from the Superior Court in Maricopa County No. JS18287 and
JD30481 The Honorable Cari A. Harrison, Judge VACATED AND
Office of H. Clark Jones, LLC, Clark Jones Counsel for
Arizona Attorney General's Office, Laura J. Huff Counsel
for Appellee Department of Child Safety
Presiding Judge Peter B. Swann delivered the opinion of the
court, in which Judge Michael J. Brown and Judge Patricia A.
Orozco  joined.
B. Swann, Judge
Alma S. ("Mother") appeals from the severance of
her parental rights to I.R. and J.R. We conclude that the
record supporting the court's best-interests
determination is insubstantial. We therefore vacate the
severance order and remand for further proceedings.
AND PROCEDURAL HISTORY
I.R. is the biological child of Mother and Esdras R.
("Father"), and J.R. is Mother's biological
child from a previous relationship.
It is undisputed that Mother was away at work and I.R. was in
Father's care on May 7, 2015. That day, Father sent
Mother a Facebook message that I.R. had scratched his face
while rolling around. That night, after Mother discovered the
severity of I.R.'s injuries, Mother and Father argued
because Father would not allow Mother to take I.R. to the
hospital. Father then left the house for a few hours, but
Mother failed to take I.R. to the hospital while he was away.
The next morning, Mother asked her sister and cousin to take
I.R. to the hospital while she was at work. Her sister asked
Father if she could take I.R. to Chuck E. Cheese. Father
agreed. Mother's sister and cousin then took I.R. to the
Hospital staff determined that I.R. had a healing rib
fracture, a right-tibia fracture, a possible left-femur
fracture (ultimately ruled out), and multiple bruises. The
staff also observed bruises on J.R. They contacted the
Department of Child Safety (the "Department")
because they suspected abuse. Police found that though Father
had a criminal history, there were no police or criminal
records involving Mother.
¶5 The Department provided services to
Mother and Father, and in early 2016 the parenting plan
changed from reunification to severance and adoption. Mother
complied with or successfully completed all services provided
by the Department throughout this case, but in June 2016,
Mother and Father were providing conflicting information
about whether they were still dating. In July 2016 - fourteen
months after I.R.'s hospital admission - Mother completed
a psychological evaluation, which diagnosed her with multiple
drug dependency and personality disorders and concluded her
prospects to successfully parent the children were "poor
at best" and would continue to be so for "a
prolonged and indeterminate period of time." Ordinarily,
we would afford great deference to the juvenile court's
review of such an evaluation. But the record here reveals
that the evaluation was untethered to the evidence.
In November 2016, the court held a two-day evidentiary
hearing concerning severance of Mother's and Father's
parental rights. Father did not appear and communicated
through counsel that he did not contest the severance. The
court severed Father's rights to I.R. and E.C. (a child
from his previous relationship) in absentia and
heard testimony on severing Mother's rights. Father's
severance is not at issue in this appeal.
During her testimony, Mother asserted her Fifth Amendment
right to remain silent in response to questions related to
her failure to bring I.R. to the hospital immediately,
awareness of I.R.'s injuries, and Father's history of
domestic violence. From her silence, the juvenile court drew
negative inferences that she was aware Father caused
I.R.'s injuries but did not report them and that she was
aware of Father's domestic-violence history. The
Department introduced the psychological evaluation and had
the evaluator testify. The juvenile court found clear and
convincing evidence that Mother knew or reasonably should
have known that Father abused I.R. and that she failed to
protect I.R. See A.R.S. § 8-533(B)(2);
Linda V. v. Ariz. Dep't of Econ. Sec, 211 Ariz.
76, 79, ¶ 14 (App. 2005) (holding that it is not
necessary that the child be abused only that
a child be abused). The court also found that
severance was in the children's best interests and
severed her rights. Mother appeals, challenging only the
We review severance orders for abuse of discretion, viewing
the facts in the light most favorable to sustaining the
juvenile court's findings. Xavier R. v. Joseph
R., 230 Ariz. 96, 99-100, ¶¶ 9, 11 (App.
2012). "We will not disturb the juvenile court's
order severing parental rights unless its factual findings
are clearly erroneous, that is, unless there is no reasonable
evidence to support them." Audra T. v. Ariz. Dept of
Econ. Sec, 194 Ariz. 376, 377, ¶ 2 (App. 1998). We
review questions of law de novo and are not bound by findings
that combine both facts and law. Wilmot v. Wilmot,
203 Ariz. 565, 568, ¶ 10 (2002).
We will not reweigh evidence, because the juvenile court is
best positioned to "observe the parties, judge the
credibility of witnesses, and resolve disputed facts."
Jordan C. v. Ariz. Dept of Econ. Sec, 223 Ariz. 86,
93, ¶ 18 (App. 2009). But our review for "abuse of
discretion" does not mean we look for culpable
"abuse" by the court or imply that trial courts
have an equal level of discretion in all situations. City
of Phoenix v. Geyler, 144 Ariz. 323, 329 (1985).
"Abuse" of discretion occurs when a trial
court's ruling is "clearly untenable, legally
incorrect, or amount[s] to a denial of justice."
Id. (citation omitted). When the court's
decision is based on a faulty application of law or factual
findings not logically supported by the evidence, we may
afford a remedy on appeal under the abuse of discretion
EVIDENCE DOES NOT SUPPORT A BEST INTERESTS FINDING WITH
REGARD TO MOTHER
The purpose of the state's initial involvement is not to
sever parents' constitutionally protected rights to the
care, custody, and association with their children, but to
ensure that children are healthy and safe and to rectify the
circumstances that led to the need for intervention. See
Stanley v. Illinois, 405 U.S. 645, 651 (1972); A.R.S.
§§ 8-451, -457; Mary Lou C. v. Ariz. Dept of
Econ. Sec, 207 Ariz. 43, 49, ¶ 15 (App. 2004);
Mary Ellen C. v. Ariz. Dept of Econ. Sec, 193 Ariz.
185, 192, ¶¶ 32-34 (App. 1999). "The combined
effect of the fundamental character of a parent's right
to his [or her] child and the severity and permanence of
termination dictates that the court sever the parent-child
relationship only in the most extraordinary
circumstances" and "only when concerted
effort to preserve the relationship fails" or would be
futile. Mary Ellen C, 193 Ariz. at 192, ¶¶
32, 34 (emphases added).
Parents must be given a fundamentally fair opportunity to
rectify parenting problems before their parental rights may
be terminated. See Mary Lou C, 207 Ariz. at 49,
¶ 15; Mary Ellen C, 193 Ariz. at 192,
¶¶ 32-34. Indeed, "[t]he extent to which
procedural due process must be afforded the recipient is
influenced by the extent to which he may be 'condemned to
suffer grievous loss.'" Goldberg v. Kelly,
397 U.S. 254, 262-63 (1970) (citation omitted). As the United
States Supreme Court held in Santosky v. Kramer:
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. Even
when blood relationships are strained, parents retain a vital
interest in preventing the irretrievable destruction of their
family life. If 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 ...