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

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

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

No. CV-25-0173-PR
Filed September 1, 2026

Appeal from the Superior Court in Pima County
The Honorable Helena S. Seymour, Judge Pro Tempore
Nos. JD20230397; S20240024
AFFIRMED

Opinion of the Court of Appeals, Division Two
260 Ariz. 234 (App. 2025)
VACATED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Autumn Spritzer, Dawn R.
Williams (argued), Assistant Attorneys General, Phoenix, Attorneys for
Department of Child Safety

James L. Fullin, Pima County Legal Defender, Sybil Clarke (argued),
Assistant Legal Defender, Pima County Legal Defender’s Office, Tucson,
Attorneys for Maria P.

Paul Bennett (argued), Child and Family Law Clinic, University of Arizona
James E. Rogers College of Law, Tucson, Attorneys for M.P.

Steve Koestner, Legal Advocate, Office of the Legal Advocate, Amanda L.
Adams, Deputy Legal Advocate, Phoenix, Attorneys for Amici Curiae
Maricopa County Office of the Legal Advocate

Michael C. Jones, Maricopa County Office of the Legal Defender, Jamie R.
Heller, Deputy Legal Defender, Phoenix; Shannon Burns, Maricopa County
Office of the Public Advocate, Seth Draper, Deputy Public Advocate,
Phoenix, Attorneys for Amici Curiae Indigent Defense Agencies

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

Anne C. Ronan, Nicholas Ansel, Arizona Center for Law in the Public
Interest, Phoenix, Attorneys for Amicus Curiae Arizona Center for Law in
the Public Interest

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES
MONTGOMERY, KING, and CRUZ joined. CHIEF JUSTICE TIMMER and
JUSTICE CRUZ authored concurring opinions. JUSTICE BOLICK
dissented.

JUSTICE BEENE, Opinion of the Court:

¶1 The juvenile court may terminate a parent-child relationship
if it finds by clear and convincing evidence that at least one of the statutory
factors for termination exists and finds by a preponderance of the evidence
that termination is in the child’s best interests. See Timothy B. v. Dep’t of
Child Safety, 252 Ariz. 470, 474 ¶ 13 (2022); A.R.S. § 8-533(B).
Section 8-533(B)(2) allows the court to terminate a parent’s rights if: “the
parent has neglected or wilfully abused a child. This abuse includes serious
physical or emotional injury or situations in which the parent knew or
reasonably should have known that a person was abusing or neglecting a
child.”

¶2 In this case, we consider (1) whether the court of appeals
misapplied § 8-533(B)(2) by requiring the juvenile court to consider a
parent’s “participation in and benefit from services” when determining
whether the parent is unfit under the statute, and (2) whether the court of
appeals incorrectly concluded that the juvenile court did not have to
consider a parent’s success in services as part of its best-interests finding.
For the following reasons, we hold that the court of appeals erred in both
respects and ultimately erred by vacating the juvenile court’s judgment
terminating parental rights.

BACKGROUND

¶3 Mother gave birth to M.P. in February 2023. In September,
Mother called 911 after she observed her daughter having a seizure. M.P.

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weighed “approximately seven pounds” when she arrived at the hospital
and medical providers there documented her condition as “emaciated,
malnourished, and in medical distress.”

¶4 M.P. required medical care to prevent cardiac and circulatory
failure, dehydration, metabolic crisis, and shock. A brain scan revealed
atrophy consistent with prolonged malnutrition. Medical staff noted that
M.P. did not exhibit gross motor skills typical of a seven-month-old child,
and testing indicated developmental delays across all categories for her age.
Advanced diagnostics aside, her malnourished state was evident from her
sunken eyes and cheeks and loose, hanging skin. A healthy child of M.P.’s
age should weigh approximately fifteen pounds—more than double her
weight upon arrival at the hospital.

¶5 Mother reported that M.P. had weighed fourteen pounds a
month earlier and that she was “cold to the touch” for several days before
being taken to the hospital. Mother denied any illness or vomiting that
could have contributed to M.P.’s weight loss, although Mother
acknowledged that she and M.P.’s father had adopted “a more holistic
approach to life” and that she may not have been producing enough breast
milk to feed her daughter.

¶6 M.P. immediately began gaining weight while at the hospital.
It was later determined that M.P.’s malnutrition was not a metabolic issue
but rather resulted from a lack of proper care and feeding. M.P. stayed in
the hospital for approximately two weeks. Upon her release, the
Department of Child Safety (“DCS”) took custody of M.P. and placed her
in a certified medically fragile foster home to meet her ongoing needs.

¶7 Mother was arrested on child abuse charges, subsequently
pleaded guilty to attempted child abuse, a class 3 felony, and was placed
on probation for seventeen years.

¶8 DCS filed a dependency petition alleging that M.P. was
dependent, as to Mother, due to neglect. Specifically, DCS asserted that
Mother had “failed to recognize early signs of malnutrition” and had
“failed to take appropriate action to ensure the child’s wellbeing.” DCS also
alleged that Mother neglected M.P. because of domestic violence between

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Mother and M.P.’s father.1 Father was arrested and incarcerated for
domestic violence in 2023 after strangling Mother during a dispute
concerning Mother’s ability to parent M.P. Even after Father was released
from jail, Mother allowed him to have contact with M.P. at the family
residence in violation of the release conditions in Father’s criminal case.

¶9 The court adjudicated M.P. dependent after Mother did not
contest the dependency allegations. DCS requested that the juvenile court
set a concurrent case plan goal of both family reunification and severance
and adoption. The court instead set an initial case plan with the goal of
family reunification and ordered DCS to provide services to address
Mother’s neglect of M.P., as well as the domestic violence between Mother
and M.P.’s father.

¶10 Although the juvenile court found that Mother was
participating in services and complying with the case plan at later review
hearings, DCS continued to express concerns about her ability to
understand and respond to M.P.’s needs. DCS reported that Mother could
not identify safety risks related to her relationship with M.P.’s father and
failed to recognize the power and control dynamics present in that
relationship. As a result, DCS filed a petition to terminate the parent-child
relationship, alleging that Mother had neglected M.P. by “causing the child
to have severe malnourishment while in her care and custody,” under
§ 8-533(B)(2). After a multi-day hearing, the court found, in a
comprehensive order containing detailed findings and conclusions, that
DCS had proven this ground and determined that termination was in M.P.’s
best interests—subsequently terminating Mother’s parental rights.

¶11 In evaluating the § 8-533(B)(2) ground, the court turned to
§ 8-201(25)(a) for guidance on the meaning of “neglect.” That statute
defines “neglect,” in pertinent part, as “[t]he inability or unwillingness of a
parent . . . of a child to provide that child with supervision, food, clothing,
shelter or medical care if that inability or unwillingness causes substantial
risk of harm to the child’s health or welfare.” A.R.S. § 8-201(25)(a). The
court also noted that § 8-533(B)(2) uses the past tense “neglected,”
suggesting that past neglect could be grounds for termination even in the
absence of current neglect.

1 M.P.’s father’s parental rights were also terminated, but he is not a party
to this appeal.
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¶12 Applying the relevant law to the evidence presented at the
termination hearing, the court concluded that “Mother’s neglect caused a
substantial risk of harm to [M.P.’s] health and well-being.” The court noted
that during this time Mother and M.P.’s father were the child’s sole
caregivers. The court further noted that M.P. lost nearly half of her body
weight over a two-month period, despite the absence of any medical
condition that could explain such drastic weight loss. Mother was aware
that she was producing limited breast milk but still failed to take steps to
seek timely medical care for M.P. As a result of Mother’s inaction, the court
determined that she “failed to provide the basic necessities for [M.P.],
leaving her so severely malnourished and developmentally delayed that
she had no gross motor functions and required hospitalization.”

¶13 Accordingly, the juvenile court found that Mother was either
unable or unwilling to provide her child with proper nourishment or timely
medical care, creating a substantial risk of harm to the child’s health and
welfare. Alternatively, the court also found that Mother failed to protect
her child from another person who was unable or unwilling to provide
proper nourishment or medical care, likewise placing the child at
substantial risk.

¶14 Turning to the best-interests analysis, the court considered
two key factors in determining whether terminating Mother’s parental
rights would best serve M.P. First, the court concluded that M.P. would
benefit from being “freed for adoption.” The court highlighted Mother’s
“documented history of neglecting [M.P.’s] needs” and the fact that “[M.P.]
was close to death at the time she was admitted to the hospital.” Given that
M.P. was thriving in a prospective adoptive placement, the court found that
terminating Mother’s parental rights was in M.P.’s best interests.

¶15 Next, the court found that continuing the parental
relationship would harm M.P. It underscored that M.P. had “suffered
severe malnourishment” due to Mother’s neglect and that she failed to
grasp “the severity of M.P.’s condition.” The court further concluded that,
given the parents’ history of domestic violence, it was not in M.P.’s best
interests to be denied a secure and stable adoptive home that was meeting
her needs.

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¶16 In determining M.P.’s best interests, the court “specifically
considered [Mother’s] completion of various reunification services.” While
it acknowledged that Mother had participated in multiple therapeutic
programs aimed at improving Mother’s mental and physical well-being
and preparing her to protect both herself and M.P. from M.P.’s father, the
court ultimately concluded that M.P. remained at risk of harm if returned
to Mother’s care.

¶17 The court rejected Mother’s claim that she could safely care
for M.P. based on her newfound insight into her relationship with M.P.’s
father and their history of domestic violence. It acknowledged that Mother
had complied with the “reunification services and shown some benefit,”
but found that she had “not demonstrated any significant behavioral
changes or understanding of how to protect [M.P.] from future abuse or
neglect[,] including domestic violence.” Accordingly, the court determined
that if returned to Mother’s care, M.P. “would be at risk of continued
neglect and/or domestic violence between her parents.” The court thus
concluded that “[M.P.’s] home was a potentially lethal environment due to
the neglect that led to her hospitalization and the domestic violence she was
exposed to. Mother has not benefited from her reunification services, and
[M.P.] would remain at risk if left in Mother’s unsupervised care.”

¶18 The juvenile court also based its decision in part on Mother’s
history of providing untruthful answers about her care of M.P. In its
termination order, the court specifically noted Mother’s testimony that she
herself had suffered from malnourishment in the months before M.P.’s
hospitalization. However, this statement was contradicted by photographs
of Mother taken between June and September 2023, which showed no
evidence of malnourishment or significant weight loss.

