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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELISSA D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, H.D., K.D., Appellees.

No. 1 CA-JV 15-0420

Appeal from the Superior Court in Maricopa County

Nos. JD28153, JS17676

The Honorable Kristin C. Hoffman, Retired Judge

AFFIRMED

COUNSEL

Melissa D., Mesa

Appellant

Arizona Attorney General’s Office, Tucson

By Dawn R. Williams

Counsel for Appellee Department of Child Safety
MELISSA D. v. DCS et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Andrew W. Gould and Judge Patricia A. Orozco joined.

S W A N N, Judge:

¶1 Melissa D. (“Mother”) appeals the superior court’s severance 

of her parental rights to H.D. and K.D. (collectively, “the children”). The 

superior court found that the children were dependent as to Mother, that 

Mother abused and neglected the children, and that severance was in their 

best interests. Mother appeals, pro per, on constitutional and evidentiary 

grounds. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2014, the Department1 received a report that the 

children were receiving unnecessary medical treatments contrary to their 

best interests and the recommendations of their doctors. Five days later, 

the Department took custody of the children. 

¶3 After over a year of the Department attempting to provide 

services to Mother and Chad D. (“Father”),2 the superior court tried 

dependency and severance petitions in a consolidated proceeding. See K.D. 

v. Hoffman, 238 Ariz. 278 (App. 2015). After twelve days of testimony, the 

superior court made detailed factual findings about the children’s 

respective medical histories before and after the Department took custody. 

 

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 

2014) (enacted), the Department of Child Safety is substituted for the 

Arizona Department of Economic Security in this matter. See ARCAP 

27. In the text of our decision, we refer to both the Department of Child 

Safety and the Arizona Department of Economic Security as “the 

Department.”

2 The superior court also severed Father’s rights, and he appealed. 

After his counsel filed an affidavit pursuant to Rule 106(G) of the Arizona 

Rules of Procedure for the Juvenile Court, Father’s appeal was dismissed. 
MELISSA D. v. DCS et al.

Decision of the Court

3

The superior court found that the children were dependent as to Mother 

because she sought excessive medical procedures the children did not need 

for medical conditions they did not have. See A.R.S. § 8-201(15). The 

superior court found clear and convincing evidence of abuse and neglect,

and further found by a preponderance of the evidence that severance was 

in the children’s best interests. See A.R.S. § 8-533(B)(2). Mother timely 

appeals. 

DISCUSSION

¶4 Mother argues that she was denied due process, the superior 

court improperly excluded evidence, the Department destroyed evidence,

and the evidence presented does not support the superior court’s findings.3 

I. DUE PROCESS

A. Right to a Jury Trial

¶5 Mother argues that the superior court improperly denied her 

a jury trial. Neither the Arizona or federal constitutions require a jury trial 

to sever parental rights. Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 

93, ¶ 17 (App. 2005). And in 2007, the Legislature eliminated the statutory 

right to jury trial in severance actions. Ariz. Dep’t of Econ. Sec. v. Reinstein, 

214 Ariz. 209, 213, ¶ 14 (App. 2007). The superior court correctly denied 

Mother’s request. 

B. Access to and Seal of Court Records

¶6 Mother next argues that she was denied access to exhibits and 

records during trial and on appeal and that the records should be made 

public. 

¶7 In April 2015, the superior court prohibited Mother from 

having any further unsupervised access to any of the case’s records. The 

superior court appointed a private party to retain the records and provide 

her with supervised access. We agreed such precautions were necessary

 

3 Mother also contends that her house and computer were searched in 

violation of the Fourth Amendment. The record contains nothing 

regarding such an incident, and we do not address the issue. Mother also 

urges us to disregard the Department’s answering brief for untimeliness. 

However, the Department showed good cause for the delay, and we 

properly extended time. 
MELISSA D. v. DCS et al.

Decision of the Court

4

and directed the superior court to make arrangements for Mother to have

the same supervised access to the records on appeal as at trial. 

¶8 The precautions were necessary to protect the children’s 

privacy and safety. Mother ran a website. Several times, confidential 

information about the children and court proceedings appeared online. 

