Brionna J. v. dcs/a.V. ( 2023 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
BRIONNA J.,
Appellant,
v.
D EPARTMENT OF CHILD SAFETY, A.V.,
Appellees.
No. CV-22-0158-PR
Filed August 8, 2023
Appeal from the Superior Court in Maricopa County
The Honorable Connie Contes, Judge (Ret.)
No. JD530462
AFFIRMED
Opinion of the Court of Appeals, Division One
253 Ariz. 271 (App. 2022)
VACATED
COUNSEL:
Kristin K. Mayes, Arizona Attorney General, Drew C. Ensign, Section Chief
Civil Appeals, Amanda Adams (argued), Assistant Attorney General, Toni
M. Valadez, Senior Appellate Counsel, Mesa, Attorneys for Department of
Child Safety
Edward D. Johnson (argued), Law Office of Ed Johnson, PLLC, Peoria,
Attorney for Brionna J.
David J. Euchner (argued), Pima County Public Defender’s Office, Tucson,
Jamie R. Heller, Maricopa County Legal Defender’s Office, Phoenix,
1
BRIONNA J. V. DCS/A.V.
Opinion of the Court
Attorneys for Amici Curiae Pima County Public Defender’s Office and
Maricopa County Legal Defender’s Office
JUSTICE BEENE authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and
JUSTICES LOPEZ, MONTGOMERY, and KING joined. JUSTICE BOLICK
concurred in the result.
JUSTICE BEENE, Opinion of the Court:
¶1 The juvenile court may terminate a parent’s rights 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. A.R.S. § 8-533(B); Jessie D. v. Dep’t
of Child Safety, 251 Ariz. 574, 582–83 ¶ 26 (2021). Section 8-533(B)(8)(c)
allows the court to terminate a parent’s rights if: (1) “[t]he child has been in
an out-of-home placement for a cumulative total period of fifteen months
or longer pursuant to court order or voluntary placement,” (2) “the parent
has been unable to remedy the circumstances that cause the child to be in
an out-of-home placement,” and (3) “there is a substantial likelihood that
the parent will not be capable of exercising proper and effective parental
care and control in the near future.”
¶2 In this case, we consider whether the court of appeals
misapplied § 8-533(B)(8)(c), exceeded the proper scope of review by
independently assessing evidence presented to the juvenile court,
employed an incorrect standard of review, and erroneously implied that it
could dismiss the dependency finding in an appeal challenging a
termination order. For the following reasons, we hold that the court of
appeals erred in all these respects and ultimately erred by vacating the
juvenile court’s judgment terminating parental rights.
¶3 We previously issued a decision order vacating the court of
appeals’ opinion and affirming the juvenile court’s order. We now explain
the reasoning for our decision.
2
BRIONNA J. V. DCS/A.V.
Opinion of the Court
BACKGROUND
¶4 Brionna J. (“Mother”) gave birth to A.V. in November 2005.
From 2006 to 2013, Mother was reported numerous times to the Department
of Child Safety (“DCS”) for various acts of neglect and abuse regarding A.V.
In November 2016, the best interests attorney for A.V. filed a dependency
petition alleging that A.V. was dependent as to Mother because Mother had
untreated mental health issues, a history of substance abuse and domestic
violence, multiple arrests and convictions, and was reported numerous
times to the child protection authorities in Georgia and Arizona.
¶5 Mother initially contested the dependency petition. When
she failed to appear at the hearing, the juvenile court proceeded in her
absence and found A.V. dependent based on the petition’s allegations and
the facts contained in DCS’s reports.
¶6 During the resulting four-year dependency, DCS offered
Mother numerous reunification services. These services included, among
others, anger management counseling, dialectical behavioral therapy
(“DBT”), a bonding and best interest assessment, parent-aide services, and
supervised visitation. Mother’s participation in these services was
markedly inconsistent.
¶7 In conjunction with these services, Mother participated in
multiple psychological evaluations. During Mother’s first evaluation,
when A.V. was eleven years old, A.V. disclosed that she feared being hurt
by Mother when Mother was angry. Although the psychologist did not
make any mental health diagnoses, he suspected that Mother physically
and psychologically abused her daughter. Mother, however, was
recommended to participate in services to increase her “frustration
tolerance and ability to manage daily stressors.”
