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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

YVETTE L., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.R., D.R., J.R., Appellees.

No. 1 CA-JV 20-0006

Appeal from the Superior Court in Maricopa County

No. JD35998

The Honorable David O. Cunanan, Judge

VACATED AND REMANDED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix

By Jamie R. Heller

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Cathleen E. Fuller

Counsel for Appellee Department of Child Safety

FILED 8-25-2020
YVETTE L. v. DCS et al.

Decision of the Court

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MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig

joined.

W I L L I A M S, Judge:

¶1 Yvette L. (“Mother”) appeals the juvenile court’s order 

severing her parental rights to her children, N.R., D.R., and J.R. (collectively 

the “Children”). We vacate the termination order, but remand because the 

dependency is ongoing.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Osbaldo R.1 (“Father”) are the biological parents 

of the Children. In May 2018, Mother was arrested, incarcerated, and 

charged with federal felony offenses arising in New Mexico. Upon her 

release from custody in June 2018, Mother contacted police to report the 

Children missing. During the police and Arizona Department of Child 

Safety (“DCS”) investigation, Mother recanted after remembering the 

Children were with their grandmother. Mother self-reported suffering from 

anxiety, depression, bipolar disorder, seizures, and acknowledged she 

faced the likelihood of future incarceration. Mother’s erratic and seemingly 

impaired behavior led DCS to take temporary custody of the Children and 

file a dependency petition. The petition alleged Mother had neglected the 

Children due to her substance abuse and mental health issues and failed to 

provide for the Children’s basic needs. The Children remained with 

grandmother who had been caring for them.

¶3 When Mother failed to appear for a pretrial conference in 

August 2018, the Children were adjudicated dependent. Thereafter, 

Mother’s participation in reunification services was inconsistent. When 

Mother failed to appear at a review hearing in February 2019, the Guardian 

ad Litem (“GAL”) requested a change in case plan to severance and 

adoption. The juvenile court granted the request, and the GAL filed a

motion to terminate Mother’s parental rights on the ground of 

1 Father’s parental rights were terminated in the same proceeding when he 

entered a no contest plea, but he is not a party to this appeal.
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abandonment. Mother spent additional time incarcerated in New Mexico

through January 2019, and again towards the end of 2019 after violating the 

terms of her probation. While out-of-custody, Mother participated in 

counseling as a term of probation in her criminal case. Mother maintained

somewhat regular contact with the Children, both during her incarceration, 

and once she was released from custody. Despite being unaware of 

Mother’s whereabouts during much of 2019, DCS was aware of Mother’s 

ongoing participation in counseling, as well as her contact with the 

Children.

¶4 The severance trial was held in December 2019. At the 

conclusion of the trial, and following closing arguments, the following 

exchange took place between the court and the GAL:

[Court]: I think there’s a time [in] care argument that has been 

made as well –- are you asking to amend your petition to 

reflect it to conform with the evidence that’s been presented?

[GAL]: I would so move, Your Honor.

¶5 Over Mother’s objection, the court then amended the motion 

for termination to include a second ground for severance, namely a fifteenmonth out-of-home placement ground. The juvenile court then terminated

Mother’s parental rights on the amended ground of fifteen-months in an 

out-of-home placement, as well as based upon the best interests of the 

Children. In a subsequent written order, issued two months later, the 

juvenile court added abandonment as a basis for termination. Mother 

timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 

12-2101(A), and 12-120.21(A).

DISCUSSION

¶6 We review a severance ruling for an abuse of discretion, 

accepting the court’s factual findings unless clearly erroneous, Mary Lou C. 

v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and viewing the 

evidence in the light most favorable to sustaining the court’s ruling, Manuel 

M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the 

juvenile court “is in the best position to weigh the evidence, observe the 

parties, judge the credibility of witnesses, and resolve disputed facts,” we 

will affirm an order terminating parental rights if reasonable evidence 

supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 

(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, 

¶ 4 (App. 2004)). “To justify termination of the parent-child relationship, 

the [juvenile] court must find, by clear and convincing evidence, at least one 
YVETTE L. v. DCS et al.

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of the statutory grounds set out in [A.R.S. §] 8-533,” and find, by a 

preponderance of the evidence “that termination is in the best interest[s] of 

the child[ren].” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 

(2000); accord Ariz. R.P. Juv. Ct. 66(C). 

I. The Juvenile Court Erred in Amending the Motion for Termination at the 

Conclusion of Trial

¶7 At the conclusion of trial, following closing arguments, the 

juvenile court inquired whether the GAL desired to amend the motion for 

termination to include the ground of fifteen months in an out-of-home 

placement as a basis for severance. See A.R.S. § 8-533(B)(8)(c). Once the 

court inquired, the GAL orally moved for the amendment, and, over 

Mother’s objection, the court granted the same. Mother argues the GAL’s 

motion to amend was untimely.

