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.
OPINION
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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