¶8 Approximately a year later, Mother underwent a second
psychological evaluation with a different psychologist. The report from
this evaluation stated that a child in Mother’s care “has been and could be
at risk.” The psychologist also concluded that it “does not appear that
[A.V.] can return home” due to Mother’s anger and substance abuse. He
3
BRIONNA J. V. DCS/A.V.
Opinion of the Court
observed that Mother may have a “personality disorder with borderline
traits” and expressed concern over whether Mother could adequately
parent A.V. in the future. Lastly, the report described Mother’s inability to
see a “need for changes in her behavior” and that she exhibited a level of
“treatment motivation [that] is a great deal lower than is typical of
individuals being seen in treatment settings.”
¶9 Following these evaluations, DCS moved to sever Mother’s
parental rights under § 8-533(B)(8)(c) in January 2020, and a termination
hearing was set for November 2020.
¶10 While awaiting the hearing, Mother underwent a third
psychological evaluation with another, new psychologist. This evaluation
reached similar conclusions as Mother’s previous ones. The psychologist
reported that Mother’s likelihood to safely parent A.V. in the foreseeable
future was “poor based on [her] failing to demonstrate adequate ability to
control her emotions and behavior on a consistent basis.” Specifically, the
psychologist noted that Mother’s failure to change her behavior provided
reasonable grounds to believe that the conditions that led to A.V.’s out-of-
home placement would continue. Additionally, Mother was diagnosed
with a personality disorder that included antisocial, borderline, and
paranoid features.
¶11 At the termination hearing, the DCS case supervisor testified
that because of “Mother’s behavior, her refusal to make any changes, the
ongoing conflict between her and [A.V.], her ongoing conflict with service
providers, [and] her inability to change her anger,” A.V. could not be safely
returned to Mother’s care. The supervisor stated that A.V. was residing in
an adoptive placement meeting all her needs, was adoptable, and that A.V.,
who was then fourteen, supported severance and adoption.
¶12 Mother testified that she had trouble controlling her temper
in the past, had hurt A.V. by her actions, had engaged in unnecessarily cruel
conversations with A.V., and failed to visit with her daughter for extended
periods of time. Mother also admitted that she had not been cooperative
throughout the dependency. However, she stated that she was capable of
caring for her daughter and that her actions did not justify termination of
4
BRIONNA J. V. DCS/A.V.
Opinion of the Court
her parental rights. At the conclusion of the hearing, the juvenile court
granted DCS’s termination motion.
¶13 The court of appeals vacated the termination order and
remanded the case to the juvenile court. Brionna J. v. Dep’t of Child Safety,
253 Ariz. 271, 278 ¶ 32 (App. 2022). In its opinion, the court recognized it
was not permitted to reweigh the evidence and that it must affirm the
juvenile court’s “findings if supported by reasonable evidence and
inferences.” Id. at 276 ¶ 24. However, the court also noted that it “must not
affirm a clearly erroneous severance order.” Id.¶14 In discussing the evidence presented at the termination
hearing, the court of appeals acknowledged:
reasonable evidence supports the juvenile court’s findings
that Mother was initially resistant to and minimally
participated in services, that she was aggressive and hostile
toward providers and sometimes A.V., that she withheld
visits, that she disrupted a team decision making meeting,
that she and A.V. were not currently having visits due to
fighting, and that she had persistent mental health diagnoses
and was not amenable to therapy . . . . The evidence showed
that Mother suffers from a long-term personality disorder and
often fails to control her temper and act maturely, including
when she interacts with or in the presence of A.V. The
evidence showed that on multiple occasions, Mother treated
A.V. with disrespect, told her hurtful and inappropriate
things, spitefully withheld visits, and interacted belligerently
with others, sometimes in A.V.’s presence.
Id. at 277 ¶ 28. Although the court found Mother’s continuing conduct
“concerning” it concluded that “the evidence did not establish that
[Mother] was unfit” and that “even accepting all of the juvenile court’s
findings of fact, we must hold that the state failed to meet its burden to
justify severance under § 8-533(B)(8)(c) and that the juvenile court clearly
erred.” Id. at 277–78 ¶ 28.
