Brionna J. v. Dcs, A.V.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BRIONNA J., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.V., Appellees.

No. 1 CA-JV 21-0039
FILED 5-24-2022

Appeal from the Superior Court in Maricopa County
No. JD530462
The Honorable Connie Contes, Judge Retired

VACATED AND REMANDED

COUNSEL

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
 BRIONNA J. v. DCS, A.V.
Opinion of the Court

OPINION

Presiding Judge Peter B. Swann delivered the opinion of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 In this severance case, we are confronted with the sometimes
difficult distinction between a history of bad parenting and grounds that
justify the permanent termination of a parent-child relationship by the
government. We hold that even abundant evidence of bad parenting does
not necessarily equate to the parental unfitness necessary to justify
permanent termination of the parent-child relationship by the state. In this
appeal, we review an order severing Brionna J.’s (“Mother[’s]”) parental
rights under A.R.S. § 8-533(B)(8)(c). We vacate the severance and remand
for further proceedings. Though Mother was deeply troubled and far from
an ideal parent, she improved in response to services and insufficient
evidence supported the juvenile court’s conclusion that she was unfit.

FACTS AND PROCEDURAL HISTORY

¶2 Mother gave birth to A.V. in 2005.1 She was thereafter
reported to child protective services multiple times over a period of years.
In 2006, she was reported for testing positive for marijuana, for engaging in
domestic violence with A.V.’s father, and for permitting A.V. to live with
her grandmother in a different state. In 2007, she was reported for not
visiting A.V. when the child was hospitalized for pneumonia, for abusing
alcohol and illegal drugs, for driving A.V. while under the influence, for
leaving drugs and drug paraphernalia in an area accessible to A.V., and for
stabbing A.V.’s father and placing A.V. in the road to prevent him from
leaving. In 2008, she was reported for going “clubbing” at night while
leaving A.V. in the care of her grandmother, a user of alcohol and illegal
drugs who spanked A.V. and often slept while A.V. moved unsupervised
around a house containing unsecured chemicals. In 2011, she was reported
for using marijuana in front of A.V., leaving marijuana in an area accessible
to A.V., and not taking A.V. to the doctor when the child had a bad cough.

1 A.V.’s father’s parental rights were severed concurrent with
Mother’s, but he is not a party to this appeal.

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Opinion of the Court

In 2013, she was reported for “always [being] mad” and threatening to kill
A.V. and herself.

¶3 In this appeal, we are concerned with the current petition and
the circumstances giving rise to it. In 2016, Mother was reported to the
Arizona Department of Child Safety for having posed as A.V. to send a
message to the child’s grandmother stating that she (A.V.) had ingested nail
polish remover. The Department thereafter assumed custody of A.V., and
her best-interests attorney filed a dependency petition in November 2016.
The petition alleged that Mother was unable or unwilling to provide
necessary parental care and control, see A.R.S. § 8-201(15)(a)(i), because:

Mother has untreated mental health issues[,] . . . has
physically abused the child by hitting her[,] . . . swears at the
child and calls her derogatory names[,] . . . has a history of
substance abuse and keeps drugs accessible to the
child[,] . . . has a history of domestic violence and has been
arrested and convicted multiple times[,] . . . has prior DCS
involvement in the state of Georgia and Arizona[, and] . . . has
neglected/and or [sic] abandoned the child by leaving her in
the care of the Maternal Grandmother for extended periods of
time.

¶4 Mother contested the petition. But she failed to appear at the
March 2017 evidentiary hearing, so the court found A.V. dependent as to
her on the strength of the petition’s allegations and the reports received by
the Department.

¶5 The Department offered Mother myriad reunification
services. She was not required to participate in substance abuse treatment
because she produced a medical marijuana card. She was referred for
domestic violence counseling but never participated.

¶6 She did participate in a psychological evaluation in March
2017, which noted suspected child neglect, suspected child physical abuse,
and suspected child psychological abuse but resulted in no mental health
diagnoses. The psychologist recommended that Mother would benefit
from services designed to “increas[e] her frustration tolerance and ability
to manage daily stressors.” Mother also participated in a bonding and best-
interests assessment in May 2017. In that assessment, during which Mother
and the grandmother argued in front of A.V., A.V. disclosed to the
psychologist that she feared being hurt by Mother when Mother was angry.
Concerned that Mother had trouble both controlling her temper and

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Opinion of the Court

recognizing that failing, the psychologist opined that anger management or
dialectical behavior therapy (“DBT”) might be helpful.