Before trial, the superior court held Mother in contempt for violating 

confidentiality orders by putting pleadings online, posting videos to 

YouTube, participating in an internet radio show, and divulging detailed 

medical information about the children in interviews. In one interview, she 

acknowledged the confidentiality order and her decision to ignore it. The 

superior court specifically noted that Mother “has made it clear that she 

does not agree with the Court’s orders or its authority to protect the privacy 

of the children.” 

¶9 On the sixth day of trial, the superior court closed the 

proceedings to the public after partial recordings of trial testimony

appeared on a social networking site in violation of the admonition given 

eight times in the previous five trial days and signed by those in the 

audience. See A.R.S. § 8-525(D), (F); Ariz. R.P. Juv. Ct. 41(E), (G). Twice,

Mother threatened to post documents and information on the Internet 

when the superior court properly refused her request to admit unidentified

documents into evidence. 

¶10 Though Mother objected to exhibits that she had not seen or 

were not “in front” of her, Mother could have viewed the records at any 

time with supervision. During trial, the private party came to court and 

offered Mother a digital copy of the records to use during trial, but Mother 

refused. 

¶11 In view of Mother’s disregard for confidentiality orders and 

the instances of confidential information appearing on Mother’s website, 

we and the superior court properly prohibited her from having 

unsupervised access to court records. The trial proceedings were properly 

closed when it became clear that those in attendance would not obey court 

orders prohibiting disclosure of any personally identifiable information 

about the children. 

C. Waiver of Mother’s Presence at Trial

¶12 Mother next argues that she was prohibited from attending 

the trial. On the sixth day of trial, after the superior court closed the 

proceedings to the public, Mother claimed that she was locked in the 

courtroom and not permitted to exit during a recess. After the superior 
MELISSA D. v. DCS et al.

Decision of the Court

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court explained that the doors could only be locked to prevent entrance, not 

exit, Mother left the courtroom for the rest of the day.

¶13 On the seventh day, Mother arrived late and refused to enter 

the courtroom alone. The superior court ruled that only Mother could enter 

the courtroom. Mother chose not to enter. The superior court stated that 

Mother was welcome to enter at any time and had someone wait outside in

case she wished to enter; in some of the later proceedings, the door was left 

unlocked. 

¶14 The superior court properly closed the proceedings to the 

public to prevent further Internet postings but ensured that Mother could

enter at any time. The superior court found that Mother voluntarily waived 

her presence and we see nothing contrary in the record.

D. Mother’s Right to Self-representation

¶15 Mother next argues that the superior court denied her the 

right to represent herself at the proceedings. Mother asked to proceed pro 

per in February 2015. She proceeded pro per at trial. 

¶16 Three times during trial, the Department moved to have 

Mother’s right to self-represent rescinded. The superior court denied the 

motions each time, and did not revisit the issue even when Mother’s 

objections and outbursts grew more disruptive. When she departed on the 

sixth day of trial, Mother declared that she was leaving to “do court online” 

unless she could appear telephonically. The superior court denied her 

request and warned her that her right to self-representation would be

waived if she was not present. Mother then left for the day.

¶17 Immediately upon her departure, the superior court 

appointed her advisory counsel as her attorney and a guardian ad litem to 

represent her interests. The next trial day, Mother came to trial late with an 

unidentified person (“POA”) claiming to speak for her based on power of 

attorney. Mother asked that POA be allowed in with her, and the superior 

court denied the request. Nothing in the record suggests POA was a lawyer 

or could have represented Mother in the proceedings. 

¶18 Nevertheless, Mother argues that the superior court should 

not have permitted her guardian ad litem or appointed counsel to represent 

her. When she came to the courtroom door with POA, she gave the court 

documents purporting to terminate the guardian ad litem and her 

appointed counsel. The attorney then moved to withdraw. In ruling on the 

motions, the superior court relied on Sixth Amendment factors: 
MELISSA D. v. DCS et al.

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[W]hether an irreconcilable conflict exists between counsel 

and the accused, and whether new counsel would be 

confronted with the same conflict; the timing of the motion; 

inconvenience to witnesses; the time period already elapsed 

between the alleged offense and trial; the proclivity of the 

defendant to change counsel; and quality of counsel.