5
BRIONNA J. V. DCS/A.V.
Opinion of the Court
¶15 The court of appeals then discussed the dependency order,
stating that “when the record establishes that a parent is fit, the proper
remedy is dismissal of the dependency.” Id. at 278 ¶¶ 30–31. However, the
court stopped short of dismissing the dependency because the “record does
not compel us to conclude that the dependency was baseless ab initio.” Id.
¶ 30. Consequently, the court remanded the case to the juvenile court so
that it “may evaluate whether continuing government oversight serves
A.V.’s best interests.” Id. ¶ 31.
¶16 We granted review because this case presents recurring issues
of statewide concern. We have jurisdiction pursuant to article 6, section 5(3)
of the Arizona Constitution.
DISCUSSION
I.
¶17 The interpretation of § 8-533 presents a question of law, which
is reviewed de novo. See Am. C.L. Union of Ariz. v. Dep’t of Child Safety, 251
Ariz. 458, 461 ¶ 11 (2021).
A.
¶18 Parents enjoy a fundamental liberty interest in “the care,
custody, and management” of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982). However, the state possesses a vital interest in the ongoing
status of the parent-child relationship. See, e.g., In re Maricopa Cnty. Juv.
Action No. JD-561, 131 Ariz. 25, 27–28 (1981). As such, the state has the
power to “intrude into the parent-child relationship to protect the welfare
of the child and the state’s own interest in the welfare of its citizens.” Id. A
juvenile court may terminate 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. v. Bobby M., 210 Ariz. 279, 284 ¶ 24 (2005) (quoting Santosky, 455 U.S.
at 754).
¶19 Due process requires that the parent-child relationship not be
terminated unless the parent is unfit as a matter of law. See Santosky, 455
6
BRIONNA J. V. DCS/A.V.
Opinion of the Court
U.S. at 760–61. The process of evaluating the facts of a case through the lens
of Arizona’s severance statute, § 8-533(B), provides the appropriate due
process protections when the state seeks to terminate parental rights. Jessie
D., 251 Ariz. at 579 ¶ 8. This Court has explicitly “equated the substantive
grounds for termination listed in § 8-533(B) with parental unfitness.” Alma
S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 9 (2018); see also Kent K., 210
Ariz. at 285–86 ¶¶ 31–32.
¶20 Section 8-533(B) lists the grounds sufficient to justify the
termination of the parent-child relationship and dictates that “in
considering any of the following grounds, the court shall also consider the
best interests of the child.” To determine whether a parent-child
relationship may be properly terminated, the juvenile court conducts a two-
step inquiry. See Alma S., 245 Ariz. at 149 ¶ 8. “First, the juvenile court must
find by clear and convincing evidence that a statutory ground for
termination exists” under § 8-533(B). Id. After the statutory ground for
termination has been shown to exist, “the court must [then] determine by a
preponderance of the evidence that severance is in the child’s best
interests.” Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 227 ¶ 12 (2020).
B.
¶21 Here, DCS moved to terminate Mother’s parental rights
under § 8-533(B)(8)(c). To sever a parent’s rights under this statute, the
juvenile court must find by clear and convincing evidence that: (1) A.V. had
been in an out-of-home placement for a cumulative total period of at least
fifteen months; (2) DCS had made a diligent effort to provide appropriate
reunification services; (3) Mother had been unable to remedy the
circumstances that caused A.V. to be in an out-of-home placement; and (4)
there was a substantial likelihood that Mother would not be capable of
exercising proper and effective parental care and control in the near future.
§ 8-533(B)(8)(c).
¶22 Mother concedes that A.V. was in an out-of-home placement
for more than fifteen months and that DCS made a diligent effort to provide
appropriate reunification services. She contests the sufficiency of the
evidence to support the juvenile court’s findings that she was unable to
remedy the circumstances that led A.V. to be in an out-of-home placement
7
BRIONNA J. V. DCS/A.V.
Opinion of the Court
and that she would not be capable of exercising proper and effective
parental care and control in the near future. 1
¶23 As noted above, the juvenile court granted DCS’s motion to
terminate under § 8-533(B)(8)(c). In addressing the question of whether
Mother was unable to remedy the circumstances that caused A.V. to be in
an out-of-home placement, the juvenile court found that at the onset of the
dependency action, “Mother was very resistant to services and participated
minimally.” The court then found that Mother’s refusal to engage in
services persisted throughout the four-year dependency by her “volatile
and disruptive behaviors with [service] providers.”