¶7 The Department set up DBT for Mother in July 2017, but she
did not begin attending that therapy until September 2017. Her counselor
reported that Mother “made behavioral and cognitive improvements.”
Still, in January 2018, after Mother “lashed out and became emotionally out
of control” on two occasions, the therapy was terminated pending Mother’s
successful completion of an anger management program. Mother was
referred for an anger management program, but the referral was closed due
to her “lack of cooperation and resistance to treatment.” Mother ultimately
self-referred for DBT with a different provider in mid-2018, participated in
the therapy, and reported completing the program later that year. She
further provided a certificate of completion for a one-day self-referred
anger management course in late 2018, and she reported in late 2019 that
she had self-referred for an anger management program.

¶8 Mother did not begin participating in parenting-skill sessions
until late 2017. She stopped participating in visits for a time in late 2017
after her threatening behavior toward the parent aide caused the visits to
be moved from her home to the community. In a January 2018 summary
report, the parent aide noted that Mother “struggles with acknowledging
how responding to [A.V.] in a loud, aggressive, belittling, impatient,
badgering, tone places the child in a vulnerable emotional state and causes
the child to support and care for [M]other placing [A.V.] in a[n]
inappropriate family role.” The parent aide further observed that Mother
was “unpredictable as to . . . act[ing] out due to being trigger[ed] by
something [A.V.], family members, or state workers say or do, whether
founded or not,” that Mother appeared “to have no self regulation once she
is angered,” and that Mother had indicated “she is only doing things to get
her daughter back not because she feels there is a need to change.”

¶9 A.V. underwent a psychological evaluation in February 2018
in response to concerns that she was lying, stealing, and threatening
suicide. The psychologist opined that “there are highly likely issues with
anger, sadness, and fear,” and that A.V. acted out in response to her
repressed feelings “connected to being abused and neglected.” The
psychologist recommended that A.V. continue supervised visitation with
Mother.

¶10 In April 2018, Mother underwent a second psychological
evaluation that led to a rule-out personality disorder diagnosis. The
psychologist opined that though Mother appeared to believe she could

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Opinion of the Court

regulate her emotions, the collateral information indicated otherwise. The
parent aide’s progress reports from March to July 2018, however, reflected
that Mother had actively worked on and gained impulse control and self-
awareness. And in August 2018, she was successfully discharged from
parent aide services.

¶11 At supervised visits in late 2018, Mother argued with A.V. on
several occasions. And on one occasion, when her location request was
denied, Mother refused the visit and began clapping and dancing around
the case aide as A.V. watched. At one visit, the case aide reported that
Mother spoke “sarcastically” toward A.V., repeatedly touched A.V.’s hair
over A.V.’s objection, recorded A.V. over A.V.’s objection, grabbed A.V.’s
chin while addressing her “sarcastically,” and twice threatened to end the
visit early. At another visit, after A.V. failed to comply with Mother’s
direction to do homework, Mother yelled at A.V., raised the issue of the
dependency case’s origin, and hugged A.V. after she requested not to be
touched. At other visits, Mother “sarcastically mocked” A.V. for not
wanting inexpensive makeup and argued with A.V. about who was
supposed to pay a school expense.

¶12 During visits in December 2018 and January 2019, Mother
informed A.V. that she would no longer participate in visits based on her
dissatisfaction with the court proceedings and A.V.’s contact with her
father. Consistent with those statements, Mother stopped participating in
visits after the court returned A.V. to her father’s physical custody in
January 2019. She resumed visits only after A.V. was placed back in the
Department’s physical custody in May 2019 based on reports of physical
abuse and neglect by the father.

¶13 Around the same time, Mother, who took the position that she
had completed all necessary services, participated in a Team Decision
Meeting with A.V. Mother’s disruptive behavior at that meeting led A.V.
to yell at her twice, and ultimately Mother was asked to leave early. The
case supervisor reported that this was not the only meeting Mother
disrupted, though she did not specify whether A.V. was present on those
other occasions.