State v. Torres, 208 Ariz. 340, 344, ¶ 15 (2004) (citation omitted). The superior 

court found that all five factors weighed against appointing new counsel or

permitting the withdrawal halfway through trial. We agree these factors 

also apply to severance trials. There was no abuse of discretion applying 

them to these facts. See id. at 343, ¶ 9 (acknowledging the standard of 

review on appeal). 

E. Judicial Bias

¶19 Mother argues that the trial judge was generally biased. She 

filed two motions seeking to disqualify judges who presided over portions 

of the case. Both motions were baseless. Like the presiding judges who 

decided the motions, we perceive no evidence of judicial bias in this record

— indeed, the trial judge made every effort to afford Mother the full 

measure of due process despite the obstacles she raised.

¶20 After Mother stopped attending trial, the Department moved 

several times to have Mother’s absence deemed admission of the allegations 

and her rights severed. Each time the trial judge denied the request, giving 

Mother an opportunity to return and participate in the proceedings.

Additionally, when Mother was present, the trial judge gave her significant 

leeway even when her behavior was disruptive. 

¶21 Mother similarly accuses this court of bias on appeal because 

we limited her access to the records and did not make them public. This 

court’s orders, though perhaps not the orders Mother sought, were not the 

product of bias — this case required extraordinary measures after the 

children’s personal information was released online and discussed in radio 

programs in violation of Arizona law. See supra ¶¶ 8–9; see A.R.S. § 8-

525(D), (F); Ariz. R.P. Juv. Ct. 41(E), (G). 

II. EVIDENTIARY OBJECTIONS

¶22 Mother next argues evidence was improperly excluded by the 

superior court and destroyed by the Department. We review the superior 

court’s admission of evidence for an abuse of discretion. See State v. Garcia, 

200 Ariz. 471, 475, ¶ 25 (App. 2001).
MELISSA D. v. DCS et al.

Decision of the Court

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A. J.D.

¶23 On the third day of trial, Mother moved to allow her older 

child (“J.D.”) to testify as a character witness in the middle of the 

Department’s case-in-chief. The superior court’s denial of that request was 

entirely proper. See Ariz. R. Evid. 611. Nonetheless, the court left open the 

possibility Mother could call J.D. during her case-in-chief. The court did 

not err.

B. K.D.

¶24 Mother also challenges the superior court’s refusal to let K.D. 

testify. On the fourth day of trial, K.D. requested, through counsel, to 

attend the trial and possibly testify. The superior court denied the request,

finding that attending or participating in the proceedings was not in K.D.’s 

best interests. K.D. filed a special action arguing that children have an 

absolute right to testify in severance and dependency hearings. K.D., 238 

Ariz. at 279-80, ¶¶ 1, 5. We accepted jurisdiction but denied relief. Id. at 

281, ¶ 11. We held that the superior court may consider the best interests 

of the child in determining whether to allow the child’s testimony at such 

hearings. Id. at ¶ 10. 

¶25 Though we held that the court was right to consider K.D.’s 

best interests, we were not asked and did not decide whether the superior 

court abused its discretion by prohibiting K.D. from appearing or testifying. 

See id. at 279 n.1, 281, ¶¶ 5, 10. We do so now and find no abuse of 

discretion.4 K.D.’s therapist testified that it would be detrimental to K.D.’s 

stability and safety and could be traumatizing, setting back K.D.’s recovery. 

A forensic psychologist with the Department who evaluated K.D. also 

opined that it would be detrimental for K.D. to attend or testify at trial. 

¶26 The superior court acted properly, and Mother’s rights were 

not impaired. See Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305–07, ¶¶ 12, 

19 (App. 2014) (noting that severance trials are civil matters and parents 

have no federal or state constitutional right to confront witnesses and that

the best interests of the child must be balanced with a parent’s right to due 

process).

 

4 Even if K.D. had testified at trial, it would have probably harmed 

Mother’s case. K.D.’s counsel indicated K.D. “want[ed] the opportunity to 

confront her mother.” Thus, excluding her testimony was not prejudicial 

and may have prevented additional damaging testimony. 
MELISSA D. v. DCS et al.

