NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARCELLINA D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.D., Appellees.

No. 1 CA-JV 19-0067

Appeal from the Superior Court in Maricopa County

No. JD30088

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Sandra L. Nahigian

Counsel for Appellee DCS

FILED 9-5-2019
MARCELLINA D. v. DCS, A.D.

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.

C A T T A N I, Judge:

¶1 Marcellina D. (“Mother”) appeals from the superior court’s 

order severing her parental rights as to her son A.D. For reasons that 

follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother’s parental rights as to three other children (the 

“Children”) were terminated in a 2017 proceeding. That ruling is not at 

issue here, but the facts underlying that case are relevant to the instant 

appeal because the grounds for severance are circumstances that mirror 

those of the prior proceeding and thus provided a basis for the more recent 

severance under A.R.S. § 8-533(B)(10) (prior termination for the same cause

within the preceding two years).

¶3 In the 2017 proceeding, Mother’s parental rights as to the 

Children were terminated based on 9 and 15 months’ out-of-home 

placement. See A.R.S. § 8-533(B)(8)(a), (c). The superior court found that 

Mother had significantly neglected the Children before the Department of 

Child Safety (“DCS”) intervened. The Children had multiple medical and 

dental issues, including tooth decay, abscesses, and infections. One child 

had a cast on her leg for over six months, and when Mother finally took her

to the hospital complaining that the cast smelled, doctors discovered that 

the child’s calf had atrophied and her skin was thinning, placing her at a 

high risk of infection.

¶4 Despite the significant negative effect of the neglect, Mother 

did not make behavioral changes. The superior court noted in the 2017 

proceedings that “Mother was not fully engaged, had not fully participated 

in services, continued to be defensive, was not taking any responsibility, 

and was not making progress toward remediation.” The court was 

especially concerned that, notwithstanding the Children being in DCS care 

for more than two and a half years, Mother did not understand how her 

behavior harmed the Children. Based on Mother’s continued lack of insight 
MARCELLINA D. v. DCS, A.D.

Decision of the Court

3

and negligible progress, the court terminated Mother’s parental rights as to 

the Children.

¶5 A.D. was born six months later. Shortly thereafter, DCS 

learned that Mother had obtained only minimal prenatal care for A.D. She 

was unemployed and had no source of income, and she was living in a 

shelter, unable to provide for A.D.’s needs.

¶6 DCS took A.D. into care and initiated dependency 

proceedings. In September 2018, the superior court found A.D. dependent 

as to Mother, and DCS moved to terminate Mother’s parental rights.

¶7 In February 2019, the superior court conducted a termination 

adjudication hearing. The superior court severed Mother’s parental rights, 

finding grounds for severance based on the prior termination within the 

preceding two years and also finding that severance would be in A.D.’s best 

interests. Mother timely appealed, and we have jurisdiction under A.R.S. § 

8-235(A).

DISCUSSION

¶8 Mother argues that the superior court’s finding of grounds for 

severance was not supported by substantial evidence. She does not 

challenge the superior court’s finding that termination was in A.D.’s best 

interests.

¶9 Termination of parental rights requires clear and convincing 

evidence of a statutory ground set forth in A.R.S. § 8-533(B) and proof by a 

preponderance of the evidence that termination is in the best interests of the 

child. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). We 

review the superior court’s severance ruling for an abuse of discretion. 

Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We 

do not reweigh the evidence on appeal, Maricopa Cty. Juv. Action No. JV132905, 186 Ariz. 607, 609 (App. 1996), and we accept the superior court’s 

factual findings unless clearly erroneous. Seth M. v. Arienne M., 245 Ariz. 

245, 247, ¶ 7 (App. 2018).

¶10 Under A.R.S. § 8-533(B)(10), parental rights may be 

terminated when “the parent has had parental rights to another child 

terminated within the preceding two years for the same cause and is 

currently unable to discharge parental responsibilities due to the same 

cause.” The “same cause” is the factual cause that led to the prior 

termination, not necessarily the statutory ground on which it was based. 

See Mary Lou C., 207 Ariz. at 48, ¶ 11.
MARCELLINA D. v. DCS, A.D.

Decision of the Court

4

¶11 Here, as in the previous termination proceeding, Mother

failed to understand the risk of harm posed by her neglect, and she did not

engage in services or take responsibility for the circumstances leading to 

A.D. being placed in care. Mother’s behavior mirrored her actions during 

the previous dependency proceeding, in which she refused to take 

responsibility for her situation and lacked insight into how her actions 

affected the Children.

¶12 Mother delayed attending counseling for several months, 

then attended only 6 counseling sessions. Mother’s therapist noted that 

Mother maintained that she could care for A.D. and that DCS oversight was 

unnecessary. But although Mother set several treatment goals, she was 

resistant to treatment and made “no change” toward achieving those goals. 

The psychologist who conducted Mother’s psychological evaluation for the 

previous severance hearing similarly expressed concern about Mother’s

lack of engagement and progress, testifying that Mother had continued her 

pattern of failing to complete services.

¶13 Mother testified that she did not know why A.D. came into 

DCS care or why her parental rights had been terminated as to the Children. 

She was unaware that the Children came into DCS care suffering from tooth 

decay, abscesses, and infection. She indicated that she was unsure how 

many counseling sessions she had attended and could not adequately 

explain why she stopped attending counseling.

¶14 As in the Children’s dependency proceeding, Mother’s 

inability to make necessary behavioral changes and take accountability for 

her actions placed A.D. in jeopardy of neglect. Accordingly, the superior 

court did not err by severing Mother’s parental rights based on the same 

concerns underlying the prior termination proceedings.

CONCLUSION

¶15 For the foregoing reasons, we affirm.