¶14 Mother’s resumed visits with A.V. typically went well
throughout the remainder of 2019. On one occasion, however, Mother
criticized A.V.—who is biracial—for selecting “white kids’ shoes.”
According to the case supervisor, there were “ongoing issues with [A.V.]
being torn between races when it comes to her visits with [Mother].” At the
next visit, Mother immediately began cursing at the case aide for having

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Opinion of the Court

reported her remark, to the point where the case aide removed A.V. and
canceled the visit. Mother thereafter refused to participate in visits for a
month.

¶15 The Department moved in January 2020 to sever Mother’s
parental rights under A.R.S. § 8-533(B)(8)(c) , and the matter ultimately was
set for trial in November 2020.

¶16 Meanwhile, in March 2020, Mother underwent another
psychological evaluation. She was again diagnosed with a personality
disorder, as well as rule-out posttraumatic stress disorder, suspected child
neglect, and suspected child psychological abuse. The psychologist opined
that Mother’s prognosis to safely parent was poor due to her inability to
control consistently her emotions and behavior despite having completed
services.

¶17 In mid-2020, Mother cited unexpected travel to cancel
approximately half a month’s visits following a pair of negative visits.
During the first of those visits, A.V. told Mother that she no longer wanted
to be Black, and Mother responded that A.V. would no longer be her child
by the next month anyhow. During the second visit, Mother left early after
arguing with A.V. about nail polish. In September 2020, the Department
reported that “visits remain concerning due to behaviors between both
[M]other and [A.V.] They continue to make hurtful statements to each
other.” The Department further reported that A.V. had requested that visits
occur only in the community with her grandmother present.

¶18 Mother began individual counseling in June 2020 but refused
to continue after October, when the sessions were switched from a virtual
to an in-person format. Mother’s visits with A.V. stopped entirely a few
weeks before the November 2020 severance trial, at A.V.’s request, because
A.V. wished to stop fighting with Mother. The case supervisor reported
that Mother would insist on discussing her religious beliefs at visits despite
A.V.’s wish not to talk about that topic.

¶19 The case supervisor testified at the severance trial that A.V.
could not safely be returned to Mother’s care because of “Mother’s
behavior, her refusal to make any changes, the ongoing conflict between
her and [A.V.], her ongoing conflict with service providers, [and] her
inability to change her anger.” She explained, “It all leads back to her not
being willing to identify that she has an anger issue and be successful in
trying to make those changes.” The supervisor testified that A.V. was in an
adoptive placement capable of meeting her needs, was adoptable, and had

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Opinion of the Court

finally come to support severance and adoption. The supervisor opined
that severance would serve A.V.’s best interests by providing her
permanency and she would suffer emotionally if severance were denied.

¶20 Mother testified that she was willing to continue individual
counseling online but did not wish to attend in-person because of the
COVID-19 pandemic. She acknowledged that she had failed to control her
temper in the past, had hurt A.V. by her actions, and had used
unnecessarily cruel words. She also acknowledged that she had not been
fully cooperative in the case. She stated, however, that she was “not as [she]
was before” regarding her temper and that her actions did not warrant
severance. She testified that she could care for A.V. and that she believed
it was not uncommon for a mother and teenage daughter to have
disagreements.

¶21 In February 2021, the superior court granted the
Department’s severance motion. The court found that severance was
warranted under § 8-533(B)(8)(c) because:

At the onset of the dependency action, Mother was
very resistant to services and participated minimally. Mother
self-referred for DBT counseling through the VA but
continued to demonstrate aggressive, hostile behaviors
towards providers and, at times, her daughter. When the
child was reunifying with her Father, Mother refused to visit
with [A.V.] Following the removal of [A.V.] from Father in
April 2019, Mother was invited to a team decision making
meeting to discuss prospective kinship placement with the
maternal relatives. However, Mother was disruptive
throughout the meeting and asked to leave.

Mother has continued to display volatile and
disruptive behaviors with providers throughout the
dependency. Mother’s mental health condition and
diagnoses have persisted for more than four years, which is
considered long term. Mother is not amenable to therapy to
make necessary behavioral changes. Currently, Mother and
daughter are not having visitation so that Mother and
daughter stop fighting. Mother has demonstrated she is
unable and/or unwilling to appropriately regulate her
emotions and safely and effectively parent her daughter.

