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Denia L. v. Department of Child Safety

Court of Appeals of Arizona, Second Division

November 20, 2019

Denia L., Appellant,
Department of Child Safety, H.C.-L., and H.-C.-L., Appellees.

          Appeal from the Superior Court in Pima County Nos. JD20160177 and S20160232 The Honorable Wayne E. Yehling, Judge.

          Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant

          Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety

          Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minors

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich and Judge Eckerstrom concurred.


          ESPINOSA, JUDGE.

         ¶1 Appellant Denia L. appeals from the juvenile court's denial of her motion to grant relief from a severance order. Because the children who were the subject of the severance proceeding have been adopted, and it has been more than one year since the adoption order was entered, see A.R.S. § 8-123, we dismiss the appeal as moot.

         Background and Procedural History

         ¶2 The Department of Child Safety (DCS) took Denia's twin girls, born in August 2015, into custody in March 2016 after one of them was hospitalized with subdural hematoma, an occipital skull fracture, and retinal hemorrhages. Denia claimed the child had fallen from a bed on which she left the twins, but a doctor testified the injuries were not consistent with such a fall.[1] In April, Denia entered a "no contest" plea to the allegations DCS made in a dependency petition. The juvenile court adjudicated the children dependent and ordered a case plan of reunification.

         ¶3 In November 2016, the twins filed a petition for severance, alleging termination was warranted on the grounds of neglect and abuse, based on the physical injuries sustained by the hospitalized child. Denia and DCS opposed the petition. After a hearing, the juvenile court found Denia had abused the twin who had been hospitalized and concluded that abuse provided a "nexus" to warrant severance as to the other twin as well. The court also determined that severance was in the children's best interests to avoid the risk of future abuse and because they were adoptable and in a potentially adoptive placement with their paternal grandmother.[2] It ordered Denia's parental rights terminated on February 28, 2017. This court affirmed the juvenile court's severance order on appeal. Denia L. v. Dep't of Child Safety, No. 2 CA-JV 2017-0047 (Ariz. App. Aug. 17, 2017) (mem. decision).[3]

         ¶4 Also in February 2017, Denia was charged with child abuse. In June 2017 she filed a motion to dismiss the charge "due to prosecutorial misconduct and/or errors during the grand jury hearing." The state conceded that remand was appropriate, acknowledging that the grand jury should have been informed of one doctor's opinion that the child's injuries "were consistent with [Denia's] account of the victim having fallen." Upon remand, the grand jury failed to indict Denia a second time. The trial court granted the state's subsequent motion to dismiss the prosecution without prejudice on April 26, 2018. Meanwhile, on November 4, 2017, the twins had been adopted by their paternal grandparents.

         ¶5 On October 17, 2018, Denia filed a "Motion to grant relief from order; motion to set aside adoption" in the consolidated dependency and severance proceeding. She argued the severance order and adoption should be set aside because (1) the juvenile court had severed her rights "based on allegations that initiated the dependency rather than the circumstances occurring at the time of the severance trial," (2) "minor's attorney was the only party supporting termination," (3) when the criminal case against Denia was remanded to the grand jury it failed to indict her a second time, and (4) the juvenile court had wrongly "emphasized" Denia's refusal to acknowledge abuse had occurred. She also argued in a supplemental brief that her counsel in the severance proceeding had been ineffective. She did not file the motion in the adoption proceeding. The juvenile court denied her motion in the severance proceeding, concluding it was untimely filed under Rule 46(E), Ariz. R. P. Juv. Ct.

         ¶6 In her opening brief in this court, Denia argued the juvenile court erred in denying her motion because she "is entitled to equitable tolling of the time" based on her counsel's purported ineffectiveness and her having filed her motion within six months of the dismissal of the criminal charges. In its answering brief, DCS relied in part on § 8-123, arguing that the statute bars equitable tolling. Upon determining Denia had not filed a motion to set aside the adoption in the adoption proceeding, this court sua sponte questioned whether the appeal was moot in view of § ...

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