IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

BENNIGNO R., ) 2 CA-JV 2013-0029

) DEPARTMENT B

Appellant, )

) O P I N I O N

v. )

)

ARIZONA DEPARTMENT OF ECONOMIC )

SECURITY, S.R., and L.R., )

)

Appellees. )

)

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. JD200500164R

Honorable Kevin D. White, Judge

AFFIRMED

Heard Law Firm

 By James L. Heard Mesa

 Attorney for Appellant 

Thomas C. Horne, Arizona Attorney General

 By Erika Z. Alfred Tucson

 Attorneys for Appellee Arizona

Department of Economic Security

K E L L Y, Presiding Judge.

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

OCT 30 2013
2

¶1 Bennigno R., biological father of S.R., born in August 1999, and L.R., born 

in January 2009, appeals from the juvenile court’s order terminating his parental rights to 

both children on the grounds of mental illness and length of time in court-ordered care, 

pursuant to A.R.S. § 8-533(B)(3) and (B)(8)(c), respectively. Bennigno maintains the 

court abused its discretion in denying his motion for summary judgment. He also 

contends the Arizona Department of Economic Security (ADES) had not proven that he 

had abandoned the children, that it had made a diligent effort to provide reunification 

services, or that termination of his rights was in the children’s best interests. We affirm 

for the reasons stated below.

¶2 We review the evidence in the light most favorable to sustaining the 

juvenile court’s ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, ¶ 13, 107 

P.3d 923, 928 (App. 2005). Thus, “we will accept the juvenile court’s findings of fact 

unless no reasonable evidence supports those findings” and the findings are clearly 

erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 

(App. 2002). 

¶3 The record and the evidence presented at the severance hearing established 

that this family, which had included four children who are not the subject of this appeal—

A.R., P.R., M.R., and B.R.—and their mother Juana M.,

1

had a lengthy involvement with 

ADES and Child Protective Services (CPS), a division of ADES. Between October 1998

and May 2009, CPS received numerous reports that the children were being neglected

 

1

Juana’s parental rights to S.R. and L.R. also were terminated and this court 

affirmed the juvenile court’s order. Juana M. v. Ariz. Dep’t of Econ. Sec., No. 2 CA-JV 

2013-0028 (memorandum decision filed August 13, 2013). 
3

and abused and that the parents were abusing drugs and alcohol. In 2004, for example, 

then two-year-old A.R. was found at a park by himself. Also in 2004, twelve-year-old 

P.R. reported she had been molested by her uncle, who subsequently admitted molesting

her. At around this time, Bennigno was on probation for a domestic-violence offense. 

¶4 In September 2005, a Pinal County Sheriff’s deputy found A.R., then three 

years old, walking on a highway at 3:00 in the morning in his underwear. The deputy 

located the child’s home, where he found S.R., then six years old, awake and in the care 

of an unconscious and apparently intoxicated uncle. The CPS investigator stated in the 

report to the juvenile court for the preliminary protective hearing that the home had been

“in a state of squalor” and the children were filthy. Two other children had been left with 

the maternal grandmother, whose home was equally filthy and squalid. 

¶5 The children were taken into protective custody on September 16, 2005, 

and ADES filed a dependency petition. The children were adjudicated dependent as to 

Juana after she submitted the issue to the court, and as to Bennigno after he reached an 

agreement with ADES during mediation. ADES provided the family with various 

services and in August 2006 the court dismissed the dependency. 

