 2001, 

respectively, on grounds of neglect, chronic drug abuse and 15 months' 

time in care, pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-

533(B)(2), (3) and (8)(c) (2015).1 On appeal, Father argues only that the 

superior court erred by allowing the Department of Child Safety ("DCS") to 

deny him visits with the children and that his trial counsel was ineffective 

for failing to press that issue before the superior court. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The children were taken from Father in July 2013 after he was 

arrested and charged with domestic violence against his significant other. 

In the course of the subsequent dependency, the children told investigators 

that Father had physically abused them, and Father admitted he abused 

drugs. In the months following the children's removal, Father was 

incarcerated intermittently and subject to prosecutions in Arizona and 

Nevada.

¶3 Father agreed to a case plan that required him to complete 

parenting classes, domestic violence counseling and substance abuse 

assessment with follow-up recommendations, and to submit to random 

urinalyses for 30 days. Upon his release from incarceration, he was to have 

supervised visitation at least once a week for two hours, and supervised 

telephone contact with the children twice a week "at the discretion of 

placement." After Father was released from jail in August 2013, however, 

he missed about half of his scheduled visits. On December 23, 2014, DCS 

moved to terminate Father's parental rights. At the subsequent trial in 

March 2015, a DCS supervisor testified Father had failed to participate in 

random drug testing, failed to complete a substance-abuse assessment and 

 

1 Absent material revision after the relevant date, we cite a statute's 

current version.
LESTER L. v. DCS, et al.

Decision of the Court

3

had not enrolled in anger-management or domestic-violence classes. The

superior court granted the motion to terminate, finding by clear and 

convincing evidence the statutory grounds of neglect (Father failed "to 

provide an adequate home and financial means to meet the daily needs of 

his children"), chronic abuse of dangerous drugs, and 15 months' time in 

care. The court further found DCS had "made reasonable efforts to provide 

[Father] with rehabilitative services" and "appropriate reunification 

services," and also found, by a preponderance of the evidence, that 

termination was in the best interests of the children.

¶4 We have jurisdiction of Father's timely appeal pursuant to 

A.R.S. § 8-235(A) (2015).

DISCUSSION

¶5 The superior court may terminate a parent-child relationship 

upon proof by clear and convincing evidence of at least one of the statutory 

grounds set out in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec., 

196 Ariz. 246, 249, ¶ 12 (2000). Additionally, the court must find by a 

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

interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). On appeal, 

this court will accept the superior court's findings of fact unless no 

reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 

Ariz. 278, 280, ¶ 4 (App. 2002).

¶6 Termination of a parent's rights on grounds of time in care or 

substance abuse requires proof that DCS has made a diligent effort to 

rehabilitate the parent and reunify the family. A.R.S. § 8-533(B)(8)(c) (time

in care); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453 n.3 (App. 

2005) (substance abuse).

2 Among such efforts may be the allowance and 

facilitation of visits between a parent and child. See In re Maricopa County 

Juv. Action No. JD-5312, 178 Ariz. 372, 375 (App. 1994) ("[v]isitation with the 

child may be critical to the parent's ability" to show child should be returned 

to his custody).

¶7 On appeal, Father argues DCS failed to make diligent or 

reasonable efforts to provide him with appropriate reunification services 

because it did not allow him visits with his children after April 2014. He

argues the superior court erred by allowing DCS to end his weekly 

 

2 We need not address whether DCS has any legal obligation to 

provide reunification services when it moves for termination of parental 

rights based on neglect. See A.R.S. § 8-533(B)(2). 
LESTER L. v. DCS, et al.

Decision of the Court

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telephone visits without sufficient evidence that the visits were 

endangering the children. He further argues his trial counsel was 

ineffective because counsel failed to press the visitation issue in the superior 

court and to ask the court to make an appealable ruling on the issue.

¶8 After Father's son and daughter were taken into care, they 

required therapeutic counseling to address their fear of Father arising from

his domestic violence and inability to control his temper. In spring 2014, 

the children, then 14 and 13, told authorities they wanted no more visits 

with Father. On May 7, 2014, Father filed a "Motion for Status Hearing 

Regarding Termination of Visitation," arguing that his weekly telephone 

visits had ceased and that it was "difficult, if not impossible" to achieve 

reunification without visitation.