Decision of the Court

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C. Documents and Exhibits on Cross-examination

¶27 On two occasions, the superior court did not allow Mother to 

impeach witnesses with documents that were not in evidence or had not 

been disclosed. However, the superior court permitted Mother to use 

documents if she could locate them in the official exhibits. On numerous 

occasions the superior court sustained objections to Mother offering facts 

while cross-examining witnesses. We perceive no abuse of discretion in the 

evidentiary rulings or orders prohibiting Mother from offering testimony 

in the form of questions. 

D. Witnesses in Mother’s Case-in-chief

¶28 On the tenth day of trial, the Department rested, and the

superior court asked Mother’s counsel to call her first witness. Mother had 

waived her presence and had refused to meet with or talk to her appointed 

counsel. Her counsel could only rely on Mother’s disclosure statement. The 

statement included, inter alia, state legislators, a superior court judge, K.D.’s 

counsel, the Maricopa County Sherriff, J.D., and the children. The 

descriptions of their potential testimony were vague and mostly referenced 

issues irrelevant to the proceeding. The list did not include addresses or 

sufficient information to subpoena the few people on the list who could 

have testified. Her attorney therefore rested the case without calling any 

witnesses. By failing to appear, make proper disclosures, or communicate 

with her appointed counsel, Mother left her counsel with no witnesses. The 

court committed no error.

E. Spoliation

¶29 Mother also contends that evidence that would have shown

the children were abused in the Department’s custody was destroyed. 

Before trial, Mother filed a “motion to dismiss trial” and a “request for 

sanctions” arguing, in part, that the Department and its attorney destroyed 

evidence that the foster placement abused the children. The Department 

explained that the former court-appointed special advocate (“CASA”) had 

recorded conversations with the children. When asked to disclose the 

recordings, the CASA claimed to have destroyed them. 

¶30 We find no admissible evidence in the record concerning the 

alleged abuses or the content of any recordings. From the record, it appears 

that the CASA’s recordings may have pertained to the children’s initial 

weight loss while they were in the Department’s custody. At trial, Mother 

contended that the children’s weight loss endangered their health. 

Witnesses testified about the children’s weight loss, and Mother cross-
MELISSA D. v. DCS et al.

Decision of the Court

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examined on the issue. Mother could have called the CASA to the stand 

during her case-in-chief to testify about the allegedly destroyed tapes and 

their content. She could have questioned the CASA about what she 

observed during the children’s early days in the Department’s custody. But

Mother waived her presence for her case-in-chief and left her attorney with 

no useable witness list. See supra ¶ 28. 

¶31 The record does not indicate that the Department was ever in 

possession of any recordings, or that it destroyed or otherwise failed to 

disclose any evidence. Dismissal was not warranted.

III. SUFFICIENCY OF THE EVIDENCE

¶32 Mother’s final contention is that the evidence presented at 

trial was insufficient to support the superior court’s findings that Mother 

abused and neglected the children, and that severance was in their best 

interests.

5

¶33 The right to custody of one’s child is fundamental but not 

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

2004). To sever a parent’s rights, the Department must show by clear and 

convincing evidence at least one of the statutory factors. Dominique M. v. 

Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 7 (App. 2016); see also A.R.S. § 8-

533(B). The Department must also show by a preponderance of the 

evidence that severance is in the children’s best interests. Dominique M., 240 

Ariz. at 98, ¶ 7. On appeal, we will not reweigh the evidence and will accept 

the superior court’s findings if they are supported by reasonable evidence.

Id. at ¶ 6. 

¶34 Though Mother is pro per by choice, she is held to the same 

standard as a lawyer, Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 12 (App. 1999), 

and she has failed to provide any citations to the record to justify her factual 

contentions, see ARCAP 13(a)(5). We have conducted our own review of 

the record, and we find sufficient evidence to support severance.

 

5 We do not separately address the dependency finding as the clear 

and convincing evidence of abuse and neglect is enough to also show 

dependency by preponderance of the evidence, particularly that the 

children’s “home is unfit by reason of abuse, neglect, cruelty or depravity 

by a parent” under A.R.S. § 8-201(15)(a)(iii). See Louis C. v. Dep’t of Child 

Safety, 237 Ariz. 484, 488, ¶¶ 11–12 (App. 2015).
MELISSA D. v. DCS et al.