¶19 In a divided opinion, the court of appeals vacated the juvenile
court’s order terminating parental rights, finding that the court “erred in
failing to consider [Mother’s] participation in and benefit from
services . . . in its finding of parental unfitness under § 8-533(B)(2).” In re
M.P., 260 Ariz. 234, 243 ¶ 29 (App. 2025). The court explained that when
DCS seeks to terminate a parent’s rights solely on the basis of neglect while
providing services under a court-ordered family reunification plan, the
parent’s engagement with and benefit from those services “must be
considered as part of the court’s determination of parental unfitness.” Id.

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at 244 ¶ 29. In evaluating the juvenile court’s best-interests analysis,
however, the court indicated that this determination “requires no
consideration of a parent’s success in [rehabilitative] services.” Id. at 243
¶ 27.

¶20 We granted review to clarify the appropriate inquiry when
making a termination finding under § 8-533(B)(2)—an issue of statewide
importance. We have jurisdiction under article 6, section 5(3) of the
Arizona Constitution.

DISCUSSION

I.

¶21 Juvenile courts apply a two-step analysis in determining
whether to terminate a parent-child relationship. Timothy B., 252 Ariz.
at 474 ¶ 13. First, the court must decide whether clear and convincing
evidence supports at least one ground for termination listed in § 8-533(B).
Id. Second, the court must determine whether a preponderance of the
evidence supports finding that termination is in the child’s best interests.
Id.

¶22 We will affirm a juvenile court’s termination order unless it is
clearly erroneous. See Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 579–80
¶ 10 (2021). A decision is clearly erroneous if, as a matter of law, “no one
could reasonably find the evidence to be clear and convincing.” Brionna J.
v. Dep’t of Child Safety, 255 Ariz. 471, 479 ¶ 31 (2023) (quoting Murillo v.
Hernandez, 79 Ariz. 1, 9 (1955)).

II.

¶23 Resolving whether the court of appeals erred by requiring the
juvenile court to consider “all relevant evidence”—including Mother’s
“participation in and benefit from services”—when determining parental
unfitness under § 8-533(B)(2) presents a question of statutory
interpretation. The interpretation of a statute presents a question of law,
which we review de novo. Brionna J., 255 Ariz. at 476 ¶ 17.

¶24 “Our task in statutory construction is to effectuate the text if
it is clear and unambiguous.” In re Drummond, 257 Ariz. 15, 18 ¶ 5 (2024)

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(quoting BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19 ¶ 9
(2018)). To effectuate the text “we interpret statutes according to their plain
language,” id., giving “words ‘their ordinary meaning unless it appears
from the context or otherwise that a different meaning is intended,’” State
v. Luviano, 255 Ariz. 225, 228 ¶ 10 (2023) (quoting Arizona ex rel. Brnovich v.
Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 541 ¶ 7 (2018)).

¶25 As relevant here, § 8-533(B)(2) provides, “[e]vidence
sufficient to justify the termination of the parent-child relationship shall
include . . . [t]hat the parent has neglected or wilfully abused a child.”2
Because § 8-533(B)(2) uses the phrase “has neglected,” past neglect may
support termination. See Jade K. v. Loraine K., 240 Ariz. 414, 417–19 ¶¶ 12–20
(App. 2016) (past neglect may serve as a basis for termination). Thus, under
the statute’s plain language, termination is supported if the juvenile court
finds by clear and convincing evidence that the parent neglected the child
by being unable or unwilling to provide basic necessities, thereby placing
the child’s health or welfare at substantial risk of harm. See A.R.S.
§ 8-201(25)(a) (defining “neglected” as “[t]he inability or unwillingness of a
parent . . . of a child to provide that child with supervision, food, clothing,
shelter or medical care if that inability or unwillingness causes substantial
risk of harm to the child’s health or welfare”).

¶26 At this point in the determination, the statute requires proof
only of the enumerated elements—it does not require the juvenile court to
also consider whether the parent has since participated in or benefited from
rehabilitative services. Rather, that consideration is reserved for the
best-interests analysis that follows. See infra ¶ 37. Additionally, in 1998, the
Legislature amended § 8-533(B) to remove “the availability of reunification
services to the parent and the participation of the parent in these services”
from the evidence to consider when finding the statutory ground satisfied.
See 1998 Ariz. Sess. Laws ch. 276, § 13 (2d Reg. Sess.). Section 8-533(B)’s
evolution thus confirms that the statutory grounds must be considered
without regard to a parent’s reunification services, unless a specific
subsection directs otherwise. Subsection (B)(2) contains no such directive.
See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 256 (2012) (“If the [L]egislature amends or reenacts a provision other

2 DCS did not allege that Mother wilfully abused M.P. Thus, the issue in
this case is whether Mother “neglected” M.P.
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than by way of a consolidating statute or restyling project, a significant
change in language is presumed to entail a change in meaning.”).

¶27 Accordingly, we are unpersuaded by the court of appeals’
majority’s suggestion that the statutory definition of “neglect” requires
consideration of Mother’s later education and conduct. See In re M.P.,
260 Ariz. at 242 ¶ 23. As the court of appeals’ dissent observed, the majority
cited no statutory language supporting its analysis, and the definition of
“neglect” “unambiguously does not require consideration of a parent’s
subsequent education and conduct.” Id. at 247 ¶ 52 (Sklar, J., dissenting).

¶28 By requiring the juvenile court to consider a parent’s
subsequent conduct, it inserted an additional element into the statute—an
action beyond the court’s authority. See Orca Commc’ns Unlimited, LLC v.
Noder, 236 Ariz. 180, 182 ¶ 11 (2014) (“[I]t is not the function of courts to
rewrite statutes.” (quoting City of Phoenix v. Butler, 110 Ariz. 160, 162
(1973))); see also Brionna J., 255 Ariz. at 478 ¶ 27 (“[T]o the extent that the
court of appeals imposed an additional showing of parental unfitness
outside of § 8-533(B)(8)(c)’s elements, it misinterpreted the statute.”).

¶29 As discussed above, we derive a statute’s meaning by
“determin[ing] the plain meaning of the words the [L]egislature chose to
use.” In re Drummond, 257 Ariz. at 18 ¶ 5 (quoting Columbus Life Ins. Co. v.
Wilmington Tr., N.A., 255 Ariz. 382, 385 ¶ 11 (2023)). Faithful adherence to
the plain meaning of the Legislature’s words requires us to conclude that
the § 8-533(B)(2) ground, as alleged in this case, is established when the
juvenile court finds based on clear and convincing evidence that a parent
has neglected her child due to her inability or unwillingness to provide
basic needs, thereby placing the child’s health or welfare in substantial risk
of harm. There is no statutory mechanism to negate proven past neglect.

III.

¶30 The court of appeals’ majority further concluded that, in cases
alleging neglect under § 8-533(B)(2), the juvenile court must consider “all
relevant evidence,” In re M.P., 260 Ariz. at 241 ¶ 20, including Mother’s
“participation in and benefit from services,” during the initial statutory
unfitness inquiry, id. at 243 ¶ 29. It asserted that excluding such evidence
would not “comport with our due process principles.” Id. at 242 ¶ 20. That
assertion is incorrect.
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¶31 Over twenty years ago, this Court held that the grounds for
termination listed in § 8-533(B) are synonymous with parental unfitness
and that a juvenile court’s finding of a termination ground under § 8-533(B)
satisfies due process. See Kent K. v. Bobby M., 210 Ariz. 279, 285–86 ¶¶ 31–32
(2005). More recently, in Alma S. v. Deparment of Child Safety, we “explicitly
reiterate[d]” that holding, explaining that when a juvenile court finds by
clear and convincing evidence that a statutory ground for termination
exists, a parent’s due process rights are satisfied. 245 Ariz. 146, 150 ¶ 9
(2018). The court of appeals’ majority erroneously concluded that due
process requires more based on a misapprehension of Sandra R. v.
Department of Child Safety, 248 Ariz. 224 (2020).

¶32 In Sandra R., we considered the findings a juvenile court must
make when terminating parental rights under § 8-533(B)(2) with respect to
a child who has not been abused or neglected. Id. at 225 ¶ 1. We concluded
that due process requires the court to determine, during the parental
unfitness inquiry, that the child faces a “risk of harm” before parental rights
may be terminated. Id. at 228 ¶ 17. We further explained that this
requirement is consistent with prior decisions protecting due process by
establishing a nexus between the abuse of one child and termination
proceedings involving a child for whom no abuse or neglect has been
shown. Id. ¶¶ 15, 17.

¶33 The court of appeals’ dissent here rightly emphasized that the
majority “glides past this distinction” in its analysis. In re M.P., 260 Ariz.
at 246 ¶ 45 (Sklar, J., dissenting). Drawing on Sandra R., which requires due
process to include “a demonstrable connection between the ground for
termination and the harm or risk of harm to a child,” the court of appeals’
majority held that a juvenile court’s failure to consider parental fitness
during the initial unfitness inquiry both violates due process and
contradicts the Supreme Court’s decision in Santosky v. Kramer, 455 U.S. 745
(1982). In re M.P., 260 Ariz. at 241–42 ¶¶ 19–20 (quoting Sandra R., 248 Ariz.
at 229 ¶ 24). Again, that conclusion does not withstand scrutiny.

¶34 The majority misconstrues our jurisprudence on this issue.
First, as previously discussed, § 8-533(B)(2)’s plain language does not
require the juvenile court to consider a parent’s subsequent education or
conduct when determining parental unfitness. See supra ¶ 27. Second, the

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majority misreads Sandra R. There, we held that when the state seeks to
terminate a parent’s right to a child who has not been abused under
§ 8-533(B)(2), the “risk of harm” to the child must be proven by clear and
convincing evidence to satisfy due process and Santosky. Sandra R., 28 Ariz.
at 229 ¶ 24. The majority both distorts that holding and misapplies it here.
In this case, unlike the child in Sandra R., M.P. was neglected. 3

¶35 Finally, the court of appeals’ majority erroneously broadens
the due process requirements for termination proceedings. It cites Santosky
to argue that excluding relevant evidence—Mother’s participation in and
benefit from services—denies due process. See In re M.P., 260 Ariz. at 242
¶ 20. That reading stretches Santosky too far. In Kent K., we clarified that
“within the context of Arizona’s legislative scheme [for terminating
parental rights], Santosky mandates only that the findings of the statutory
grounds for termination be supported by clear and convincing evidence.”
210 Ariz. at 286 ¶ 32. Section 8-533(B) requires findings of parental
unfitness by clear and convincing evidence, providing the “fundamentally
fair procedures” necessary to satisfy due process. Id. at 284 ¶ 24 (quoting
Santosky, 455 U.S. at 754). The majority cannot overlook this Court’s clear
precedent: compliance with § 8-533(B) fully satisfies due process. Any
effort to circumvent this clear holding is misguided.