¶24 Next, when addressing the question of whether there was a
substantial likelihood that Mother would not be capable of exercising
proper and effective parental care and control of her daughter in the future,
the juvenile court found that “Mother’s mental health condition and
diagnoses have persisted for more than four years” and “Mother is not
amenable to therapy to make necessary behavioral changes.” Accordingly,
the court concluded that “Mother has demonstrated she is unable and/or
unwilling to appropriately regulate her emotions and safely and effectively
parent her daughter.”
¶25 In reviewing the juvenile court’s findings, the court of appeals
listed the elements that must be established to terminate parental rights
under § 8-533(B)(8)(c). See Brionna J., 253 Ariz. at 277 ¶ 25. However, it
failed to examine the circumstances that caused A.V. to be in an out-of-
home placement and if there was a substantial likelihood that Mother
would not be capable of exercising proper and effective parental care and
control of her daughter in the near future. Instead of addressing these
specific elements of § 8-533(B)(8)(c), the court of appeals summarily
concluded that “even accepting all of the juvenile court’s findings of
1 Mother does not challenge the court’s best interests finding on appeal, and
accordingly we do not address it. See Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249 ¶ 13 (2000).
8
BRIONNA J. V. DCS/A.V.
Opinion of the Court
fact . . . the state failed to meet its burden to justify severance” and “the
juvenile court clearly erred.” Id. at 277–78 ¶ 28.
¶26 In conducting its review, the court of appeals must evaluate
all the statutory elements found by the juvenile court. See Juv. Action No.
JD-561, 131 Ariz. at 27 (concluding that parental rights may not be changed
without “strict compliance with the statutes involved”). And while we
agree with the court of appeals that “[s]everance is not a general-application
tool that allows the state to regulate bad parenting,” Brionna J., 253 Ariz.
at 278 ¶ 29, we disagree that it properly addressed the requirements of the
statute with its cursory conclusion that Mother was not “unfit as a matter
of law.” Id. The court of appeals’ failure to examine each element contained
in the statutory ground for termination was error.
¶27 Additionally, the court of appeals seemed to conflate seeking
severance under § 8-533(B)(8)(c) with terminating a parent’s rights based
on neglect or abuse under § 8-533(B)(2) or mental illness under § 8-
533(B)(3). Id. In discussing its reasons for vacating the juvenile court’s
termination order, the court concluded that “[t]he evidence established that
Mother was mentally ill, volatile, and unkind, but it did not establish that
she was unfit as a matter of law.” Id. The court noted that DCS “did not
allege emotional abuse by Mother, and . . . severance was never sought
based on neglect or abuse under § 8-533(B)(2), or on mental illness under
§ 8-533(B)(3).” Id. Section 8-533(B)(8)(c), however, does not require these
circumstances to be found separately to support a termination under the
statute. The elements of § 8-533(B)(8)(c) may be established with evidence
of neglect, abuse, or mental illness without the necessity of alleging the
grounds for severance under § 8-533(B)(2) or (3). As we concluded in Alma
S., § 8-533(B)(8) is a proxy for parental unfitness as a matter of law because
it demonstrates a parent’s inability to properly parent his or her child. 245
Ariz. at 150 ¶ 10; see also Santosky, 455 U.S. at 760–61. Thus, to the extent
that the court of appeals imposed an additional showing of parental
unfitness outside § 8-533(B)(8)(c)’s elements, it misinterpreted the statute.
9
BRIONNA J. V. DCS/A.V.
Opinion of the Court
II.
¶28 The court of appeals also erred when it exceeded the proper
scope of review by reweighing the evidence presented to the juvenile court.
¶29 In two recent opinions that set forth the standard of review in
termination cases, this Court stated that a reviewing court should “affirm a
termination order unless the juvenile court abuses its discretion or the
court’s findings are not supported by reasonable evidence.” Timothy B. v.