¶6 In October 2009, ADES again took the children into protective custody and 

filed a dependency petition after receiving reports of domestic violence incidents, neglect 

of the children, and sexual abuse of S.R. and P.R. by family members.2In February 

 

2

P.R. gave birth to a child after she was sexually abused by the paternal uncle. 
4

2010, Juana and Bennigno submitted the issue of dependency to the juvenile court and 

the court adjudicated the children dependent.3 

¶7 In May 2011, ADES filed a motion to terminate the parents’ rights to M.R., 

S.R., A.R., and L.R. on the grounds of length of time in court-ordered care and, as to 

Bennigno, mental illness, and, as to Juana, mental deficiency.4 After a four-day 

severance hearing between October 2011 and February 2012, the juvenile court found 

ADES had established the two grounds for terminating each parent’s respective rights

and although ADES had made “reasonable efforts to provide [the parents] with 

rehabilitative services,” the parents had not benefitted from those services and additional 

services would be futile. But, the court found that ADES had not sustained its burden of 

establishing termination of the parents’ rights as to S.R. and L.R. was in the children’s 

best interests “[i]n light of the bond they share[d] with their parents.” The court set the 

matter for a permanency hearing as to S.R. and L.R. 

¶8 Thereafter, ADES continued to provide the parents and children with

services. In August 2012, ADES filed a second motion to terminate the parents’ rights as 

to S.R. and L.R. on the same grounds alleged in the first severance motion. Before the 

hearing, Bennigno filed a motion for summary judgment in which he argued, “[r]es 

[j]udicata precludes [ADES] from re-litigating the Best Interest claim upon which this 

 

3Because P.R. had reached the age of majority, the adjudication did not include 

her.

4M.R. subsequently was withdrawn from the proceeding because she did not wish 

to be adopted. 
5

court has already ruled.” The juvenile court heard the motion on the first day of the 

severance hearing in December 2012 and denied it. 

¶9 Evidence presented at the three-day hearing included the foster mother’s 

testimony that she intended to relocate to North Carolina and wanted to adopt the 

children and take them with her. She testified she could not serve as a placement for the 

children if the court were to order a guardianship or other solution short of termination of 

the parents’ rights because she needed the permanency of adopting the children and 

assuming full responsibility for them. After taking the matter under advisement, the 

juvenile court granted ADES’s motion, again finding that ADES had proved the alleged 

statutory grounds of mental illness as to Bennigno, mental deficiency as to Juana, and as 

to both parents, length of time in court-ordered care. The court concluded termination of 

the parents’ rights was in the children’s best interests even though they were bonded with 

the parents and would be adopted by the foster mother and moved to another state, 

finding there was no “reasonable prospect” that the children could be returned to the 

parents’ care. This appeal followed the court’s entry of a final order. 

¶10 Bennigno argues the juvenile court “should have granted [his] Motion for 

Summary Judgment,” contending that the principle of res judicata precluded ADES from

re-litigating. But, Bennigno’s argument is cursory at best, generally claiming without 

citation to the record that the evidence presented by ADES was not new and citing only a 

single case broadly describing the principle of res judicata. Notably, he cites no authority 

suggesting the application of res judicata is appropriate in a severance action.
6

¶11 Based on the lack of proper and meaningful argument alone, we could 

summarily reject the arguments Bennigno makes in this portion of his brief. See Ariz. R. 

Civ. App. P. 13(a)(6) (opening briefs must present “[a]n argument which shall contain the 

contentions of the appellant with respect to the issues presented, and the reasons therefor, 

with citations to the authorities, statutes and parts of the record relied on”); Ariz. R. P. 

Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applies to juvenile appeals); City of 

Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 

2008) (appellate court will not address issues or arguments waived by party’s failure to 

develop them adequately); Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 

20, 26, 887 P.2d 550, 556 (App. 1994) (“[W]e will not consider issues not properly 

briefed.”). But even assuming Bennigno’s argument was presented and argued 

sufficiently, he has not persuaded us the juvenile court erred. 

¶12 “Generally, the denial of a summary judgment motion is not reviewable on 

appeal from a final judgment entered after a trial on the merits.” John C. Lincoln Hosp. 

& Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App. 2004). 

But if the denial was based on a point of law, we may review the ruling as part of our 

review of the final judgment on appeal. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 4, 

122 P.3d 6, 9 (App. 2005). Even assuming it is appropriate to review the juvenile court’s 

denial of Bennigno’s motion for summary judgment because it was based on the legal 

principle of res judicata, the court did not err. 