¶36 This conclusion also undercuts the court of appeals’
majority’s related assertion that the juvenile court’s alleged failure to
consider Mother’s performance in reunification services renders its initial
statutory unfitness findings illusory. See In re M.P., 260 Ariz. at 243 ¶ 27.
By determining that Mother “neglected” M.P., the juvenile court fulfilled
the purpose of § 8-533(B)(2) and established parental unfitness. Once that
determination was made, Mother’s performance in and benefit from
reunification services became relevant—not to unfitness, but to the
subsequent inquiry: whether M.P.’s interest in maintaining a relationship
with Mother is outweighed by the potential harm of remaining with an
unfit parent. The majority’s conclusion here implies that completing
reunification services guarantees the restoration of parental rights. This
reasoning is incorrect and inconsistent with § 8-533(B)(2) and our case law.

3 In September 2023, Mother pleaded guilty to attempted child abuse.
Because of this, Mother has never raised that M.P.’s neglect did not occur.
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IV.

¶37 Once a juvenile court finds by clear and convincing evidence
that a ground for termination under § 8-533(B) has been established, its
inquiry shifts to determine whether a preponderance of the evidence
supports a finding that termination is in the child’s best interests. Timothy
B., 252 Ariz. at 474 ¶ 13. Regarding the best-interests analysis, this Court
has instructed that “we can presume that the interests of the parent and
child diverge because the court has already found the existence of one of
the statutory grounds for termination by clear and convincing evidence.”
Alma S., 245 Ariz. at 150 ¶ 12 (quoting Kent K., 210 Ariz. at 286 ¶ 35). Thus,
once a juvenile court “finds ‘that a parent is unfit, the focus shifts to the
interests of the child as distinct from those of the parent.’” Id. (quoting Kent
K., 210 Ariz. at 285 ¶ 31).

¶38 Consistent with this framework, this Court has held that
termination is in the child’s best interests if either of the following
conditions are met: (1) the child will benefit from severance, or (2) the child
will be harmed if severance is denied. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 16 (2016). However, determining whether a child would be
harmed by the continuation of the parental relationship or would benefit
from its termination does not allow courts to disregard other relevant
evidence bearing on the child’s best interests. See Lawrence R. v. Ariz. Dep’t
of Econ. Sec., 217 Ariz. 585, 588 ¶ 11 (App. 2008) (“While a [factfinder] may
find that severance is in a child’s best interests if the child is found to be
adoptable, the [factfinder] is not required to do so.”). Although the
best-interests inquiry ultimately centers on the child, juvenile courts should
nonetheless consider a parent’s rehabilitation efforts as part of that analysis.
See Alma S., 245 Ariz. at 151 ¶ 15. Accordingly, we reiterate the directive set
forth in Alma S.: juvenile courts should take a parent’s rehabilitation efforts
into account when conducting the best-interests analysis. This review
ensures that the process set forth in § 8-533(B) for terminating parental
rights comports with constitutional requirements.

¶39 In making its best-interests determination in this case, the
juvenile court noted Alma S.’s admonition and “specifically considered
[Mother’s] completion of various reunification services.” The court
acknowledged that Mother had been compliant with those services.
However, it ultimately found that although Mother had shown some

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benefit, she “[had] not demonstrated any significant behavioral changes or
understanding of how to protect [M.P.] from future abuse or neglect,
including domestic violence.” The court therefore concluded that “[M.P.]
remains at risk of harm if returned to [Mother’s] care.” See supra ¶¶ 16–18.

¶40 Based on this evidence, the court found that termination
would benefit M.P., noting Mother’s history of neglecting M.P.’s needs and
the fact that M.P. was near death when admitted to the hospital. The court
further determined that M.P. would be harmed if Mother’s parental rights
were not terminated, as M.P. had suffered severe malnourishment due to
Mother’s neglect and Mother’s failure to comprehend the severity of M.P.’s
condition.

¶41 As an appellate court, we owe deference to the juvenile
court’s factual findings and will accept them if reasonable evidence and
inferences support them. See Demetrius L., 239 Ariz. at 3 ¶ 9. Additionally,
we do not reweigh the evidence. See Alma S., 245 Ariz. at 151 ¶ 18.

¶42 The court of appeals’ majority erred by failing to follow these
established standards. In discussing the juvenile court’s best-interests
findings, the majority acknowledged that the court “considered [Mother’s]
compliance with the case plan and her benefit from services.” In re M.P.,
260 Ariz. at 243 ¶ 27. 4 Although the majority recognized that evaluating
Mother’s participation in and benefit from services was “proper” as part of
the best-interests analysis, it nevertheless “question[ed] whether
consideration of a parent’s benefit from services under the best-interests
analysis is sufficient.” Id. The majority doubted that assessing Mother’s
rehabilitation efforts was necessary, reasoning that “[t]he best-interests
analysis can be proven in two ways—by showing that the child will benefit
from severance or will be harmed if severance is denied.” Id. Thus, it
concluded that a best-interests finding may rest on evidence that the child
is adoptable or in a more stable environment, without requiring evaluation
of the parent’s progress in services. Id. This conclusion is simply incorrect.
As previously noted, a juvenile court’s best-interests determination must

4 Although the majority stated that the juvenile court considered Mother’s
participation and benefit from services, later in the same paragraph it
inexplicably concluded that the “best-interests requirement was met in this
case without consideration of [Mother’s] participation in services.” In re M.P.,
260 Ariz. at 243 ¶ 27 (emphasis added).
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account for a parent’s progress toward rehabilitation. See Alma S., 245 Ariz.
at 151 ¶ 15. Having mistakenly concluded that rehabilitation efforts are an
optional consideration under the best-interests analysis, the majority then
asserted that rehabilitation efforts, as a necessary “part of the termination
calculus,” must inform “the court’s determination of parental unfitness.”
In re M.P., 260 Ariz. at 243 ¶¶ 27, 29. Again, as previously explained, that
assertion is incorrect. See supra ¶ 28.

¶43 Viewing the record in the light most favorable to sustaining
the court’s best-interests finding, Demetrius L., 239 Ariz. at 2 ¶ 2, and
applying our deferential standard of review, see id. at 3 ¶ 9, we conclude
that the finding is supported by sufficient evidence. M.P. was placed with
a relative who is a prospective adoptive placement, where she is thriving
and her needs are being met. In assessing the totality of the circumstances
for its best-interests determination, the juvenile court further found that
Mother failed to benefit from reunification services and that M.P. remains
at risk in Mother’s care.

V.

¶44 Although our dissenting colleague reprises objections he has
expressed in prior writings concerning Arizona’s parental-termination
statute, 5 neither those objections nor the authorities on which he relies
justify departing from well-settled Arizona law.

¶45 The dissent principally argues that Arizona’s termination
framework is “so far removed from federal procedural and substantive due
process requirements” that it has become a “due process-free zone.” Infra
¶¶ 88, 93. That characterization does not withstand even a cursory
examination of Arizona law and controlling federal precedent.

5 See Alma S., 245 Ariz. at 152–56 ¶¶ 24–39 (Bolick, J., concurring in result);
Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 92–100 ¶¶ 33–73 (2019) (Bolick,
J., dissenting); Sandra R., 248 Ariz. at 231 ¶ 34 (2020) (Bolick, J., concurring
in result); Jessie D., 251 Ariz. at 583–84 ¶¶ 31–35 (Bolick, J., concurring in
part and in judgment); Timothy B., 252 Ariz. at 479–81 ¶¶ 36–49 (Bolick, J.,
concurring in result); Brionna J., 255 Ariz. at 481–83 ¶¶ 49–60 (Bolick, J.,
concurring in result).

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

¶46 Because the dissent relies heavily on Santosky, we begin there,
focusing on the issue the Supreme Court was tasked with and what it
actually held. In Santosky, the state of New York sought to terminate the
parents’ rights to their children. 455 U.S. at 751. Under New York law,
parental rights could be terminated upon proof that the children were
permanently neglected, a showing the state was required to establish by a
preponderance of the evidence. Id. at 747. Throughout the state-court
proceedings, the parents challenged the constitutionality of the
preponderance-of-the-evidence standard. Id. at 751–52. The Supreme
Court granted review to determine whether that standard satisfied due
process. Id. at 750–51.

¶47 The Court recognized that a parent’s interest in the care,
custody, and management of his or her child is a fundamental liberty
interest that does not evaporate merely because the parent has not been a
model parent or has lost temporary custody to the state. Id. at 753. It further
explained that, before the state may terminate parental rights, it must
provide parents with “fundamentally fair procedures.” Id. at 753–54.

¶48 The Court therefore considered what the Due Process Clause
requires before the state may permanently terminate that interest.
Applying the three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), 6 it held that New York’s
preponderance-of-the-evidence standard was “inconsistent with due
process.” Santosky, 455 U.S. at 758. It further concluded that due process
requires proof of parental unfitness by clear and convincing evidence
because that burden “strikes a fair balance between the rights of the natural
parents and the State’s legitimate concerns.” Id. at 769.

¶49 Mindful of Santosky’s bottom line, this Court has held that,
under Arizona’s statutory scheme, “Santosky mandates only that the
findings of the statutory grounds for termination be supported by clear and

6 Mathews requires consideration of: “[f]irst, the private interest that will be

affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including . . . the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.”
424 U.S. at 335.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Opinion of the Court

convincing evidence.” Kent K., 210 Ariz. at 286 ¶ 32 (emphasis added).
Arizona’s statutory framework thus faithfully implements the
constitutional principles articulated in Santosky, which integrated the
balancing framework established in Mathews. The dissent is therefore
mistaken in asserting that today’s opinion fails to engage those
constitutional principles.

¶50 Recognizing those principles, however, does not mean
parental rights are without limits. To be sure, parents possess a
constitutionally protected liberty interest in raising their children, but
“parental rights are not absolute.” Id. at 284 ¶ 24. When a child’s health or
welfare is seriously jeopardized, the state has both the authority and the
responsibility to act on the child’s behalf. See In re the Appeal in Cochise Cnty.
Juv. Action No. 5666-J, 133 Ariz. 157, 161 (1982). Thus, “[a] court may order
severance of parental rights under certain circumstances, so long as the
parents whose rights are to be severed are provided with ‘fundamentally
fair procedures’ that satisfy due process requirements.” Kent K., 210 Ariz.
at 284 ¶ 24 (quoting Santosky, 455 U.S. at 754).