Dep’t of Child Safety, 252 Ariz. 470, 474 ¶ 14 (2022); see also Jessie D., 251 Ariz.
at 579–80 ¶ 10. While this standard is legally correct, the imprecise
language used in our previous cases may have caused the court of appeals
to inadvertently combine the distinct factual and legal review that must be
conducted when reviewing a termination order. To allay possible
confusion, we clarify the standard of review before applying it here.
¶30 A juvenile court’s termination order must be reviewed under
a two-part analysis. First, the appellate court will review the factual
findings made by the juvenile court, and its factual findings will be
accepted “if reasonable evidence and inferences support them.” See Jessie
D., 251 Ariz. at 580 ¶ 10 (quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3
¶ 9 (2016)). This deferential standard is warranted “[b]ecause the juvenile
court is in the best position to weigh evidence and assess witness
credibility.” Id. at 579 ¶ 10 (quoting Demetrius L., 239 Ariz. at 3 ¶ 9).
¶31 Second, the juvenile court’s legal conclusions regarding the
statutory ground for termination—which must be established by “clear and
convincing” evidence at the juvenile court level—will be affirmed unless
they are clearly erroneous. Id. at 580 ¶ 10, 582–83 ¶¶ 26–27. In making this
determination, the question of whether the statutory factor is supported by
the mandated quantum of evidence will not be disturbed unless the
appellate court determines “as a matter of law that no one could reasonably
find the evidence to be clear and convincing.” Murillo v. Hernandez, 79 Ariz.
1, 9 (1955) (quoting Paulsen v. Coombs, 253 P.2d 621, 624 (Utah 1953)
(Crockett, J., concurring in part and dissenting in part)). This approach to
reviewing a termination order ensures that the appropriate deference is
afforded to the juvenile court’s factual findings while maintaining the
10
BRIONNA J. V. DCS/A.V.
Opinion of the Court
appellate court’s role in properly reviewing the juvenile court’s legal
conclusions.
¶32 Turning to the facts in this case, viewing the record in the light
most favorable to upholding the juvenile court’s findings and applying our
deferential standard of review, we conclude the court of appeals erred in
failing to adhere to these standards and instead incorrectly reweighed the
evidence presented at the termination hearing.
¶33 As previously mentioned, the juvenile court found that
Mother displayed volatile and disruptive behaviors toward A.V.
throughout the four-year dependency. Additionally, Mother’s long-term
and well-documented personality disorders made it impossible for her to
parent A.V. in a reliable and competent manner. Mother was also not
amenable to therapy to make the necessary behavioral changes and
admitted that she engaged in services to satisfy the juvenile court—not to
improve her ability to parent her daughter.
¶34 Despite this uncontroverted evidence, the court of appeals
asserted, without analysis, that it did not agree “that the facts warranted
the conclusion that Mother was unable to ‘safely and effectively parent
[A.V.].’” Brionna J., 253 Ariz. at 277 ¶ 28. Failing to agree with the juvenile
court’s factual findings, however, is not the appropriate standard. The
court of appeals incorrectly reweighed the evidence presented at the
termination hearing to arrive at its conclusion.
¶35 Regarding the statutory ground for termination, the juvenile
court determined the state proved § 8-533(B)(8)(c)’s elements by clear and
convincing evidence because the evidence presented established that
“Mother has demonstrated she is unable and/or unwilling to appropriately
regulate her emotions and safely and effectively parent her daughter.” The
court of appeals rejected this conclusion and, again without analysis, stated
that it did not agree “that the statutory ground was proved by clear and
convincing evidence.” Id. at 278 ¶ 29. This type of perfunctory finding does
not comport with the level of appellate review required in termination
cases. See Juv. Action No. JD-561, 131 Ariz. at 27 (concluding that parental
11
BRIONNA J. V. DCS/A.V.
Opinion of the Court
rights may not be changed without “strict compliance with the statutes
involved”).
¶36 In sum, reasonable evidence supports the juvenile court’s
factual findings, and the juvenile court did not clearly err in determining
that the statutory ground for termination was proven by clear and
convincing evidence.
¶37 Amici Pima County Public Defender’s Office and Maricopa
County Legal Defender’s Office assert that we should adopt a de novo
standard when reviewing the sufficiency of evidence underlying the
grounds for termination. This argument, however, would expand the
issues on appeal and address an argument not made by either party. As
such, we decline to address it. See Vangilder v. Ariz. Dep’t of Rev., 252 Ariz.
