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March 6, 2026 Get Citation Alerts Download PDF Add Note

In Re Term of Parental Rights as to M.M.

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-JV 25-0138

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (8K)

• PDF

Combined Opinion

                        by David D. Weinzweig

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO M.M.

No. 1 CA-JV 25-0138
FILED 03-06-2026

Appeal from the Superior Court in Maricopa County
No. JD534803
The Honorable Suzanne E. Cohen, Judge

VACATED AND REMANDED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Father

Arizona Attorney General’s Office, Phoenix
By Anna V. Vaszar
Counsel for Appellee Department of Child Safety

Deanna Sandler, Esq., Scottsdale
By Deanna Sandler
Counsel for Child
IN RE TERM OF PARENTAL RIGHTS AS TO M.M.
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Michael J. Brown and Judge Veronika Fabian
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 James M. (“Father”) appeals the superior court’s order
terminating his parental rights to his child, M.M. (“Child”). Because the
Department of Child Safety (“DCS”) did not offer reasonable reunification
efforts, we vacate and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father is the biological parent of Child, born in September
2024. 1 Child was born substance exposed to methamphetamine,
amphetamines, THC and methadone. DCS removed Child and the
superior court found her dependent. Child was released from the hospital
to her current foster placement.

¶3 When Child was removed, Father was three months into a 4.5-
year prison sentence for possession of dangerous drugs and drug
paraphernalia, along with misconduct involving weapons. He was
originally jailed in a facility about an hour’s drive from Child’s foster
placement, but was moved in June 2025 to a facility three hours away.
While in prison, Father remained sober and participated in drug-treatment
and parenting classes.

¶4 DCS contacted Father after Child was removed and offered
him paternity testing. In December 2024, DCS learned that Father was the
Child’s natural parent.

¶5 Father wanted in-person visits. He later testified he “told
everybody I wanted in-person visits.” DCS denied in-person visits because
it believed Father was jailed too far away and prison was not a suitable
place for an infant. DCS did, however, begin twice-weekly virtual visits

1 Mother’s parental rights were terminated, but she is not a party to
this appeal.

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IN RE TERM OF PARENTAL RIGHTS AS TO M.M.
Decision of the Court

between Child and Father. These visits went well—Child appeared happy
and Father acted appropriately.

¶6 Father did more than ask for visitation. He tried to have Child
placed with his fiancée. He filed a guardianship petition so that his fiancée
could care for Child until he is released. His fiancée was approved as a
placement after a home study, but DCS elected to keep Child with her
current placement over concerns his fiancée did not understand the gravity
of Father’s substance abuse and misconduct.

¶7 DCS moved to terminate Father’s parental rights in May 2025
on the statutory ground of length of felony incarceration. The case was
tried in August 2025. The court heard testimony from the DCS case
manager, Father and his fiancée.

¶8 The case manager testified that DCS offered only one
reunification service to incarcerated parents—visitation. She testified that
prisoners cannot bond with infants because an infant needs physical
interaction. Father was denied in-person visits because of the distance
between Child and Father’s prison, and DCS believed that prison was
inappropriate for an infant. Father’s fiancée testified she wanted to take
care of Child, would treat her like her own child and was open to
guardianship or adoption.

¶9 The superior court terminated Father’s parental rights. The
court found DCS made reasonable and diligent efforts to reunify Father and
Child. It weighed the Michael J. factors and found Child would be deprived
of a normal home for a period of years because of Father’s felony
incarceration. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251–52,
¶ 29 (2000). And it found that termination was in Child’s best interests
because Child will be adopted by her current placement, where she had a
loving and nurturing home. The court denied the guardianship petition
because Child never lived with Father’s fiancée.

¶10 Father timely appealed. We have jurisdiction. Ariz. Const.
art. 6, § 9; A.R.S. §§ 8-235(A), 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶11 Father challenges the superior court’s termination of his
parental rights. We will affirm a termination order unless clearly
erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App.
2002). We accept the court’s findings of fact unless no reasonable evidence
supports them, id., and view the evidence in the light most favorable to

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IN RE TERM OF PARENTAL RIGHTS AS TO M.M.
Decision of the Court

upholding the order, Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 97,
¶ 20 (App. 2009).

¶12 Parents enjoy a fundamental liberty interest in the care and
custody of their children, along with a due process right to “fair
procedures” when that interest is challenged. Santosky v. Kramer, 455 U.S.
745, 753–54 (1982). As a result, the State must make “reasonable efforts to
preserve the family” before it can terminate parental rights. Mary Ellen C.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186, ¶ 1 (App. 1999). Reasonable
efforts means “measures with a reasonable prospect of success,” but not
efforts that would be futile or endanger the child. Id. at 192, ¶ 34; Jessie D.
v. Dep’t of Child Safety, 251 Ariz. 574, 582, ¶ 21 (2021).