¶51 Due process is satisfied when the state proves parental
unfitness by clear and convincing evidence, as Santosky requires, and the
case otherwise proceeds fairly. Here, the juvenile court found by clear and
convincing evidence that Mother neglected M.P. by failing to provide her
with basic necessities, a failure that nearly cost M.P. her life, thereby placing
M.P.’s future health and welfare at substantial risk of harm. Although
parents possess a fundamental right to direct their children’s upbringing,
that right does not extend to conduct that deprives a child of life’s basic
necessities and places the child at substantial risk of death or serious
physical harm.

¶52 It is this unfitness determination—not the later best-interests
stage—that supplies the constitutional safeguards a parent is owed, a point
the dissent’s critique of Arizona’s framework misses. The dissent argues
that the framework is deficient because it relegates consideration of the
parent’s rights to the best-interests analysis. Infra ¶¶ 106–07. Not so. Once
the state has carried its clear and convincing burden under Santosky, the
parent has already received all process demanded by the Constitution.
From that point forward, the state bears both the responsibility and

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

authority to act in the child’s interest—the parent’s constitutional stake in
the proceeding has already been protected, not deferred.

¶53 The dissent next contends that Arizona’s
parental-termination framework ignores a parent’s rehabilitative efforts.
Infra ¶ 105. The juvenile court’s findings in this case demonstrate
otherwise. We briefly recount those findings because they directly address
the dissent’s argument.

¶54 The court found that Mother had allowed M.P. to slowly
starve. At seven months old, M.P. weighed only seven pounds. Her eyes
were sunken, loose folds of skin hung from her body, and her ribs and other
bones protruded. She had suffered bone demineralization, lost gross motor
function, and experienced brain atrophy. The court further found that,
absent immediate lifesaving treatment when finally seen, M.P. would have
died. Although M.P. survived, the serious physical harm necessitated a
two-week hospital stay and then placement in a certified medically fragile
foster home to meet her ongoing medical needs.

¶55 The juvenile court ordered reunification services designed to
address Mother’s neglect of M.P. and the domestic violence between the
parents. DCS provided those services. In determining whether termination
was in M.P.’s best interests, the court evaluated Mother’s participation in
the court-ordered services. Although the court acknowledged that Mother
had complied with some reunification services, it nevertheless found that
she had not “demonstrated any significant behavioral changes or
understanding of how to protect [M.P.] from future abuse or neglect,
including domestic violence” and therefore concluded that “[M.P.] remains
at risk of harm if returned to her [Mother’s] care.” The evidence presented
at the termination hearing supported those findings. Mother offered
contrary testimony, but the juvenile court did not find her credible. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002) (“The
juvenile court, as the trier of fact in a termination proceeding, is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings.”).

¶56 Quoting Department of Economic Security v. Mahoney, 24 Ariz.
App. 534, 537 (1975) in its termination order, the juvenile court specifically
recognized that “termination of the parent-child relationship should not be

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

considered a panacea but should be resorted to only when concerted effort
to preserve the relationship fails.” It nevertheless concluded that
termination was in M.P.’s best interests. Both Arizona’s statutory
framework and the juvenile court’s findings in this case directly address the
concern the dissent claims Arizona courts ignore—whether a parent’s
conduct and progress in reunification services demonstrate an ability to
safely parent the child in the future.

¶57 This is not a case in which parental rights were terminated
solely because of a single past act divorced from present circumstances or
future risk. To the contrary, the juvenile court considered Mother’s
rehabilitative efforts, acknowledged the extent of her participation in
services, evaluated whether she had meaningfully benefited from those
services, and ultimately found that M.P. would remain at risk if returned to
Mother’s care. 7

¶58 The dissent also contends that this opinion should address the
parental rights codified in A.R.S. § 1-601. Infra ¶ 101. This statute
recognizes a parent’s fundamental right to direct their child’s upbringing
and subjects any state infringement of that right to strict
scrutiny—requiring a compelling interest of the highest order, narrow
tailoring, and no less restrictive alternative. But whether § 1-601 applies
here is not a question properly before us. We do not address it because no

7 The dissent also cites Trisha A., 247 Ariz. 84, as support for its contention
that Arizona’s parental-termination framework violates due process. Infra
¶ 93 n.8. Our dissenting colleague asserts that the parent’s rights in that
case were “permanently severed in a mere 25 minutes” after she failed to
appear for a court hearing. Id. This characterization materially understates
the circumstances that led to the termination order. The mother’s parental
rights were not terminated “in a mere 25 minutes.” Rather, they were
terminated after a sixteen-month dependency during which DCS offered
extensive reunification services and the mother failed to meaningfully
engage in those services. Trisha A., 247 Ariz at 86 ¶¶ 3–6. The missed
hearing did not itself furnish the basis for termination; it occurred only after
several months of unsuccessful reunification efforts and did not relieve
DCS of its obligation to prove parental unfitness by clear and convincing
evidence. Far from illustrating a denial of due process, Trisha A.
demonstrates the procedural protections Arizona law affords before
parental rights may be terminated.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Opinion of the Court

party has argued the applicability of that statute, and the court of appeals
likewise did not address it. Our role is to judge, not to advocate. That
approach is consistent with State ex rel. Brnovich v. City of Tucson, where this
Court explained that “[w]e generally do not reach out to decide important
constitutional issues or to upset established precedent when no party has
raised or argued such issues.” 242 Ariz. 588, 599 ¶ 45 (2017); see also State v.
Valenzuela, 239 Ariz. 299, 306 ¶ 21 (2016) (declining to address issues “[t]he
parties did not brief”); State v. Martinez, 230 Ariz. 208, 212 ¶ 10 n.2 (2012)
(declining to address Arizona constitutional issues “not separately
argued”). The United States Supreme Court has articulated the same
principle. In United States v. Sineneng-Smith, the Court explained that our
adversarial system “rel[ies] on the parties to frame the issues for decision
and assign[s] to courts the role of neutral arbiter of matters the parties
present.” 590 U.S. 371, 375 (2020) (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)). It further observed that courts “normally decide
only questions presented by the parties.” Id. at 376 (quoting United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial
of reh’g en banc)). Consistent with these settled principles of judicial
restraint, we decline to decide sua sponte an issue neither party has raised
or briefed.

¶59 At bottom, the dissent contends that Arizona’s
parental-termination framework fails to provide the fundamentally fair
procedures required by due process. It does not. Arizona’s statutory
framework incorporates the constitutional protections required by
Santosky, and the juvenile court faithfully applied that framework here.
Because Mother received the fundamentally fair procedures the Due
Process Clause requires, we respectfully reject the dissent’s contrary
assertions.

CONCLUSION

¶60 For the foregoing reasons, we vacate the court of appeals’
opinion and affirm the juvenile court’s judgment terminating Mother’s
parental rights.

19

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Chief Justice Timmer, Concurring

Timmer, C.J., concurring in the result:

¶61 I concur entirely with the Court’s opinion. I write separately
to stress my view that A.R.S. § 8-533(B)(2) implicitly authorizes termination
of parental rights based on past neglect or willful abuse only when that past
conduct itself demonstrates that a parent is presently unfit.

¶62 Section 8-533(B)(2) provides a basis for terminating the
parent-child relationship if “the parent has neglected or wilfully abused a
child.” Read broadly, that provision could be understood to permit
termination based on a single past incident, however remote in time. The
statute itself defines “neglect” to require conduct that “causes substantial
risk of harm to the child’s health or welfare,” A.R.S. § 8-201(25)(a), but
although that definition certainly speaks to risk at the time of the conduct,
it does not expressly address whether the risk must persist to the time
termination is sought. Without that construction, however, the statute
would authorize severance for an act of neglect committed, say, a decade
earlier, even if the child is no longer at risk of harm and the parent has long
since become, by every measure, fit. That construction cannot be reconciled
with the constitutional protections owed to the parent-child relationship,
and we have not adopted it.

¶63 The liberty interest of parents in the care, custody, and
management of their children is “perhaps the oldest of the fundamental
liberty interests” existing under the Due Process Clause. Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). Our Legislature has codified that
principle, declaring this right “fundamental” and prohibiting infringement
absent a “compelling governmental interest as applied to the child
involved” that “is of the highest order, is narrowly tailored and is not
otherwise served by a less restrictive means.” A.R.S. § 1-601(A)–(B). The
State’s interest in protecting children from unfit parents is unquestionably
compelling, but § 1-601’s “as applied to the child involved” language
requires that interest to be assessed with respect to this child, now.
Termination is the most drastic infringement the state can impose. It must
therefore rest on a finding of present unfitness, not merely proof of past
misconduct. See Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The
fundamental liberty interest of natural parents . . . does not evaporate
simply because they have not been model parents . . . .”).

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Chief Justice Timmer, Concurring

¶64 Our cases accommodate this principle by construing the
grounds in § 8-533(B) as “synonymous with [parental] unfitness” because
they “demonstrate a parent’s inability ‘to properly parent his/her child.’”
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶¶ 9–10 (2018) (quoting
Roberto F. v. Ariz. Dept. of Econ. Sec., 232 Ariz. 45, 54 ¶ 42 (App. 2013)). A
statutory ground that did not equate to present unfitness would not satisfy
due process. See Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 476 ¶ 19
(2023) (“Due process requires that the parent-child relationship not be
terminated unless the parent is unfit as a matter of law.”); Alma S., 245 Ariz.
at 150 ¶ 9 (“If a statutory ground were not synonymous with unfitness, a
contested severance based on such ground would be constitutionally
infirm.”).

¶65 Our opinion in Sandra R. v. Department of Child Safety,
248 Ariz. 224 (2020), reinforces this view. There, we concluded that when a
parent has neglected or abused one child, § 8-533(B)(2) authorizes
termination as to that parent’s other, non-abused children only if “the
juvenile court [finds] during the parental unfitness inquiry, by clear and
convincing evidence, that there is a risk of harm to those children.”
248 Ariz. at 228 ¶ 17. The same logic applies to the previously abused or
neglected child. Undeniably, past harm to that child can itself evidence
present risk. But past harm does not necessarily establish present unfitness,
and the constitutional concern animating Sandra R., that termination rest on
a current, proven risk, does not turn on which child suffered the earlier
conduct. Thus, in my view, a court may only find the existence of past
neglect or abuse under § 8-533(B)(2) as grounds for termination if that
neglect or abuse places the child at present risk of substantial harm.
Otherwise, termination would punish the parent for a past act rather than
protect the child from present danger and would not satisfy the
“compelling governmental interest as applied to the child involved” that
§ 1-601(B) demands.