481, 493 ¶ 46 (2022) (explaining that “[b]ecause ‘[a]micus curiae will not be
permitted to create, extend, or enlarge the issues’ on appeal, we need not
resolve” the issues that the parties did not present for review (second
alteration in original) (quoting City of Phoenix v. Phx. Civic Auditorium &
Convention Ctr. Ass’n, 99 Ariz. 270, 274 (1965))).
III.
¶38 Finally, the court of appeals implied that it had the authority
to dismiss an underlying dependency finding in an appeal vacating a
juvenile court’s termination order. Brionna J., 253 Ariz. at 278 ¶¶ 30–31. We
disagree.
¶39 As an initial matter, the validity of the juvenile court’s
dependency order was not before the court of appeals. An appellate court’s
jurisdiction is limited to a party’s notice of appeal or cross-appeal. See, e.g.,
A.R.S. § 12-120.21(A)(1); ARCAP 8(a)–(b); Lee v. Lee, 133 Ariz. 118, 124 (App.
1982) (“The court of appeals acquires no jurisdiction to review matters not
contained in the notice of appeal.”).
¶40 Here, the dependency finding was not identified in Mother’s
notice of appeal, and she only sought review of the termination order.
Consequently, the court of appeals’ jurisdiction was limited to the issue
contained in Mother’s notice of appeal. If a parent seeks to challenge the
12
BRIONNA J. V. DCS/A.V.
Opinion of the Court
circumstances that caused removal of a child from his or her care, that
action should be either instituted during the dependency proceeding or
included in the notice of appeal of a termination order.
¶41 Although Mother did not seek review of the juvenile court’s
dependency finding, the court of appeals nonetheless implied that it had
the authority to dismiss the dependency when it vacated the termination
order. See Brionna J., 253 Ariz. at 278 ¶¶ 30–31. The court of appeals’
reliance on Donald W. v. Department of Child Safety, 247 Ariz. 9, 18–19 ¶¶ 27–
30 (App. 2019), as support for this putative power is misplaced.
¶42 In Donald W., a father’s rights to his child were terminated
under § 8-533(B)(8)(c). Id. at 17 ¶ 25. In contrast to the dearth of analysis
displayed in examining the statutory ground for termination in this case,
the Donald W. court examined each of the findings under § 8-533(B)(8)(c)
and vacated the termination order because of the “complete absence of
evidence in the record to support the juvenile court’s findings and
conclusions supporting the termination.” Id. at 28 ¶ 82. Although it
concluded that the juvenile court’s dependency finding was based on
insufficient evidence, see id. at 18 ¶ 27, the court of appeals did not dismiss
the dependency when it vacated the termination order. See id. at 28 ¶ 82.
¶43 Here, the court of appeals misconstrued Donald W. and erred
when it insinuated that it had the authority to dismiss a dependency finding
after vacating a termination order. See Brionna J., 253 Ariz. at 278 ¶¶ 30–31.
To the contrary, if the court of appeals vacates a termination order, the
dependency finding remains in effect and the matter should be remanded
to the juvenile court so that it may review whether the child continues to be
dependent. See A.R.S. § 8-847(A) (“After the [dependency] disposition
hearing, the court shall hold periodic review hearings at least once every
six months . . . .”); see also Ariz. R. P. Juv. Ct. 341(a) (“Pursuant to A.R.S. § 8-
847, the court must conduct periodic review hearings at least once every 6
months after the disposition hearing to review the progress of the parties in
achieving the case plan goals and determine whether the child continues to
be dependent.”).
13
BRIONNA J. V. DCS/A.V.
Opinion of the Court
¶44 In concurring with the result in this case, Justice Bolick
continues his long-standing criticism of Arizona’s process for terminating
parental rights. Infra ¶ 49. Here, our colleague denounces the standard
used to review the juvenile court’s finding regarding the statutory ground
for termination by asserting that this standard does not satisfy due process
requirements. With all due respect, our colleague’s critique is misplaced.