¶13 In his motion for summary judgment, Bennigno argued ADES had not 

alleged any “new facts or circumstances” in its second motion to terminate his parental 
7

rights that would distinguish that motion from the initial motion, which had been “fully 

litigated and resolved on the merits.” He asserted the juvenile court’s denial of the 

motion was a final judgment on the merits. Quoting Corbett v. ManorCare of America, 

Inc., 213 Ariz. 618, ¶ 13, 146 P.3d 1027, 1033 (App. 2006), he argued the first ruling

“‘bars further claims by parties or their privies based on the same cause of action.’” 

Acknowledging the “fluidity” of a child’s best interest, Bennigno maintained res judicata 

nevertheless bars ADES from re-litigating the issue to the extent the claim is 

“indistinguishable from the last claim that the Court previously ruled on.” 

¶14 In its response to the motion, ADES argued it would introduce at the 

second severance hearing evidence regarding the children’s best interests that had not 

been presented at the first severance hearing and that material fact issues existed 

precluding summary judgment. The new evidence consisted of the recent evaluations of 

the children by psychologist Al Silberman and new information regarding their 

placement. ADES argued, too, that the passage of a year since the first severance hearing 

was itself a change in the circumstances, noting the parents continued to be provided with 

services but had not improved their ability to parent. ADES also argued generally that 

strict application of the principle of res judicata in a child-welfare case is inappropriate. 

¶15 At the hearing on the motion for summary judgment, Bennigno argued 

ADES was required “to show that there [had been] a substantial change in circumstances 

to warrant a new trial” and did not “dispute that if they can prove that[,] that they are 

entitled to a new trial.” The juvenile court denied the motion for “each of the reasons 

cited by [ADES] in its response.” The court noted that “the findings [it had] made” after 
8

the first severance hearing “establish[ed] those issues for that period in time, and we’re 

here to address from that point forward.” 

¶16 At the outset, we agree with courts from other jurisdictions that the doctrine 

of res judicata must be given limited application to dependency adjudications and 

proceedings to terminate parental rights. As the court observed in People ex rel. L.S., 721 

N.W.2d 83 (S.D. 2006), for example, “when it comes to protecting children res judicata 

should be cautiously applied” because “‘[c]onsiderations regarding a child’s welfare are 

rarely, if ever, static. In fact, it is more likely that the child’s environment is constantly 

evolving, thus justifying the court’s continuing jurisdiction.’” Id. ¶¶ 24, 27, quoting State 

ex rel. J.J.T., 877 P.2d 161, 163 (Utah Ct. App. 1994). “[T]o effectively determine the 

best interests of a child, a court must be free from the imposition of artificial constraints 

that serve merely to advance the cause of judicial economy.” State ex rel. J.J.T., 877 

P.2d at 164. 

¶17 Here, the juvenile court did not err in refusing to apply res judicata and 

preclude re-litigation of the best-interest issue. The evidence established circumstances 

were different. New evidence was presented and almost a year had passed. The 

children’s need for permanency persisted and even intensified, and the record supported 

the court’s finding that the parents’ inability to have the children returned to them had not 

changed. 

¶18 Bennigno characterizes his second argument on appeal as challenging

whether ADES made a diligent effort to reunify him with his children and provide

appropriate services. But that is not the argument he ultimately raises. Rather, in two 
9

brief paragraphs, he simply asserts, without citation to the record or authority, that ADES 

did not provide him with sufficient direction, insisting he made “efforts to comply with 

the directives of ADES.” He maintains he was compliant with the case plan, visited his 

children, and “[i]n no way . . . abandoned his children.” 

¶19 The juvenile court found that ADES 

ha[d] made diligent efforts to provide appropriate 

reunification services to both parents, including psychological 

evaluations, visitation, counseling, parenting classes, 

substance abuse treatment, and urinalysis testing. Mother and 

Father have failed to benefit from these services in terms of 

resolving the underlying concerns regarding their ability to 

adequately parent, and they have been unable to remedy the 

circumstances that cause the children to be in an out-of-home 

placement. 