¶66 This understanding does not disturb our holding in Alma S.
that a parent’s rehabilitation efforts are considered at the best-interests
stage. 245 Ariz. at 151 ¶ 15. The two inquiries ask different questions and
put remediation evidence to different uses. The unfitness inquiry is
backward-looking and asks whether the past neglect or abuse, considering
its severity, recency, and surrounding circumstances, demonstrates that the
parent still cannot safely parent the child. Evidence that conditions have

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Chief Justice Timmer, Concurring

materially changed since the neglect or abuse occurred bears on that
question, not because the parent earns credit for effort, but because such
evidence affects what the past conduct proves about present capacity. The
court considers remediation evidence at this stage only for what it reveals
about the probative force of the past conduct.

¶67 The best-interests inquiry, by contrast, is forward looking.
Alma S. situates the consideration of rehabilitation efforts at this stage. Id.
There the juvenile court asks whether, even given present unfitness,
severance serves the child, considering factors such as the parent’s ongoing
engagement with services and the strength of the parent–child bond. The
court considers the parent’s efforts at this stage as expressions of
commitment and as predictors of future capacity, not as evidence of what
past conduct proves.

¶68 The line is thus between what remediation evidence proves
about the parent’s present ability to safely parent the child—relevant at the
unfitness stage—and what those efforts reflect about the parent’s
commitment and likely trajectory—reserved for the best-interests stage.
Drawing the line here preserves Alma S.’s allocation while respecting the
constitutional requirement that a finding of parental unfitness rests on
present, not historical, fact. The same evidence may be relevant at both
stages, but the court’s use of it differs. At the unfitness stage, the question
is what the evidence shows about the present force of the past conduct, and
at the best-interests stage, the question is what the evidence shows about
the parent’s commitment and trajectory going forward.

¶69 I do not read the majority’s opinion as authorizing a different
result. The majority correctly concludes that once a parent has been found
unfit under § 8-533(B)(2), the statute “does not require the juvenile court to
also consider whether the parent has since participated in or benefited from
rehabilitative services.” See supra ¶ 26. But that conclusion presupposes
that the past neglect or abuse itself demonstrates the parent’s present
inability to safely parent the child. Where it does not, § 8-533(B)(2) does not
supply a ground for termination, and the Constitution forbids one. Here,
the record establishes by clear and convincing evidence that Mother’s past
neglect was sufficiently severe and her remediation sufficiently limited to
demonstrate a present risk of substantial harm to M.P. The § 8-533(B)(2)

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Chief Justice Timmer, Concurring

ground is therefore satisfied, and I join the majority in affirming the juvenile
court’s judgment terminating Mother’s rights.

23

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

Cruz, J., concurring:

¶70 I join the Court’s opinion in full. I write separately, and at
greater length than I ordinarily would, because our dissenting colleague
raises constitutional objections that deserve a direct answer on their own
terms. The dissent contends that Arizona’s severance framework has
become a “due process-free zone” that ignores the fundamental character
of parental rights, declines to apply strict scrutiny, disregards A.R.S.
§ 1-601, never performs the balancing required by Mathews v. Eldridge, 424 U.S. 319 (1976), and relegates parental rights to a proceeding “designed
to determine the child’s best interests.” Infra ¶¶ 88, 99–108. I do not read
our law that way, and I write to explain why.

¶71 We share more common ground than the dissent allows.
Parents possess a fundamental liberty interest in the care, custody, and
management of their children, and that interest does not evaporate because
a parent has faltered or has lost temporary custody to the state. Santosky v.
Kramer, 455 U.S. 745, 753 (1982). Arizona’s Legislature has codified the
same principle, declaring that the liberty of parents to direct the upbringing
of their children “is a fundamental right.” A.R.S. § 1-601(A). I do not doubt
that § 1-601 speaks to these proceedings. My disagreement with the dissent
is therefore narrow, and it is twofold: the dissent overreads our decision in
In re M.N., 259 Ariz. 120 (2025), to make strict scrutiny the governing test,
and it overlooks that Arizona’s framework satisfies due process under any
standard properly applied to it. Neither the fundamental status of the right
nor the applicability of due process is in doubt; the only question is whether
Arizona’s framework honors those guarantees. It does.

¶72 The dissent’s theory of the standard of review rests almost
entirely on a single sentence in In re M.N. But M.N. will not bear that weight
and understanding why requires attention to what that case actually
decided. M.N. was an adoption case about the distinct statutory
classifications of “potential” and “putative” fathers; the juvenile court there
had terminated a potential father’s rights for failing to register with the
putative fathers registry. In re M.N., 259 Ariz. at 122 ¶¶ 1–2. We resolved
the case on purely statutory grounds, holding only that a potential father
served with notice under A.R.S. § 8-106 is not required to file with the
registry, so that his failure to register was not a ground for termination. Id.
at ¶¶ 32–33. The disposition turned on the interaction of the notice and

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

registration statutes—not on any tier of constitutional scrutiny. Strict
scrutiny decided nothing in M.N.

¶73 The sentence on which the dissent relies—that “infringement
of this fundamental right is subject to strict scrutiny” under
§ 1-601(B)—cannot be read in isolation from the analytical work it does. Id.
at 126 ¶ 29. It appears in a passage explaining that reading the two
paternity statutes together to impose overlapping requirements would
render provisions superfluous and “raise[] due process issues.” Id. at ¶ 30.
The Court invoked the constitutional concern in service of statutory
construction—as a reason to prefer the reading that avoided a
constitutional question, in the ordinary manner of constitutional
avoidance—not as an operative test applied to sustain or strike a severance.
The observation was a signpost pointing away from a constitutional
collision, not a holding embracing one.

¶74 That distinction is dispositive. M.N. analyzed neither the
elements of strict scrutiny—it identified no compelling interest, undertook
no tailoring inquiry, and weighed no less restrictive means—nor purported
to displace the due process framework the Supreme Court prescribed for
termination proceedings in Santosky. A sentence that does none of the
analytical work strict scrutiny demands cannot be the source of a
strict-scrutiny command. Its strict-scrutiny language is therefore dictum,
and dictum in a case whose facts and holding are far removed from the
merits of a contested severance. I would not convert that passing
observation into a new standard of review that neither the parties here nor
the parties in M.N. ever litigated—a course that would rest a fundamental
restructuring of Arizona severance law on language no party tested, and
the Court never applied.

¶75 Displacing the dissent’s misreading of M.N. returns us to the
standard that actually governs. The constitutionality of Arizona’s
severance framework is measured by the one the Supreme Court has
applied to parental terminations: the due process analysis of Santosky,
which balances the three factors identified in Mathews v. Eldridge. Santosky
held that, before a state may sever the parent-child relationship, it must
prove parental unfitness by clear and convincing evidence—a standard
that, in the Supreme Court’s words, “strikes a fair balance between the
rights of the natural parents and the State’s legitimate concerns.” 455 U.S.

25

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

at 769. That is not an incidental feature of Santosky; it is the constitutional
rule the decision announced. This Court has faithfully implemented that
command, holding that within Arizona’s scheme Santosky requires the
statutory grounds for termination to be proven by clear and convincing
evidence. Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 32 (2005). Arizona’s
framework is not a departure from Santosky; it is its application.

¶76 The dissent presses the point rhetorically, asking at what
point this Court applies the three-part test of Mathews and answering,
“Never and nowhere.” Infra ¶ 112. It is a fair question, and it deserves a
direct answer rather than a rejoinder in kind. I will answer it factor by
factor. Mathews directs consideration of three things: the private interest
affected; the risk of erroneous deprivation under the procedures used and
the probable value of additional or substitute safeguards; and the
government’s interest, including the fiscal and administrative burdens that
additional procedures would entail. See 424 U.S. at 335. Applied honestly
to Arizona’s framework, each factor confirms the framework’s
constitutional adequacy rather than undermining it.

¶77 The private interest. The parent’s interest is, as Santosky
recognized, commanding, and I do not minimize it; few interests known to
our law are weightier than a parent’s stake in the companionship, care, and
custody of a child. Arizona honors that weight not with rhetoric but with
the burden of proof it imposes: it refuses to sever on anything less than clear
and convincing proof of a statutory ground synonymous with unfitness.
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149 ¶ 8 (2018); A.R.S.
§ 8-537(B). The gravity of the private interest is thus built into the
evidentiary standard the state must satisfy before it may act.

¶78 The risk of erroneous deprivation. Because the fact-finding stage
focuses solely on the parent, this Court has recognized that without a
heightened standard of proof “the risk that a fit parent might be found unfit
increases,” and so clear and convincing evidence is constitutionally
required. Kent K., 210 Ariz. at 287 ¶ 36. The elevated standard is calibrated
precisely to the Mathews concern with erroneous deprivation: it allocates
the risk of error away from the parent, whose interest is fundamental, and
demands near-certainty before the state may sever. That risk is then further
reduced by the procedural protections catalogued below and by appellate
review of any termination order. Those safeguards are precisely the

26

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

“additional . . . procedural safeguards” whose value the second Mathews
factor asks us to weigh—and the answer to that inquiry is that Arizona has
already adopted them, leaving little marginal protection that additional
process could supply. See id. at 286 ¶ 33 (quoting Mathews, 424 U.S. at 335).

¶79 The government’s interest. The state’s interest in protecting
those who cannot protect themselves—such as infants—favors
preservation of the family while a nurturing relationship remains possible
and ripens into an interest in severance only once unfitness is established.
That sequencing matters, because it shows the state does not weigh its
interest on the scale until the parent has been shown unfit by the
demanding standard Santosky requires. Arizona’s two-step structure tracks
that sequence exactly: unfitness first, by clear and convincing evidence; the
child’s best interests second. Kent K., 210 Ariz. at 284 ¶ 22; Timothy B. v.
Dep’t of Child Safety, 252 Ariz. 470, 474 ¶ 13 (2022). The framework thus
reflects, rather than defies, the balance Santosky struck—each Mathews
factor, properly applied, points the same way.

¶80 A “due process-free zone” is not what Arizona law describes;
the phrase is refuted by cataloguing the protections the framework in fact
guarantees. A parent facing severance is entitled to appointed counsel if
indigent (A.R.S. § 8-221(B)), to a contested adjudication hearing (A.R.S.
§ 8-537), to present evidence and to cross-examine the state’s witnesses (see
A.R.S. § 8-537(B)), to appellate review of any termination order (A.R.S.
§ 8-235(A)), and to the assistance of appointed counsel in any appeal (A.R.S.
§ 8-235(D)). The child, too, is independently represented by counsel at
every stage. A.R.S. § 8-221. And the state must prove by clear and
convincing evidence a statutory ground synonymous with unfitness, Alma
S., 245 Ariz. at 149 ¶ 8, before the court may consider the child’s interests at
all, Kent K., 210 Ariz. at 287 ¶ 38. Each of these is a structural guarantee, not
a discretionary courtesy. These are not the marks of a lawless process; they
are the marks of a process built to satisfy due process.