The court further found that severance was in A.V.’s best interests.

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Opinion of the Court

¶22 Mother appeals.

DISCUSSION

¶23 Mother contends that the Department failed to present
sufficient evidence to support termination of her parental rights. Parental
rights must not be terminated absent proof by clear and convincing
evidence that severance is warranted under A.R.S. § 8-533(B), and proof by
a preponderance of the evidence that severance is in the child’s best
interests. 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 address only the
statutory element today.

¶24 We are not permitted to weigh the evidence. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018). Even if the facts are sharply
disputed, we must accept the juvenile court’s findings if supported by
reasonable evidence and inferences. Id. But we must not affirm a clearly
erroneous severance order. Id. “[T]he right of parents to the care and
custody of their child is a fundamental right” that “does not evaporate
simply because they have not been model parents or have lost temporary
custody of their child to the state.” In re Maricopa Cnty. Juv. Action No. JS-
6831, 155 Ariz. 556, 558 (App. 1988) (citation omitted). Accordingly,
notwithstanding our deferential standard of review, we must remain
mindful that severance, which “is a permanent deprivation, not only o[f]
the right to custody but to all contact,” id. at 559, is “a power of awesome
magnitude that must be exercised with great rectitude and always
cognizant of the fundamental rights at stake,” Alma S., 245 Ariz. at 153, ¶ 26
(Bolick, J., concurring in result). “[W]e should take great care to ensure that
our termination of parental rights process has not become a railroad with
no stops and only one destination, in which judges act as mere conductors.”
Id. at ¶ 28 (Bolick, J., concurring in result).

¶25 The Department requested, and the court granted, severance
under § 8-533(B)(8)(c). Accordingly, severance required clear and
convincing evidence that A.V. had been in out-of-home placement for a
cumulative total period of at least 15 months, the Department had made a
diligent effort to provide appropriate reunification services, Mother had
been unable to remedy the circumstances that caused A.V. to be in an out-
of-home placement, and there was a substantial likelihood that Mother
would not be capable of exercising proper and effective parental care and
control in the near future. A.R.S. § 8-533(B)(8)(c); Michael J., 196 Ariz. at 249,
¶ 12.

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Opinion of the Court

¶26 Section 8-533(B)(8)(c) serves as a proxy for parental unfitness,
Alma S., 245 Ariz. at 150, ¶ 10, that creates harm or risk of harm to the child,
Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 229, ¶ 24 (2020). The
circumstances that cause the child to be in an out-of-home placement are
those “‘existing at the time of the severance’ that prevent a parent from being
able to appropriately provide for his or her children.” Marina P. v. Ariz.
Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (emphasis added)
(citation omitted). Children’s rights include “the right to good physical
care, adequate food, shelter and clothing, the right to emotional security,
[and] the right to be free from injury and neglect.” Hernandez v. State, 23
Ariz. App. 32, 35 (1975). But whether a parent can appropriately provide
for his or her children, and whether the parent will be capable of exercising
proper and effective parental care and control, are necessarily elastic
inquiries. Cf. In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571,
579 (App. 1994) (recognizing, for purposes of severance based on parental
abandonment, “[t]erms such as ‘reasonable support’ and ‘normal parental
relationship’ are of necessity imprecise and . . . the concept of abandonment
is somewhat elastic” (citation and internal quotation marks omitted)). We
must also consider that children have “the right to be with [their] natural
parents.” Hernandez, 23 Ariz. App. at 35.

¶27 Mother concedes that A.V. was in out-of-home placement for
more than 15 months and that the Department made a diligent effort to
provide appropriate reunification services. She challenges the sufficiency
of the evidence to support the juvenile court’s determinations that she was
unable to remedy the circumstances that led AV. to be in out-of-home
placement and that she would not be capable of exercising proper and
effective parental care and control in the near future.