These findings were preceded by findings the court had made during the course of the 

dependency and when it denied ADES’s first motion to terminate the parents’ rights. 

Bennigno did not challenge those earlier findings and, except for requesting additional 

visitation in April 2010, he never asked that he be provided additional services or more 

direction before the second severance hearing. Consequently, we agree with ADES he 

has waived the right to challenge the propriety of the services at this juncture. See 

Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, n.8, 256 P.3d 628, 632 n.8 (App. 

2011). Moreover, as ADES points out, Bennigno further waived this claim during the 

severance hearing when he maintained during closing arguments that the sole issue for 

the court to decide was whether termination of his rights was in the children’s best 

interests. 
10

¶20 In any event, there was more than sufficient evidence in the record 

supporting the juvenile court’s finding that ADES had diligently provided appropriate

and reasonable reunification services and had thereby satisfied its statutory obligation. 

Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 19, 219 P.3d 296, 303 (App. 

2009) (ADES has statutory obligation to make reasonable efforts to reunify family). 

There was also evidence in the record that Bennigno had not benefitted from the services 

and additional services would have been futile. 

¶21 We also reject Bennigno’s assertion as part of this argument that ADES 

failed to show he had abandoned the children. ADES’s motion to terminate his rights 

was based on mental illness and length of time in court-ordered care. It never included 

abandonment as a ground for terminating his rights or, for that matter, for finding the 

children dependent as to him. ADES was not, therefore, required to establish he had 

abandoned them.

¶22 Finally, we reject Bennigno’s claim that there was insufficient evidence to 

support the juvenile court’s finding that termination of his rights was in the children’s 

best interests. Bennigno speculates that the children’s behavior was deleteriously 

affected by the prospect of moving to another state with the foster mother and away from 

their parents and siblings with whom they were connected. He contends the only reasons 

ADES “wanted to terminate [his] rights [was] because the placement wanted to move and 

didn’t want to be limited as a guardianship.” He also notes there was evidence a bond 

existed between him and the children.
11

¶23 Unlike statutory grounds for terminating a parent’s rights—which must be 

established by clear and convincing evidence—whether severance is in the child’s best 

interests must be proven by a preponderance of the evidence. A.R.S. §§ 8-533(B); 

8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). To 

establish best interests, ADES was required to show S.R. and L.R. “would derive an 

affirmative benefit from termination or incur a detriment by continuing in the 

relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 6, 100 P.3d 943, 

945 (App. 2004). Among the factors relevant to this determination is whether a current 

plan for the child’s adoption exists. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 

43, ¶ 19, 83 P.3d 43, 50 (App. 2004). The juvenile court also may consider whether the

current placement is meeting the child’s needs, see In re Maricopa Cnty. Juv. Action No. 

JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994), and may take into account that 

“[i]n most cases, the presence of a statutory ground will have a negative effect on the 

children,” In re Maricopa Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 

785, 788 (App. 1988). 

¶24 The juvenile court’s conclusion that termination was in the children’s best 

interests was preceded by thorough, specific factual findings for which there is ample 

support in the record. That evidence includes the testimony of CPS case managers, 

therapists, the foster mother, and numerous exhibits admitted at the hearing. The court 

found the foster mother’s testimony credible and compelling. She testified thirteen-yearold S.R. had been placed with her in July 2008, and three-year-old L.R. in March 2011. 

She stated she loves them, has cared and provided for them, and wants to adopt them,
12

adding, “they have been with me for so long and they feel safe around me, and I love 

them dearly as my own. And I just want them to have a safe environment, loving 

environment, and to be able to be successful for the future.” She described the children’s 

special physical and cognitive disabilities and needs and how she addresses them, 

including the services they require, which she ensures they receive. 