¶81 The guarantee of appointed counsel deserves particular
emphasis, because it answers the very concern that animated Santosky. The
Supreme Court observed that parents subject to termination are often poor,
uneducated, or members of minority groups—a circumstance that
magnifies the risk of erroneous fact-finding, because those least equipped
to marshal evidence and confront the state are precisely those most exposed

27

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

to mistaken deprivation. Santosky, 455 U.S. at 763. Arizona’s provision of
counsel to every indigent parent (§ 8-221) is a direct structural response to
that danger: it places a trained advocate beside the parent at the moment of
greatest vulnerability and thereby materially reduces the risk of erroneous
deprivation for the very parents Santosky identified as most at risk. The
dissent’s suggestion that parents lack meaningful protection overlooks the
protection the Legislature has already guaranteed them—and guaranteed
it precisely where the constitutional concern is most acute.

¶82 The dissent’s charge that Arizona ignores less restrictive
alternatives is mistaken on its own terms, because the framework requires
the least restrictive course before severance and preserves an intermediate
option even after a ground for severance is proven. Reunification comes
before severance: this Court has held that providing reunification services
is a constitutional requirement under Santosky, and that severance is
available “only in the most extraordinary circumstances, when all other
efforts to preserve the relationship have failed.” Jessie D. v. Dep’t of Child
Safety, 251 Ariz. 574, 581 ¶ 18 (2021) (quoting In re Maricopa Cnty., Juv.
Action No. JA 33794, 171 Ariz. 90, 91–92 (App. 1991)) (emphasis omitted).
Severance is thus the last resort the dissent says it should be, not the first.

¶83 And even where a statutory ground is proven, Arizona law
supplies an intermediate option short of termination. A permanent
guardianship ends the child’s dependency and removes the child from
foster care without terminating the parent’s rights. Timothy B., 252 Ariz.
at 476 ¶ 25. That this alternative has real force is shown by our own
practice: we recently reversed a termination precisely because the juvenile
court failed to consider whether such a guardianship could serve the child
while the parent retained parental rights. Id. at 477 ¶ 28. Far from ignoring
less restrictive alternatives, our law compels their consideration—both
before severance, through mandatory reunification efforts, and at the point
of decision, through the availability of guardianship.

¶84 The foregoing shows that strict scrutiny is not the governing
test. But the framework does not depend on that conclusion, because it
would satisfy § 1-601 even if that standard applied of its own force—and
for the reasons given earlier, M.N. does not make it the governing test. See
supra ¶¶ 71–72. Section 1-601(B) permits the state to infringe the parental
right only on a showing that the compelling governmental interest, as

28

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Cruz, Concurring

applied to the child, is “of the highest order, is narrowly tailored and is not
otherwise served by a less restrictive means.” Taking the statute’s three
requirements in turn, each is met on this record.

¶85 Compelling interest of the highest order. The state’s interest in
preventing the death or permanent maiming of a child is of the highest
order, and this case illustrates why in stark terms. The juvenile court found
that Mother allowed M.P. to slowly starve; that at seven months of age M.P.
weighed only seven pounds and had suffered bone demineralization and
brain atrophy; and that she would have died without immediate lifesaving
treatment. When the state intervenes to prevent the death of an infant days
from death by her caregiver’s neglect, its interest is as weighty as any the
law recognizes.

¶86 Narrow tailoring. The requirement of clear and convincing
proof of a ground synonymous with unfitness is narrow tailoring in
operation, not merely in form. Alma S., 245 Ariz. at 149 ¶ 8; A.R.S.
§ 8-537(B). By conditioning severance on that demanding showing, the
framework reaches only those parents whose conduct has been proven, to
a near-certainty, to render them unfit—and no further.

¶87 Less restrictive means. And the reunification-first structure,
together with the availability of a permanent guardianship, supplies the
less restrictive means the statute demands: the state must attempt to
preserve the family before it may sever, and even then, a court may choose
guardianship over termination. The framework thus survives even the
scrutiny the dissent would impose—it satisfies § 1-601 element for element.
The disagreement between the dissent and the majority is not, at bottom,
about whether parental rights are fundamental or whether due process
applies in termination proceedings. They plainly are, and it plainly does.
The disagreement is whether Arizona’s framework honors those
guarantees. For the reasons given—that M.N.’s strict-scrutiny language is
dictum; that Santosky and Mathews supply the governing analysis and are
satisfied; that Arizona surrounds the parent with counsel, an evidentiary
hearing, and appellate review; that the law compels consideration of less
restrictive alternatives; and that the framework satisfies § 1-601 even on the
dissent’s own preferred standard—it does. I respectfully concur.

29

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

BOLICK, J., dissenting:

¶88 The Court’s ruling here is yet another step toward making our
termination of parental rights regime a due process-free zone; hence, I
respectfully dissent.

¶89 My colleagues argue to the contrary, noting specific due
process protections. See supra ¶ 59 (majority); supra ¶ 80 (Cruz, J.,
concurring). I do not mean to minimize those protections, particularly the
right to counsel for indigent parents. But when a parent apparently has less
than a one in one thousand chance of prevailing in a termination
proceeding, see infra ¶ 126, it ought to raise alarm bells that important
procedural and substantive due process protections are lacking.

¶90 If the Constitution makes anything clear in this area, it is that
the permanent termination of a family relationship must be a last resort, not
an automatic outcome. Yet in Arizona, too often that result is largely
preordained, and even the minimal procedural protections can be
short-circuited.

¶91 As I will describe in greater detail below, in summary, our
termination of parental rights regime falls markedly short of essential due
process requirements in a variety of ways. At no time does the state have
to prove present parental unfitness in order to terminate her rights.
Relatedly, at no time does the state have to prove that rehabilitative and
reunification efforts have proven unavailing. At no time does the state have
to prove that no less destructive alternatives exist to permanent
termination. And any failure on part of the parent during the process, even
if through no fault of the parent, can result in immediate termination.
Given that the termination of the family relationship touches the real lives
of real people, parents and children alike, in ways that could hardly be more
devastating, the perception of meaningful substantive and procedural due
process “guardrails” is largely a facade.

¶92 Ordinarily, I would consider concurring in the result rather
than dissenting. Mother’s past neglect leading to removal of her child here
was truly horrific; and the trial court made the additional finding,
considered unnecessary by my majority colleagues, that rehabilitative
services provided to her were not sufficiently curative to mitigate future

30

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

risk of harm. Even under a constitutionally compliant termination process,
those findings might be enough to justify termination; but only after fully
considering Mother’s evidence of rehabilitation, any other relevant
evidence, and her bonds with her daughter, who joins her in opposing
termination. See infra ¶ 122.

¶93 But just as bad facts often make bad law, bad law makes even
worse law. Our statutes, court rules, and judicial opinions have congealed
into what I have elsewhere referred to as a “constitutionally toxic
concoction.” 8 Trisha A., 247 Ariz. at 97 ¶ 60 (Bolick, J., dissenting). This
framework is so far removed from federal procedural and substantive due
process requirements—and indeed even from state law that codifies those
requirements—that any product of that process is necessarily
constitutionally suspect. That process begs review by the United States
Supreme Court.

I.

¶94 Before turning to the specific issues presented by this case, I
will briefly review the applicable constitutional and statutory parameters
pertaining to parental rights and then describe the process we have created
in Arizona to terminate those rights. Such a comparison will illustrate the
gaping chasm between what the Constitution commands and our practices.

¶95 The right of parents to direct and control the upbringing of
their children is one of America’s foundational constitutional principles.
See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 68–69 (2000) (plurality opinion)
(“[T]he interest of parents in the care, custody, and control of their

8 Our due process deprivations are not confined to final termination of
parental rights determinations. In Trisha A. v. Department of Child Safety,
247 Ariz. 84, 90–91 ¶¶ 24–30 (2019), we held that a routine status conference
at which a parent failed to appear could be immediately converted into a
final termination hearing, during which the mother’s lawyer could not
present a full defense and her rights were permanently severed in a mere
25 minutes. The acceleration was triggered not by any deficiency on the
part of the mother but solely by her failure to appear at the status
conference. Thereafter, we tied her up in such a series of procedural knots
that she could not meaningfully explain her absence or challenge the
termination.
31

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

children . . . is perhaps the oldest of the fundamental liberty interests
recognized by this Court.”); Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972);
Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399–402 (1923).

¶96 The Court has recently reaffirmed those rights. In Mahmoud
v. Taylor, the Court held that a school district that failed to provide an
opt-out from books that offended parents’ religious beliefs violated their
right to free exercise of religion. 606 U.S. 522 (2025). Although that opinion
was grounded in the First Amendment, all nine justices subsequently
reiterated, in a case involving a school district’s lack of parental notification
regarding children’s sex transitioning, that parents have a substantive due
process right under the Fourteenth Amendment to the care and control of
their children. Mirabelli v. Bonta, 607 U.S. 492, 496–97 (2026) (per curiam)
(stating that the policies “cut out the primary protectors of children’s best
interests: their parents”) (citing Troxel, Pierce, and Meyer); id. at 500 (Barrett,
J., joined by Roberts, C.J., and Kavanaugh, J., concurring) (noting that Meyer
and Pierce remain good law); id. at 507 (Kagan, J., joined by Jackson, J.,
dissenting) (stating “I have no doubt that parents have rights, even though
unenumerated, concerning their children and the life choices they make”).

¶97 Given that the recognition of parental rights predates the
Arizona Constitution, surely those rights are among the “fundamental
principles” that are “essential to the security of individual rights and the
perpetuity of free government,” Ariz. Const. art. 2 § 1; and they can hardly
be subject to less protection in a state whose constitution proclaims the
purpose of its governments “to protect and maintain individual rights,” id.
art. 2 § 2. Our state’s elected representatives enshrined those rights in
statute. Section 1-601(A) of the Arizona Revised Statutes establishes that
“[t]he liberty of parents to direct the upbringing . . . of their children is a
fundamental right.” Section 1-601(B) provides that the state “shall not
infringe on these rights without demonstrating that the compelling
governmental interest . . . is of the highest order, is narrowly tailored and is
not otherwise served by a less restrictive means.”

¶98 Those rights are never more salient than when the
government moves to sever the parental relationship, because “[w]hen the
State initiates a parental rights termination proceeding, it seeks not merely
to infringe that fundamental liberty interest, but to end it.” Santosky v.