¶28 To be sure, reasonable evidence supports the juvenile court’s
findings that Mother was initially resistant to and minimally participated
in services, that she was aggressive and hostile toward providers and
sometimes A.V., that she withheld visits, that she disrupted a team decision
making meeting, that she and A.V. were not currently having visits due to
fighting, and that she had persistent mental health diagnoses and was not
amenable to therapy. We cannot agree, however, that the facts warranted
the conclusion that Mother was unable to “safely and effectively parent her
daughter.” The evidence showed that Mother suffers from a long-term
personality disorder and often fails to control her temper and act maturely,
including when she interacts with or in the presence of A.V. The evidence
showed that on multiple occasions, Mother treated A.V. with disrespect,
told her hurtful and inappropriate things, spitefully withheld visits, and
interacted belligerently with others, sometimes in A.V.’s presence. She was

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Opinion of the Court

far from a model parent. But she was successfully discharged from parent-
aide services, and though her continuing conduct was concerning and may
have established that she was an unkind and volatile parent, the evidence
did not establish that she was unfit. Though the state cites the Department’s
characterization of Mother’s conduct during visits as “explosive,” our
review of the records detailing those visits belies that description. On this
record, even accepting all of the juvenile court’s findings of fact, we must
hold that the state failed to meet its burden to justify severance under § 8-
533(B)(8)(c) and that the juvenile court clearly erred.

¶29 Were this a family court case involving a dispute between
parents, we likely would affirm orders restricting Mother’s access to the
child based on her conduct—but, absent additional evidence, we would not
suggest that the matter be referred for severance. Severance is not a
general-application tool that allows the state to regulate bad parenting. See
JS-6831, 155 Ariz. at 558. The draconian consequences of severance (for
both parent and child) are appropriate under § 8-533(B)(8)(c) only when the
child must be protected from a parent who is incapable of exercising proper
and effective care and control. See Alma S., 245 Ariz. at 153, ¶¶ 26, 28
(Bolick, J., concurring in result). Here, we cannot agree that the statutory
ground was proved by clear and convincing evidence. The evidence
established that Mother was mentally ill, volatile, and unkind, but it did not
establish that she was unfit as a matter of law. In so holding, we do not take
lightly the inevitable conclusion that Mother’s behavior during the
dependency contributed to A.V.’s emotional upset and harmed their
relationship. But we note that the Department conceded at oral argument
on appeal that it did not allege emotional abuse by Mother, and we note
that severance was never sought based on neglect or abuse under § 8-
533(B)(2), or on mental illness under § 8-533(B)(3). We hold that the
severance order must be vacated.

¶30 We stop short, however, of dismissing the dependency.2 We
recognize that the dependency was established based on a showing of
parental unfitness under a lesser evidentiary standard than that required
for severance. See A.R.S. §§ 8-201(15)(a)(i), -844(C)(1); In re Cochise Cnty. Juv.
Action No. 5666-J, 133 Ariz. 157, 159 (1982). But this record does not compel
us to conclude that the dependency was baseless ab initio. Cf. Donald W. v.
Dep’t of Child Safety, 247 Ariz. 9, 18–19, ¶¶ 27–30 (App. 2019).

2 We note that Mother did not advocate for dismissal at oral argument
on appeal. To the contrary, counsel stated that he “couldn’t in good faith
say that [the dependency] should be dismissed.”

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Opinion of the Court

¶31 Ordinarily, when the record establishes that a parent is fit, the
proper remedy is dismissal of the dependency. In Donald W., dismissal was
required because the record would have supported no reasonable findings
sufficient to continue a dependency. But not all cases are so clear. By
enacting § 8-538(E), the legislature anticipated that even in cases where
termination is not warranted, the best interests of the child might still favor
“supplementation” of parental efforts for a time under an appropriate court
order. We therefore remand so that the superior court may evaluate
whether continuing government oversight serves A.V.’s best interests. See
A.R.S. § 8-538(E) (“If the court does not order termination of the parent-
child relationship, it shall dismiss the petition, provided that if the court
finds that the best interests of the child require substitution or
supplementation of parental care and supervision, the court shall make
such orders as it deems necessary.”); see also Ariz. R.P. Juv. Ct. 66(F)(3) (“At
the conclusion of the hearing the court shall . . . [d]eny the termination
motion or petition if the moving party or petitioner did not meet its burden
of proof, and order the parties to submit a revised case plan prior to the
dependency review hearing.”).

CONCLUSION

¶32 We vacate the severance order and remand for further
proceedings consistent with this decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

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