¶25 The foster mother also stated she was committed to allowing the children 

continued contact with their parents. But she acknowledged her plan was to move to 

North Carolina to be with her mother. She planned to take S.R. and L.R. with her if she 

could adopt them, insisting she would still allow them continued telephonic or other 

contact with their parents any time. She stated she would not want custody of the 

children under a guardianship, explaining she wanted to be entirely responsible for them; 

she did not want to be required to return to Arizona or to be concerned about the input of 

anyone else. She explained she wanted to establish a life for herself and the children in 

North Carolina, with her own mother. 

¶26 The current case manager’s testimony also supported the juvenile court’s 

findings. He testified termination was in the children’s best interests because they needed 

permanency, which a guardianship could not provide. Similarly, psychologist Al 

Silberman testified he had conducted a bonding assessment or “best interest” evaluation

of S.R. and L.R. He concluded L.R. was more bonded to her foster mother than her 

biological parents. He testified it would be in L.R.’s best interest to remain with the 

foster mother. He explained L.R. was developmentally delayed as a result of neglect, 

which included having been left in a swing for extended periods of time, and would need 
13

“a lot of physical therapy . . . [and] a lot of consistency in her life.” He believed 

severance of the parents’ rights and adoption of L.R. by her foster mother was in her best 

interest if she “is to have a chance to survive in this world with low functioning and some 

physical limitations.” 

¶27 Silberman testified further that he did not believe continued contact 

between L.R. and her biological parents was “necessary for her mental and emotional 

[well] being,” explaining that L.R.’s family consisted of the family created by her foster 

mother and the foster mother’s sister, who also was involved with the children. 

Silberman stated the prospect of the foster mother’s relocation to another state with the 

children did not change his opinion about their best interests because the home with the 

foster mother “is so much more of a stable place than what she’s going to get from this 

family who doesn’t really deal effectively with their children, has many problems, many 

problem children.” 

¶28 Silberman’s opinion was essentially the same with respect to S.R. as it was 

for L.R. He believed she, too, should remain in the care of her foster mother, noting her 

developmental delays and other difficulties, including emotional challenges because of 

having been molested. He added that her behavior had improved significantly because of 

the structured environment provided by the foster mother. And, he opined, if S.R. were 

to have no contact with her biological parents, it would not cause her “significant harm” 

or be a “major detriment.” 

¶29 Although Silberman believed it would be best if S.R. could have regular 

contact with her biological parents, he nevertheless concluded the best option was 
14

adoption of the children by the foster mother, even if she did leave the state. He felt it 

would be detrimental to both children if they were to be removed from the foster 

mother’s care. When asked whether he thought family reunification was a “viable 

option” for S.R. and L.R., he said, “No.” 

¶30 The juvenile court’s order reflects it carefully considered the complex 

issues involved in determining the children’s best interests. It made specific factual 

findings in this regard, noting the competing interests. The court acknowledged the bond 

that existed between the children and their parents, but weighed that against the bond 

between them and the foster mother. The court also noted the difficulty posed by the 

foster mother’s plan to relocate. Ultimately, however, the court weighed the evidence 

and, exercising its discretion soundly, determined the children’s best interests would be 

served by terminating the rights of their parents so they could be adopted by the foster 

mother. 

¶31 The juvenile court, not this court, is “in the best position to weigh the 

evidence, judge the credibility of the parties, observe the parties, and make appropriate 

factual findings.” In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 

455, 458 (App. 1987). Consequently, we will not reweigh the evidence or substitute our 

judgment for that of the juvenile court. Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205. 

Bennigno is essentially asking us to reweigh the evidence that was before the juvenile 

court and urges us to reach a different conclusion about the children’s best interests. We 

have no basis for doing so. Rather, we find there was more than reasonable evidence to 

support the court’s findings and therefore adopt its ruling. See id. ¶ 16. 
15

¶32 For the reasons stated herein, we affirm the juvenile court’s order 

terminating Bennigno’s parental rights to S.R. and L.R.

/s/ Virginia C. Kelly 

VIRGINIA C. KELLY, Presiding Judge

CONCURRING:

/s/ Peter J. Eckerstrom 

PETER J. ECKERSTROM, Judge

/s/ Philip G. Espinosa 

PHILIP G. ESPINOSA, Judge