32

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

Kramer, 455 U.S. 745, 759 (1982). Because “[f]ew forms of state action are
both so severe and so irreversible,” id., the Constitution demands that when
the government seeks to dissolve parental rights, “it must provide the
parents with fundamentally fair procedures,” id. at 753–54. Such
procedures are especially essential given that, even in the best of
circumstances, “[t]he State’s ability to assemble its case almost inevitably
dwarfs the parents’ ability to mount a defense,” given the state’s resources,
expertise, and investigative powers; the fact that the state’s own experts and
caseworkers typically comprise the main witnesses; and that the child is in
agency custody. Id. at 763.

¶99 Applying both the federal jurisprudence and § 1-601, this
Court has recognized that “[p]arental rights are fundamental,” that “[t]he
state’s decision to end a parent’s right to his or her child implicates a
fundamental right,” and that “infringement of this fundamental right is
subject to strict scrutiny.” In re M.N., 259 Ariz. 120, 126 ¶ 29 (2025).

¶100 At this point, the reader cannot help but notice that this
demanding and obligatory constitutional framework is completely absent
from the majority opinion, as it is from nearly all of our termination of
parental rights opinions. Our opinions usually briefly recite parental rights
verbiage, much like a perfunctory meal blessing, quickly forgotten. The
majority here dispenses with that nicety. Although the opinion pays lip
service to the lodestar Santosky opinion without seriously engaging it,
nowhere does it recognize the fundamental rights at stake, nor does it apply
strict scrutiny, nor consider less restrictive alternatives.

¶101 Nor does it even mention § 1-601, except in response to the
dissent, and then only to say that “whether § 1-601 applies here is not a
question properly before us” because “no party has argued the applicability
of that statute.” Supra ¶ 58. By dismissing the statute in this manner, the
Court reduces § 1-601 to the proverbial tree in the forest that falls yet makes
no sound because no one was there to hear it.

¶102 Is the majority saying that we will have two sets of
jurisprudence regarding termination of parental rights, one where the
parties argued § 1-601, and one where they didn’t? Do we really mean that
the law is a function not of what the statutes say, but of what a party argues?

33

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

¶103 Such a discordant approach is unnecessary for multiple
reasons. First, because we have already held that § 1-601 applies to
termination cases and “infringement of this fundamental right is subject to
strict scrutiny.” M.N., 259 Ariz. at 126 ¶ 29. Second, as we have held
repeatedly, we do not read statutes in isolation, but rather in pari materia,
encompassing other statutes addressing the same subject. See, e.g.,
Rodriguez-Ramirez v. State, No. CR-25-0157, 2026 WL 2329934, at *3 ¶ 20
(Ariz. Aug. 12, 2026); Williams v. Ariz. Dep’t of Econ. Sec., No. CV-25-0157,
2026 WL 2409127, at *2 ¶ 9 (Ariz. Aug. 18, 2026); Planned Parenthood Ariz.,
Inc. v. Mayes, 257 Ariz. 137, 142 ¶ 15 (2024). When two statutes govern the
same subject matter, it is black-letter law that we seek to harmonize them
and give meaning to each. See UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz
327, 329 ¶ 11 (2001); Pima Cnty. ex rel. City of Tucson v. Maya Constr. Co., 158 Ariz. 151, 155 (1988) (stating that when “statutes relate to the same
subject,” we construe them “together . . . as though they constituted one
law” in order to “give effect to all the statutes involved”). We do not
typically harmonize statutes and give effect to both by enforcing one and
ignoring the other.

¶104 What the majority instead applies is the statutory termination
of parental rights framework as interpreted by the Court in a number of
opinions. It begins with § 8-533(B), which provides that “[e]vidence
sufficient to justify the termination of the parent-child relationship shall
include any one of the following,” followed by a number of grounds
including neglect. § 8-533(B)(2). Although the statute uses the word
“include,” it does not specify what else “sufficient evidence” could or must
include.

¶105 The majority here cites Kent K. v. Bobby M., 210 Ariz. 279,
285–86 ¶¶ 31–32 (2005), for the proposition that “the grounds for
termination listed in § 8-533(B) are synonymous with parental unfitness,”
and that if proven by clear and convincing evidence, “a parent’s due
process rights are satisfied.” Supra ¶ 31. On this basis, the Court holds that
the court of appeals’ consideration of “all relevant evidence,” including
Mother’s participation in rehabilitation services, was improper in
determining her unfitness. Supra ¶ 30. Thus, at this stage, the parent is
limited to arguing one thing only: that the ground for termination did not
exist at any moment in time, which of course would be a futile exercise for
someone convicted of the very offense on which termination is based. Once

34

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

the ground is proven, as the majority states, the statute requires no further
showing that the parent is unfit. See supra ¶ 26.

¶106 Once this inquiry is satisfied, the Court proceeds to consider
the child’s best interests. Although the statute provides that “in considering
any of the [grounds for termination], the court shall also consider the best
interests of the child,” § 8-533(B), the Court has bifurcated this inquiry. This
is where the Court purportedly takes the parent’s interests into account.
Supra ¶ 36. But under this inquiry, which is subject only to a preponderance
of the evidence standard, the “focus shifts to the interests of the child as
distinct from those of the parent.” Supra ¶ 37 (citation modified).
Pointedly, in this part of the analysis, the parent’s and child’s interests are
presumed to diverge. Supra ¶ 37; Kent K., 210 Ariz. at 285 ¶ 31. As the
majority notes, “termination is in the child’s best interests if either of the
following conditions are met: (1) the child will benefit from severance; or
(2) the child will be harmed if severance is denied.” Supra ¶ 38 (citing
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 16 (2016)). Indeed, the court may
permissibly find best interests satisfied if the child is found to be adoptable.
Id. (citing Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 588 ¶ 11 (App.
2008)); see also Alma S. v. Dep’t of Child Safety, 245 Ariz 146, 150 ¶ 13 (2018).

¶107 What is the gaping and obvious omission from this process?
It is completely bereft of any meaningful consideration of parental rights.
Such consideration is completely absent from the threshold finding of
unfitness (and indeed, today’s decision even removes any consideration of
rehabilitation services and efforts from that part of the analysis). Instead,
the parent’s rights are relegated to the child’s best-interests analysis, where
the parent’s and child’s interests are presumed to diverge.

¶108 That is hardly an apt context in which to vindicate
fundamental rights. On its face, it violates the most basic and fundamental
due process precept: the right to be heard at a meaningful time and in a
meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 267 (1970). Consigning
the consideration of fundamental rights to a process designed to determine
a child’s best interests, especially where the interests are deemed to diverge,
does not come close to meeting that standard.

¶109 After emphasizing that the parent’s interests are considered
in the child’s best-interests inquiry, the majority curiously states that “[i]t is

35

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

this unfitness determination—not the later best-interests stage—that
supplies the constitutional safeguards a parent is owed, a point the dissent’s
critique of Arizona’s framework misses.” Supra ¶ 52. But that is exactly my
point—the parent’s rights cannot be meaningfully protected in the context
of a child’s best-interests analysis. Where we diverge is the majority’s belief
that once the state proves a past act under the statute that is deemed a proxy
for unfitness, “the parent has already received all process demanded by the
Constitution.” Id.

¶110 This process runs headlong into Santosky’s insistence on
“fundamentally fair procedures” before terminating parental rights.
455 U.S. at 754. The Court emphasized that the “fundamental liberty
interest of natural parents in the care, custody, and management of their
child does not evaporate simply because they have not been model parents
or have lost temporary custody of their child to the State.” Id. at 753.
Indeed, “[i]f anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural protections than do
those resisting state intervention into ongoing family affairs.” Id.

¶111 As a court should do in every case involving a governmental
deprivation of life, liberty, or property, Santosky applied the three basic and
essential due process elements from Mathews v. Eldridge, 424 U.S. 319,
334–35 (1976). Santosky concluded that “[i]n parental rights termination
proceedings, the private interest affected is commanding; the risk
of . . . using a preponderance [of evidence] standard is substantial; and the
countervailing government interest favoring that standard is
comparatively slight.” 455 U.S. at 758. Consequently, the Court ruled that
the proper standard in assessing parental unfitness is clear and convincing.
Id. at 769.

¶112 At what point in the termination process does this Court
apply the Mathews three-part test? Never and nowhere. Rather, the State
need only prove that a parent, at one moment in time, committed one of the
statutory violations that the Court deems a proxy for permanent unfitness. 9
Supra ¶ 25. The exclusion of relevant evidence as to the parent’s current

9 The Department of Child Safety (“DCS”) notes, chillingly, that as to the
§ 8-533(B)(2) criterion, the statute does not use the word “willful” neglect,
so that even a past instance of unintentional neglect could be a ground for
termination of parental rights.
36

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

and future unfitness would utterly flunk the Mathews test, given the
powerful parental interests implicated in such a framework, the massive
risk of erroneous deprivation, and the paucity of any state interest in
excluding such evidence.

¶113 In the majority’s framework, the constitutional requirements
fold into the statutory analysis—which is antithetical to the Supreme
Court’s approach in Santosky. Indeed, Santosky addressed precisely that
point, declaring that “[t]he ‘minimum requirements [of procedural due
process] being a matter of federal law, they are not diminished by the fact
that the State may have specified its own procedures that it may deem
adequate for determining the preconditions to adverse official action.’”
455 U.S. at 755 (quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)). And by
relegating parental rights to the child’s best-interests determination, it
subjects those rights, to the extent they are considered at all, to a
preponderance of evidence standard, opposite from what Santosky requires.
Indeed, given the child’s best interests are the primary focus at this stage of
the proceeding, and those interests are deemed to diverge from the
parent’s, the determination that the parent’s rights fail is subject to no
standard of proof whatsoever.

¶114 I cannot say the majority clearly errs in its analysis of the
statutes it construes here, especially in light of past precedents. Those
precedents date back more than twenty years to Kent K., but the
constitutional principles we are bound to apply date back more than a
century. Nor does it apply § 1-601(A), which was enacted after Kent K. and
statutorily codifies the constitutional requirements. Hence, no strict
scrutiny, no consideration of less-restrictive alternatives. The Court simply
ignores the statute, just as it ignores Mathews and avoids the holding and
analytical framework of Santosky. Our jurisprudence in this area is judicial
legerdemain of the highest order: that which is paramount and
fundamental is made to disappear.

II.