¶45 The Arizona Legislature has already codified Santosky’s
holding. The Supreme Court in Santosky held that “due process requires
that the State support its allegations [regarding the statutory ground for
termination] by at least clear and convincing evidence.” 455 U.S. at 748. In
response, our legislature amended A.R.S. § 8-537(B) to require the state to
prove the statutory grounds for termination by clear and convincing
evidence. 1983 Ariz. Sess. Laws ch. 176, § 3 (1st Reg. Sess.). Thus, since the
1983 amendment, parents’ due process rights have been vindicated when
juvenile courts apply this heightened evidentiary standard and appellate
courts review termination rulings to ensure the state has met this standard.
¶46 As previously noted, this Court’s jurisprudence about how an
appellate court should review a juvenile court’s legal conclusion regarding
the statutory ground for termination has been less than precise. Supra ¶ 29.
In this case, we reiterate the well-established principle that a juvenile
court’s legal conclusion that a statutory ground for termination has been
proven by clear and convincing evidence will be affirmed unless “clearly
erroneous.” Jessie D., 251 Ariz. at 580 ¶ 10, 582–83 ¶¶ 26–27. In clarifying
what “clearly erroneous” means, we unremarkably reiterate that this
finding will be affirmed unless the appellate court determines “as a matter
of law that no one could reasonably find the evidence to be clear and
convincing.” Murillo, 79 Ariz. at 9 (quoting Paulsen, 253 P.2d at 624
(Crockett, J., concurring in part and dissenting in part)). For nearly seventy
years, beginning with Murillo, this Court has consistently concluded that
this is the appropriate standard of review for a decision that must be based
on clear and convincing evidence. See Stevenson v. Stevenson, 132 Ariz. 44,
46 (1982); King v. Uhlmann, 103 Ariz. 136, 142 (1968).
¶47 This well-accepted legal principle is hardly evanescent, and
the clarified standard set forth herein simply provides guidance to
14
BRIONNA J. V. DCS/A.V.
Opinion of the Court
appellate courts tasked with a consequential yet narrow duty in reviewing
termination cases.
CONCLUSION
¶48 For the foregoing reasons, we vacate the court of appeals’
opinion and affirm the juvenile court’s judgment terminating Mother’s
parental rights.
15
BRIONNA J. V. DCS/A.V.
JUSTICE BOLICK, Concurring in the Result
BOLICK, J., concurring in the result:
¶49 I agree with my colleagues that grounds for termination of
parental rights were clearly established here and that the court of appeals
impermissibly reweighed the very strong evidence to reach a different
result. I therefore join the Court in affirming the trial court’s well-grounded
opinion. However, the standard adopted by the Court for appellate review
of a trial court’s findings in termination proceedings further eviscerates
already emaciated parental rights in Arizona and therefore I cannot join the
opinion.
¶50 Parental rights are fundamental. I cannot say it better than our
statute: “The liberty of parents to direct the upbringing . . . of their children
is a fundamental right.” A.R.S. § 1-601(A). This right is firmly embodied
in our Constitution, see, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35
(1925); Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923), and of course fully
applies when the state takes the ultimate step of terminating that right. See
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing that parents have a
fundamental liberty interest in “the care, custody, and management of their
child” that “does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State”).
¶51 The state’s decision to impair a fundamental right is subject to
strict judicial scrutiny. See, e.g., Students for Fair Admissions v. President &
Fellows of Harvard College, 143 S. Ct. 2141, 2166 (2023). That too is expressed
in statute. “This state, any political subdivision of this state or any other
governmental entity shall not infringe on these rights without
demonstrating that the compelling governmental interest as applied to the
child involved is of the highest order, is narrowly tailored and is not
otherwise served by a less restrictive means.” § 1-601(B).
¶52 But this Court’s decisions applying statutes and rules in the
termination context often fall far short of this standard. In past cases, I have
written or joined opinions that are critical of the Court’s failure to provide
essential substantive and procedural protections for parental rights. See,
e.g., Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 92–101 ¶¶ 33–73 (2019)
(Bolick, J., dissenting); Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 152–56
¶¶ 24–39 (2018) (Bolick, J., concurring in result); Brenda D. v. Dep’t of Child
Safety, 243 Ariz. 437, 449–51 ¶¶ 44–54 (2018) (Timmer, J., and Bolick, J.,
16
BRIONNA J. V. DCS/A.V.