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A. Abuse and Neglect

¶35 Mother first argues that the superior court did not give 

enough weight to evidence that the children were diagnosed with serious 

health issues by medical professionals. The superior court found that 

Mother interfered with the children’s medical care, did not follow advice 

from medical providers, and coached the children to act in certain ways in 

order to receive additional medical care. The superior court concluded the 

children were “dramatically” healthier in the Department’s custody, and 

we see ample evidence in the record to support its conclusion. 

¶36 An expert testified that on reviewing the children’s 

voluminous medical records, the children were “absolutely” the victims of 

Factitious Disorder.

6 In the 21 months before the Department took custody, 

the children collectively had 87 doctors’ visits, 17 hospitalizations, in-home 

nursing, and wheelchairs. Additionally, Mother was advocating for oneon-one nursing care while they were at school in case they suffered an 

allergic reaction or asthma attack. 

¶37 The evidence clearly shows that Mother advocated drastic

and unnecessary medical procedures, in some cases for problems that were

not medically verified. For example, there was evidence that Mother tried

to create specific symptoms or interfere with care, such as feeding a child

constipating foods, then taking the child to urgent care for an x-ray because 

the child was “backed up”; seeking medications for a urinary tract infection 

that would cause constipation despite the child’s alleged history of 

constipation; bribing the children to behave certain ways in front of doctors; 

giving misinformation about the results of medical tests to health care 

professionals; and turning off IV feeds while the children were in the 

hospital, preventing them from receiving the treatments ordered by their 

doctors. 

¶38 While in the Department’s custody, H.D. has not had stool 

impactions or needed “cleanouts,” despite regularly needing them in 

Mother’s care. K.D.’s weight issues were at their lowest point while Mother 

still had visits with the children, then rebounded to the normal range when 

the visits stopped. Though the children were given gastro stomach tubes 

(“feeding tubes”) due to reported symptoms of gastroparesis, they now eat 

 

6 We use “Factitious Disorder” to include all of the terms used 

interchangeably in the record including Munchausen by proxy, factitious 

disorder, illness falsification, and factitious disorder imposed on another 

with illness falsification. 
MELISSA D. v. DCS et al.

Decision of the Court

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orally, maintain a good weight, and can, or may soon be able to, have their 

feeding tubes removed. The children’s current doctor testified that if the 

children had gastroparesis, some symptoms should have manifested 

themselves in the time they have been in the Department’s custody. The 

children have not required, used, or wanted to use wheelchairs and have 

not reacted to any of their alleged allergens. 

¶39 Mother next argues that the superior court did not give 

enough weight to the billing statements for “failure to thrive” while the 

children have been in the Department’s custody. Mother does not point to 

any billing statements in the trial record to support this claim, and we see 

none. See ARCAP 13(a)(4), (5), (7). Even if such evidence were in the record, 

we will not reweigh the evidence on appeal. Jesus M. v. Ariz. Dep’t of Econ. 

Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). The medical and expert testimony 

established that the children are far healthier in the Department’s custody 

than they were in Mother’s, and billing statements that include no medical 

details would not even slightly move the scale given the weight of evidence 

that Mother medically abused the children.

B. The Children’s Best Interests

¶40 The superior court must find that the children will 

affirmatively benefit from the severance or be harmed by the continued 

relationship with the parent. In re Maricopa Cnty. Juv. Action No. JS-500274, 

167 Ariz. 1, 5 (1990). Here, there is ample evidence of both. The children 

are adoptable and their current foster home is a possible adoption 

placement. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 17 (2016) 

(“[D]epending on the circumstances, adoption can provide sufficient 

benefits to support a best-interests finding . . . .”). The children have 

expressed that they do not wish to return to Mother’s care, and because 

Mother refused the Department-offered services to treat her probable 

psychological issues, did not obey the rules for visitation, and continues to 

believe the children are ill, there is a high risk the children would suffer 

continued medical abuse in her custody. See Yuma Cnty. J-88-201, J-88-202, 

J-88-203, 172 Ariz. 50, 53 (App. 1992) (requiring the Department to make 

“diligent efforts” to reunite the family). The superior court properly found 

that severance is in the children’s best interests.
MELISSA D. v. DCS et al.

Decision of the Court

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CONCLUSION

¶41 For the foregoing reasons, we affirm.