¶115 Today’s decision widens the chasm between our termination
of parental rights system and the rudiments of due process. The question
here is whether the court should consider a parent’s rehabilitation efforts in
determining whether grounds exist for the permanent termination of
parental rights. The majority chastises the court of appeals for requiring
37

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

the juvenile court to consider “all relevant evidence,” including a parent’s
participation in state-mandated rehabilitation services. Supra ¶¶ 23–28.

¶116 Considering “all relevant evidence” before visiting upon a
person one of the greatest possible deprivations of liberty is exactly what
due process requires. But even if the statute requires no such thing, as the
majority holds, the Constitution surely does. We are supposed to interpret
statutes, where possible, to preserve their constitutionality. See, e.g.,
Williams, 2026 WL 2409127, at *2 ¶ 9; State v. Arevalo, 249 Ariz. 370, 373 ¶ 9
(2020); cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 247–51 (2012) (discussing the “constitutional-doubt canon”
which requires a court interpret a statute in a manner which avoids placing
the statute’s constitutionality in doubt). Instead, the majority reads the
statute narrowly, further depriving the parent of a meaningful opportunity
to demonstrate why her rights should not be permanently altered, thereby
rendering an already profoundly unconstitutional statutory regime even
more unconstitutional.

¶117 The relevant statute, A.R.S. § 8-533(B)(2), provides that
“[e]vidence sufficient to justify the termination of the parent-child
relationship shall include . . . [t]hat the parent has neglected or wilfully
abused a child.” The majority laser-focuses on the verbiage “has neglected”
to conclude that the use of past tense means that “termination is supported
if the juvenile court finds by clear and convincing evidence that the parent
neglected the child.” Supra ¶ 25. Because the statute requires no additional
showing, it “does not require the juvenile court to also consider whether
the parent has since participated in and benefited from rehabilitative
services.” Supra ¶ 26.

¶118 The majority overlooks that the evidence “shall include” such
a finding, thus specifying what is necessary but not what is sufficient. The
Constitution supplies that crucial additional detail. For termination of
parental rights requires not merely proof of past conduct but also a forward
perspective regarding whether the family unit can be restored.

¶119 Santosky makes that clear. That case entailed a finding of
permanent neglect, with a neglect showing necessary for removal but
permanent neglect required for termination. 455 U.S. at 748. And that
makes sense, given that removal is reversable, while termination is

38

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

irreversible, a “disparity of consequence” that “strongly favors heightened
procedural protections.” Id. at 761. Thus, at the factfinding stage in a
termination proceeding, the evidence must focus on what the state
did—that is, make diligent efforts to restore the family relationship; and
what the natural parents did not do—maintain contact with or plan for the
future of the child. Id. at 759–60. It necessarily entails “appraising the
nature and quality of a complex series of encounters among the agency, the
parents, and the child.” Id. at 762. Indeed, the Court justified the
heightened standard of review at this stage of the process on the risk that
termination could be based on a few isolated instances of unusual conduct
or idiosyncratic behavior. Id. at 764. During this part of the proceeding,
“the child and his parents share a vital interest in preventing erroneous
termination of their natural relationship.” Id. at 760.

¶120 Obviously, a parent’s efforts toward rehabilitation are an
important part of that determination; and it would be a cruel and pointless
hoax to offer or require such services if there was no prospect of
reunification. Indeed, in Jessie D. v. Department of Child Safety, 251 Ariz. 574,
582 ¶ 21 (2021), this Court noted that rehabilitation services are “a
constitutional requirement under Santosky,” and unanimously declared
that a court may permanently sever the parent-child relationship “only in
the most extraordinary circumstances, when all other efforts to preserve the
relationship have failed.” Id. at 581 ¶ 18 (emphasis in original) (citation
omitted); accord Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 253 ¶ 39
(2000) (Zlaket, C.J., concurring in part and dissenting in part) (stating that
given “[t]he right to have custody and care of . . . children is among our
most precious liberties,” the state must “make some attempt to preserve”
the family relationship). It is difficult to say that “efforts to preserve the
relationship have failed” if the court must conclude, as a matter of law, that
a parent who has committed a statutory violation is permanently unfit. But
the majority here does exactly that, short-circuiting Santosky’s totality of the
circumstances requirement by holding that nothing more than a finding
that a parent once neglected the child is sufficient to terminate the
relationship, and that evidence to the contrary is legally irrelevant.

¶121 In a case, like here, where the termination factor is also the
basis for a criminal conviction, the conviction will necessarily deprive the
parent of any possibility, much less a meaningful one, to rebut the State’s
assertion of unfitness. Which transforms her criminal sentence into one that

39

IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

carries with it a penalty nowhere found in the criminal statutes—an
automatic finding of unfitness, which will almost inevitably lead to
permanent loss of her parental rights following the filing of a petition to
that effect by DCS. Thus, even beyond the substantive and procedural due
process ramifications, applying the statute in this manner creates the very
real possibility of an excessive criminal penalty. U.S. Const. amend. VIII;
Ariz. Const. art. 2, § 15.

¶122 If allowed to do so, Mother here could present evidence
rebutting the State’s case. The rehabilitation services were part of a
reunification case plan sought by DCS and ordered by the court, the court
reconfirmed that plan with no opposition from DCS, repeated reports
concluded that Mother was in compliance with the services, Mother had
continuous and regular supervised parenting time with her daughter, and
the Foster Care Review Board officially signed off on the rehabilitation plan.
No precipitating event in the record explains why DCS reversed course
from the family reunification goal in favor of termination. And
significantly, the child here is represented by counsel, who states that she has
bonded with her mom and opposes termination.

¶123 Let me be completely clear here: the Court is holding that
termination of parental rights is permissible even if the trial court had not
made an express finding of current and future unfitness, and absent
consideration of less-restrictive alternatives (such as continuing the
rehabilitation services as initially ordered). See, e.g., Timothy B., 252 Ariz.
at 477 ¶ 28 (remanding to trial court to consider, among other things,
whether a permanent guardianship is an appropriate less-restrictive
alternative to termination). To put it mildly, this is an extreme deprivation
of both substantive and procedural due process.

III.

¶124 If I am correct that our opinions sharply diverge from
applicable due process principles, why hasn’t the U.S. Supreme Court
corrected us? The answer, I believe, is simple: the parents whose rights are
terminated typically lack the resources to seek Supreme Court review. See
Santosky, 455 U.S. at 763 (noting that parents subject to termination

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

proceedings are often poor or uneducated); and I am unaware of public
interest law firms that are dedicated to protecting parental rights.10

¶125 Such review is essential because the Court has not
meaningfully spoken on these issues for nearly a half-century since
Santosky, and other states may have strayed (as Arizona has) from the due
process principles applied in that decision. 11 Amicus Arizona Center for
Law in the Public Interest (“ACLPI”) depicts Arizona’s as “what may be the
least protective scheme in the country regarding what is necessary to
forever take a baby away from her mother’s care.” ACLPI Brief at 2. I have
no reason to doubt that assertion; and if true, marked differences in legal
approach among the states warranting the Court’s resolution should not be
hard to identify.

¶126 In prior opinions I have shared public statistics showing that
DCS termination petitions in recent years have resulted in severance of
parental rights approximately 99.94 percent of the time. Trisha A., 247 Ariz.
at 99 ¶ 72 (Bolick, J., dissenting). ACLPI reports that those figures remain
above 99 percent, and that “Arizona’s per-capita rate at which it terminates
parental rights is . . . over twice the national average.” ACLPI Brief at 1
(citing Vivek S. Sankaran & Christopher E. Church, The Ties That Bind Us:
An Empirical, Clinical, and Constitutional Argument Against Terminating
Parental Rights, 61 Fam. Ct. Rev. 246, 250 (2023)). Those statistics do not
themselves demonstrate a constitutional violation, but they are highly
consistent with a system in which the judicial scales are badly unbalanced.

¶127 I regret that my words on this subject have not persuaded my
colleagues, who I so greatly respect, and that most of my dissenting
opinions have been solitary. Yet I am hardly alone: in all or nearly all of

10 I note that counsel for the child in this case was provided by the Child
and Family Law Clinic at the James E. Rogers College of Law at the
University of Arizona; and that helpful amicus curiae briefs in support of
Mother were filed by the Arizona Center for Law in the Public Interest and
by indigent defense agencies.
11 Indeed, in its Petition for Review and its Supplemental Brief, DCS does

not once cite Santosky, relying entirely on Arizona decisions
notwithstanding the federal constitutional issues that permeate every
termination of parental rights case. I find that omission shocking,
dismaying, and revealing.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

our problematic termination of parental rights opinions, as here, we have
overruled conscientious court of appeals judges who have done their
level-best to squeeze a few drops of due process from our decisions, despite
overwhelming odds of reversal.

¶128 I understand the enormous stakes for children who have been
scarred or abused. I share the sense of urgency to promptly remove them
from dangerous circumstances, and to permanently sever the rights of
adults who have betrayed the precious gift of parenthood where the family
bonds are irreparable or the parents’ deficiencies irremediable. But due
process requires much more, as I have described our system elsewhere,
than “a railroad with no stops and only one destination.” Alma S., 245 Ariz.
at 153 ¶ 28 (Bolick, J., concurring in the result).

¶129 I suspect that most Americans, if faced with a choice between
a loss of their liberty or a loss of their children, would not hesitate for a
moment to choose the former. That is why parental liberty occupies the
apex of our hierarchy of natural rights. And yet, in Arizona, the termination
of parental rights is not clothed with even a modicum of the due process
rights to which those who face criminal charges are entitled. Indeed, as I
have written elsewhere, the degree to which a legal system protects
parental rights is greatly correlated to how much that system reveres
individual rights and the rule of law. See id. at 152–53 ¶ 25.

¶130 Moreover, to the extent we make it relatively easy to
terminate parental rights, without the necessity of demonstrating
compelling need and the absence of less-restrictive alternatives, the more
we license those who may define parental deficiencies differently in the
years to come based on the fashions of the time. This is simply too much
power and discretion to place in the hands of government officials, who
almost never lose once they have decided to terminate the parental
relationship. As Justice Robert H. Jackson warned in a different context,
under such circumstances “[t]he principle then lies about like a loaded
weapon ready for the hand of any authority that can bring forward a
plausible claim of an urgent need.” Korematsu v. United States, 323 U.S. 214,
246 (1944) (Jackson, J., dissenting).

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IN RE TERM OF PARENTAL RIGHTS AS TO M.P.
Justice Bolick, Dissenting

¶131 I hope that the Supreme Court will rectify our errors and
provide needed guidance in this highly important area. For all of the
foregoing reasons, and with great respect to my colleagues, I dissent.

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