NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SHERRI C., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, T.O., Appellees.

No. 1 CA-JV 14-0193

Appeal from the Superior Court in Maricopa County

Nos. JD27351 and JS12080

The Honorable Cari A. Harrison, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

John L. Popilek PC, Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellee
SHERRI C. v. DCS, T.O.

Decision of the Court

2

MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma

joined.

G O U L D, Judge:

¶1 Sherri C. appeals from the juvenile court order revoking 

Sherri’s permanent guardianship of T.O. (“Child”). For the reasons that 

follow, we vacate the revocation of Sherri’s guardianship and remand for 

further proceedings.

BACKGROUND

¶2 Sherri and her spouse, Scott C., were granted permanent 

guardianship of Child in November 2012. Sherri and Scott, however, did 

not adopt Child. In 2013, when Child informed Sherri that she had been 

sexually molested by Scott during Sherri’s absence over the Labor Day 

weekend, Sherri immediately reported the incident to the police. In light 

of the report, DCS filed a dependency petition, taking Child into 

temporary physical custody in early November 2013, and the court held a 

dependency trial in June. DCS did not file a petition to revoke the 

guardianship.

¶3 At the conclusion of the dependency trial, in addition to 

urging the court to find Child dependent, DCS asked the court to revoke 

Sherri and Scott’s permanent guardianship. Although no written request 

to revoke the guardianship had ever been filed, there was no objection to 

this request. The court granted the dependency; it found DCS proved the 

allegations of the dependency petition by a “preponderance of the 

evidence,” namely, that Sherri failed to protect Child from abuse. The

court also stated, “I am going to order that the guardianship be revoked at 

this time as I believe that the statutes that apply to it would support the 

revoking or revocation of the guardianship.” 

¶4 Sherri timely appealed; she argues, among other things, that 

the court violated her due process rights when it revoked the permanent 
SHERRI C. v. DCS, T.O.

Decision of the Court

3

guardianship because no petition to revoke had been filed in accordance 

with Arizona Revised Statutes (“A.R.S.”) section 8-873.

1 

DISCUSSION

¶5 Because Sherri did not raise this argument in the juvenile 

court, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 

567, ¶ 19, 115 P.3d 601, 607 (2005); see also Monica C. v. Ariz. Dep’t of Econ. 

Sec., 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37, 42 (App. 2005) (applying 

fundamental error review when party did not object to noncompliance 

with juvenile court rules of procedure). Fundamental error is “’error 

going to the foundation of the case, error that takes from the [party] a 

right essential to [her] defense, and error of such magnitude that the 

[party] could not possibly have received a fair trial.’” Henderson, 210 Ariz. 

at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 

P.2d 980, 982 (1984). The complaining party bears “the burden of 

persuasion in fundamental error review,” and “must establish both that 

fundamental error exists and that the error in his case caused him 

prejudice.” Id. at ¶¶ 19-20.

¶6 We find error. The guardianship statutes expressly require

(1) that a petition to revoke the guardianship, alleging a significant change 

in circumstances, be filed; (2) that the court find, by clear and convincing 

evidence, that the alleged change actually exists; and (3) that the court find 

revocation is in the child’s best interests. A.R.S. § 8-873. No such petition 

was filed, and no findings relevant to the revocation were made. 

¶7 DCS argues that Sherri has not carried her burden to show 

resulting prejudice. However, the record makes the prejudice to Sherri 

clear. To revoke a permanent guardianship, the court must find, by clear 

and convincing evidence, a significant change in circumstances. A.R.S. 

§ 8-873; Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 556, 944 P.2d 68, 

71 (App. 1997) (requiring proof by clear and convincing evidence of a 

statutory ground for removal of a guardian). The court is also required to 

find that revocation is in the child’s best interests. A.R.S. § 8-873.

¶8 In this case, the court did not make findings that clear and 

convincing evidence supported revocation; instead, the court vaguely 

stated the guardianship should be revoked because it “believe[d] that the 

statutes that apply to it [guardianship proceedings] would support the 

 

1 Scott C. is not a party to this appeal. 
SHERRI C. v. DCS, T.O.

Decision of the Court

4

revoking or revocation of the guardianship.” The court based the 

revocation on its finding that a preponderance of the evidence showed 

Child was dependent, which was the incorrect burden of proof. See State 

v. King, 158 Ariz. 419, 425, 763 P.2d 239, 245 (1988) (finding misstatement 

of the burden of proof is fundamental error). “We will infer the necessary 

findings to affirm the superior court . . . only if the implied findings do not 

conflict with the court’s express findings.” State v. Zamora, 220 Ariz. 63, 

67, ¶ 7, 202 P.3d 528, 532 (App. 2009). Here, because the court expressly 

applied the standard for a dependency hearing to the guardian 

revocation, we cannot infer the findings necessary to support its 

revocation of the guardianship. 

¶9 Furthermore, the court did not consider statutorily required 

elements to support the revocation. Because the record is devoid of 

discussion of whether revocation of the guardianship was in Child’s best 

interests, we cannot presume the court considered Child’s best interests in 

the revocation. See A.R.S. § 8-873 (requiring proof that revocation is in the 

child’s best interests); see also Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 

Ariz. 43, 50, ¶ 17, 83 P.3d 43, 50 (App. 2004) (stating that appellate court 

will presume the juvenile court made every finding necessary to support 

the severance order “if reasonable evidence supports the order”). This is 

not a case of the juvenile court failing to expressly make a necessary 

finding that is nonetheless supported by the record. This is fundamental 

error and we must vacate the revocation of the guardianship.

2

 

2 By vacating the revocation of the guardianship, we need not 

address Sheri’s argument that DCS failed to prove the grounds for 

revocation by clear and convincing evidence. We also reject Sherri’s 

argument that the guardianship could not be revoked without DCS 

providing services to Sherri. See Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 

Ariz. 553, 557-58, 944 P.2d 68, 72-73 (App. 1997). Finally, we note the 

juvenile court’s dependency finding and physical custody orders 

removing Child from Sherri’s custody are not challenged on appeal and 

remain in place. 
SHERRI C. v. DCS, T.O.

Decision of the Court

5

CONCLUSION

¶10 We vacate the order revoking Sherri’s guardianship over 

Child and remand for further proceedings