¶9 On June 6, DCS convened a Child Family Team meeting to 

address visitation. According to a report submitted to the court that month, 

the team agreed "to facilitate a telephonic visitation with Father in a 

therapeutic environment with the children's therapist." It was thought that 

"[t]his will provide the necessary support and safety to the children and 

also allow them an opportunity to process the visit in a therapeutic setting." 

The therapeutic telephone visit, however, did not go well. According to a 

record submitted to the court, "the children were reported to be fearful and 

their engagement and conversation was very limited." Further, a case 

worker reported, "[t]he telephonic visit with the children did not prove to 

be beneficial for the children due to their underlying fear of their father and 

the trauma experienced prior to removal. The children, through their 

Counsel and therapist[,] continue to refuse any further contact with Dad."

¶10 The single therapeutic telephonic visit that was the product of 

the June 6 team meeting apparently was the children's last visit with Father. 

After the next hearing in the case, held on July 2, the superior court issued 

an order that stated, "[t]his is the time for Permanency Hearing and Status 

re: Visitation." The record does not disclose, however, what, if anything,

occurred at the hearing concerning visitation. The court next took up the 

issue of visitation at a hearing on August 20. According to the order the 

court issued at the conclusion of the hearing, the children continued to say 

they "wish to have no visitation," but Father "wants in home visits." The 

court made no ruling concerning visitation, however.

¶11 The record in this case contains sufficient evidence to support 

the superior court's implicit decision to decline to require DCS to provide 

visits after the children said they no longer wanted to see or talk to Father 

and after the failure of the June 2014 therapeutic visit. According to the 
LESTER L. v. DCS, et al.

Decision of the Court

5

DCS case manager, Father's son and daughter were afraid of Father because 

of his drug habit and his anger issues. The record demonstrates grounds 

for their concern. Shortly after the children were taken into care, Father was 

jailed for 60 days in connection with allegations of domestic violence. The 

son said Father once became angry and threw him into a table, and both 

children expressed concern that if Father were allowed to visit with them 

in person, he would run off with them. At trial, Father testified he 

disciplined the children using "[o]ld school" means: "They got a lot of 

whippings, right," sometimes leaving welts. He acknowledged under oath 

that was enough to cause his children to fear him.

¶12 Under the circumstances, including the children's wellfounded fear of Father and their expressed desire not to see or talk to him, 

the superior court was not required to order DCS to allow Father to visit 

the children. See Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 

17 (App. 2004) ("[W]e will presume that the juvenile court made every 

finding necessary to support the severance order if reasonable evidence 

supports the order."); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 

192, ¶ 34 (App. 1999) (State not required to provide futile efforts at 

reunification); JD-5312, 178 Ariz. at 375-77 (affirming order, entered after 

hearing, denying visitation rights based on superior court's findings that 

visits with parent were so disruptive that termination of visits was in 

children's best interests). Further, Father does not dispute that DCS offered 

him many other reunification services, most of which, as noted, he failed to 

accept.

¶13 Nor do we accept Father's contention that his trial counsel 

prejudiced his defense of the termination proceedings by failing to press 

the superior court to allow visitation or to issue an appealable order on the 

issue. Even if, as Father argues, his lawyer was ineffective or inadequate, 

for the reasons stated, Father's defense was not prejudiced as a result. See 

John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 325, ¶ 18 (App. 2007). 

During the intermittent periods in the proceedings when he was not 

incarcerated and was allowed visits, Father frequently missed the visits. 

Because the record supported the denial of visitation and because Father 

does not dispute that sufficient evidence supported the existence of 

statutory grounds for termination, he cannot prove that, had his counsel 

more vigorously pressed for visitation after April 2014, the outcome of the 

termination proceedings "would have been different." See id.
LESTER L. v. DCS, et al.

Decision of the Court

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CONCLUSION

¶14 For the reasons stated above, the superior court's judgment 

terminating Father's parental rights as to his son and daughter is affirmed.