JUSTICE BOLICK, Concurring in the Result
dissenting in part and concurring in part); Marianne N. v. Dep’t of Child
Safety, 243 Ariz. 53, 59–64 ¶¶ 33–66 (2017) (Eckerstrom, J., Bolick, J., and
Gould, J., dissenting).
¶53 In this opinion, as in all our recent cases, the Court gives an
obligatory nod to Santosky and its recognition of fundamental parental
rights. Supra ¶ 18. But then it further weakens the already fragile
protections for parental rights in Arizona by according virtually conclusive
effect to the trial court’s findings regarding whether the statutory standard
for termination is met.
¶54 The Court notes that in past cases we have stated that a
reviewing court should “affirm a termination order unless the juvenile
court abuses its discretion or the court’s findings are not supported by
reasonable evidence.” Supra ¶ 29 (quoting Timothy B. v. Dep’t of Child Safety,
252 Ariz. 470, 474 ¶ 14 (2022) (citing Jessie D. v. Dep’t of Child Safety, 251 Ariz.
574, 579–80 ¶ 10 (2021))). I agree that we appropriately defer to a trial
court’s factual findings given it is in the best position to determine witness
credibility and evidence. However, here the Court “clarifies” that standard
in a way that renders appellate review not merely deferential, but
evanescent.
¶55 The Court here adopts a two-part appellate review standard.
First, the trial court’s factual findings are accepted if reasonable evidence
and inferences support them. Supra ¶ 30. Second, the trial court’s legal
conclusions regarding the statutory grounds for termination, which must
be established by “clear and convincing evidence,” must be affirmed unless
clearly erroneous. Supra ¶ 31. Going further, the Court explains that the
trial court’s determination that the evidence was clear and convincing is
clearly erroneous only if “the appellate court determines ‘as a matter of law
that no one could reasonably find the evidence to be clear and convincing.’”
Supra ¶ 31 (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)).
¶56 This “standard” that the Court adopts is impossible to flunk. If
a trial judge has found it to be satisfied, and the attorneys are presumed to
honor their oath to present only such evidence they deem meritorious, how
can “no one” reasonably consider the evidence to be clear and convincing?
17
BRIONNA J. V. DCS/A.V.
JUSTICE BOLICK, Concurring in the Result
¶57 Nor is the matter to which this rubber stamp is directed
inconsequential. To the contrary, it is directed to the mixed question of fact
and law “of whether the statutory factor is supported by the mandated
quantum of evidence.” Supra ¶ 31. Given, as the Court acknowledges, that
proving the statutory ground establishes parental unfitness as a matter of
law, supra ¶ 19, this determination is central to the disposition and should
not be reflexively ratified by the reviewing court.
¶58 I grant that the Court has applied this standard in other contexts.
But neither a contested realty trust, Murillo, 79 Ariz. at 6–7, nor property
division after divorce, Stevenson v. Stevenson, 132 Ariz. 44, 46 (1982), are
issues with momentous constitutional ramifications. If we really believe
there are fundamental rights involved, we need to ratchet due process
protections up, not down.
¶59 So, our termination of parental rights regime looks like this. A
final termination can be effectuated at a truncated hearing that was never
intended for that purpose. Marianne N., 243 Ariz. at 57 ¶ 21. Proving a
statutory ground for termination creates an irrebuttable presumption of
parental unfitness. Timothy B., 252 Ariz. at 480 ¶ 44 (Bolick, J., concurring
in result). After today, a trial court’s determination that the statutory
ground is proven by clear and convincing evidence is largely unreviewable.
A parent’s fundamental rights, to the extent they are considered at all, are
improperly relegated to the subsequent inquiry regarding the child’s best
interests. Alma S., 245 Ariz. at 154–155 ¶ 34 (Bolick, J., concurring in result).
I stand by my previous depiction of the parental rights termination process
as “a railroad with no stops and only one destination, in which judges act
as mere conductors.” Alma S., 245 Ariz. at 153 ¶ 28 (Bolick, J., concurring in
result).
¶60 For the foregoing reasons, I agree with my colleagues as to the
result here, but, with great respect, not with the overarching jurisprudential
framework that we continue to apply.
18