¶8 “Adequate notice is a fundamental element of due process.” 

Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 55, ¶ 44 (App. 2013). And 

although a severance trial should “be as informal as the requirements of 

due process and fairness permit,” Ariz. R.P. Juv. Ct. 66(D), “[d]ue process 

[also] requires prior notice of [allegations] so that the accused has a 

meaningful opportunity for explanation and defense,” Comeau v. Ariz. State 

Bd. of Dental Exam’rs, 196 Ariz. 102, 108, ¶ 28 (App. 1999). 

¶9 Here, the juvenile court seemingly suggested, and then 

granted, an amendment to the motion for termination after the presentation 

of all evidence and arguments had concluded. Consequently, Mother was 

given no advance notice of a fifteen month out-of-home placement

allegation, or opportunity to defend against the same. Indeed, DCS 

concedes the error. Because the juvenile court violated Mother’s due 

process rights by granting the amendment at the conclusion of trial, we 

vacate the court’s order terminating Mother’s parental rights based upon 

fifteen months in an out-of-home placement. See Roberto F., 232 Ariz. at 55-

56, ¶¶ 43-50 (holding the juvenile court violated a father’s due process 

rights when it allowed the foster parents to amend the motion for 

termination to add a new ground on the fourth day of a five-day severance 

trial).

II. Abandonment

¶10 Although DCS’ dependency petition alleged neglect, 

substance abuse and mental health as grounds for the dependency, the GAL

alleged only abandonment when seeking to terminate Mother’s parental 

rights. Section 8-531(1) defines abandonment as:
YVETTE L. v. DCS et al.

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[T]he failure of a parent to provide reasonable support and to 

maintain regular contact with the child, including providing 

normal supervision. Abandonment includes a judicial finding 

that a parent has made only minimal efforts to support and 

communicate with the child. Failure to maintain a normal 

parental relationship with the child without just cause for a 

period of six months constitutes prima facie evidence of 

abandonment.

¶11 At the conclusion of the severance trial, the juvenile court 

made findings based upon the dependency allegations, as opposed to the 

motion for termination, namely: (1) neglect, (2) substance-abuse and (3) 

mental-health. The court, however, did not address abandonment, the only 

properly-alleged ground for severance.

¶12 Neither the GAL, who filed the motion for termination, nor 

DCS who joined in the motion, noted the court’s omission or requested 

findings regarding abandonment. The court directed the GAL to file 

proposed findings of fact and conclusions of law within “ten days of [the 

December 4, 2019 severance trial].”

Counsel, I am going to order that the –- Counsel provide 

written findings of fact and conclusions of law to the Court 

with[in] ten days of today’s date. Please circulate those to the 

other parties as well for their approval or if they have any 

modifications they wish to make the Court aware of.

¶13 Two months later, on February 5, 2020, the GAL filed the 

proposed findings of fact and conclusions of law, a four-page document.

The court endorsed the proposed order the following day and it was filed

with the clerk’s office on February 11, 2020. The order is only partially 

consistent with the findings made at trial. Specifically, the written order: (1)

omits any reference to neglect or substance abuse findings the court made 

at trial, (2) includes findings the court made about the fifteen months in an 

out-of-home placement ruling, and (3) adds a conclusion of law addressing

abandonment, which the court did not make nor did the court address.

Even then, there are no findings of fact, let alone the specific findings of fact 

required for abandonment. See Ariz. R.P. Juv. Ct. 66(F)(2)(a) (providing that 

“[a]ll findings and orders shall be in the form of a signed order or set forth 

in a signed minute entry” and, if the movant met its burden of proof, “the 

court shall . . . [m]ake specific findings of fact in support of the termination 

of parental rights and grant the motion or petition for termination”).
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¶14 The order entered by the court makes no findings of fact 

addressing abandonment. Indeed, the only findings of fact in the order 

describe the parties and that Mother was served with the motion for 

termination through her attorney. The conclusions of law paraphrase and 

address the statutory ground of abandonment. But such minimal 

conclusions of law cannot save inadequate, but required, findings of fact.

See id.

¶15 Here, the GAL’s proposed order, which the court then

entered, does not accurately reflect the court’s findings made at trial and 

does not make the findings of fact required for abandonment. Accordingly,

the record lacks the required specific findings to support the termination of 

Mother’s parental rights. We, therefore, vacate the severance order and 

remand for further proceedings.

CONCLUSION

¶16 We vacate the juvenile court’s order terminating Mother’s 

parental rights to the Children, but remand because the dependency is 

ongoing.