¶13 Father argues that DCS did not make reasonable efforts to
preserve the family here. DCS counters that Father waived this argument
because he did not timely object to the adequacy of services. Not so. Father
requested DCS provide in-person visits; and he challenged the adequacy of
services during the severance trial, preserving the issue for appeal. See
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178, ¶¶ 13–14 (App.
2014) (“And, at a termination hearing, a parent can dispute evidence that
[DCS] claims shows a diligent effort to provide appropriate reunification
services.”).

¶14 DCS must make reasonable efforts to preserve the family even
when a parent is incarcerated. Jessie D., 251 Ariz. at 582, ¶ 21. “Because
parents incarcerated for a lengthy period still possess a fundamental liberty
interest in the care, custody, and management of their children, DCS must
make diligent efforts to preserve the family by providing services to assist
parents in maintaining a bond with their children.” Id. at 581–82, ¶ 20
(citing Troxel v. Granville, 530 U.S. 57, 65 (2000)) (citation modified).

¶15 An incarcerated parent cannot have his parental rights
terminated just because he cannot interact with the children in a more
traditional setting. Id. at 581, ¶ 16. If parental rights could be terminated
for that reason, “incarcerated parents could never adequately maintain a
parent-child relationship with their young children,” which is “contrary to
law.” Id. at ¶ 17. The superior court must instead focus on “‘how and
whether’ a parental relationship can be maintained during [the parent’s]
incarceration.” Id. at ¶ 16.

¶16 DCS must “initiate measures designed to address an
incarcerated parent’s desire to maintain a parent-child relationship.” Id. at
582, ¶ 21. “[M]aintaining a relationship with one’s children while

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IN RE TERM OF PARENTAL RIGHTS AS TO M.M.
Decision of the Court

incarcerated would undoubtedly be a difficult task, but an incarcerated
parent can maintain a bond with a child in other ways, such as through
visits, phone calls, letters, pictures, and gifts.” Id. at 581, ¶ 17.

¶17 The superior court found that DCS made reasonable efforts to
reunify the family here by arranging twice-weekly virtual visits. That was
error. The DCS case manager testified that Father could not establish or
maintain a relationship with Child through virtual visits alone because in-
person visits are essential:

[Child] is in [the] primitive years of her development, where
her primary bonding comes from physical touch, face-to-face
interactions, and learning to trust the caregivers in her life, all
of which are things that she is not able to do with her father,
given his incarceration status.

And yet, Father was denied in-person visitation:

Q Would in-person visits with Father have been possible
to set up for [Child]?

A Not realistically, no.

Q Why do you say not realistically?

A First, the environment where the visits would take
place in a prison is not appropriate for a newborn. And in
addition to that, Father is incarcerated several hours away
from where the child is, so to try to facilitate in-person visits
regularly would be contrary to the best interest of the child.

¶18 Father had no chance to establish or preserve the parent-child
relationship under that logic. DCS’s own witness confirmed that virtual
visits were insufficient for an infant’s bonding needs, but that is all Father
received. Against that backdrop, virtual visits did not represent reasonable
efforts to preserve the family; they were a setup for failure.

¶19 The superior court did not find that in-person visitation
would be futile or endanger the child. See Mary Ellen C., 193 Ariz. at 192,
¶ 34; Jessie D., 251 Ariz. at 582, ¶ 21. And though the case manager testified
it was inappropriate for Child to visit a prison located “several hours
away,” DCS also denied in-person visits when Father was incarcerated just
an hour from Child.

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IN RE TERM OF PARENTAL RIGHTS AS TO M.M.
Decision of the Court

¶20 Nor can DCS fault Father for not seizing on the services it
offered. By all accounts, Father participated to the best of his abilities. He
consistently attended the virtual visits and even arranged make-up visits to
account for Child’s foster placement traveling to Europe for a month. He
positively engaged with Child and acted appropriately during the visits.
What is more, he self-enrolled in parenting and drug treatment classes
offered by the prison.

¶21 Because DCS offered only services that had no prospect of
success, the superior court erred in finding DCS made reasonable efforts to
reunify the family. See Mary Ellen C., 193 Ariz. at 186-87, ¶ 1. Because we
reverse the court’s order terminating Father’s parental rights, we need not
reach Father’s remaining arguments.

CONCLUSION

¶22 We vacate the superior court’s order terminating Father’s
parental rights and remand for further proceedings consistent with this
decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

6