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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIANNA R., JORDAN M., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, P.M., K.M., Appellees.

No. 1 CA-JV 19-0401

Appeal from the Superior Court in Maricopa County

No. JD34832

 JS19559

 JS19923

The Honorable Karen A. Mullins, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant Brianna R.

Czop Law Firm, PLLC, Higley

By Steven Czop

Counsel for Appellant Jordan M.

Arizona Attorney General’s Office, Phoenix

By Doriane F. Neaverth

Counsel for Appellee Department of Child Safety

FILED 9-22-2020
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 Brianna R. (“Mother”) and Jordan M. (“Father”) appeal the 

superior court’s order terminating their parental relationships to their 

children, K.M. and P.M. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father (collectively, “Parents”) are the biological 

parents of K.M., born June 2017, and P.M., born October 2018.

¶3 In the late evening of August 24, 2017, Mother and Father 

brought K.M., then two months old, to Banner Hospital. Parents told the 

hospital staff that K.M. had been crying, then suddenly stopped making 

noise, became limp, and had abnormal breathing. Parents told doctors that 

other than some reflux issues, K.M. had been an otherwise healthy and 

happy baby. Parents denied that K.M. had any prior hospitalizations or 

neurological problems, and they denied he had been involved in any 

accidental injury, such as a fall or car accident. Doctors told Parents to try 

feeding K.M., but he projectile vomited after drinking only about an ounce 

of formula.

¶4 Concerned K.M. had sepsis or another infection, doctors gave 

K.M. IV fluids and antibiotics. K.M. underwent blood tests, which revealed

he had elevated white blood cell, platelet, and lactic acid levels. X-rays also 

indicated that K.M. had “hyperinflated lungs and peribronchial thickening 

suggesting bronchiolitis or reactive airway disease.” K.M. did not have a 

fever. Doctors transferred K.M. to Phoenix Children’s Hospital (“PCH”) 

early on the following morning for a lumbar puncture and further testing.

¶5 Additional lab work was completed on K.M., which ruled out 

any blood disorder. The lab work also indicated that K.M.’s platelet and 

blood cell counts had returned to normal levels. A CT scan and an MRI 

were conducted on K.M.’s brain, which showed K.M. had a subdural

hematoma, as well as subarachnoid and retinal hemorrhages. At this point, 

doctors became concerned K.M. had possibly been abused, and he was 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

3

transferred to an intensive care unit. A nurse practitioner with the child 

protection team at PCH, Cynthia Nelson, examined K.M. Nelson found 

that K.M.’s injuries were consistent with abusive head trauma, better 

known as “shaken baby syndrome,” and suspected child physical abuse. 

Parents told Nelson that K.M. had reflux issues since birth, and he had been 

spitting up his formula often and was fussy. However, Parents were 

recently given a prescription for a new formula, and since changing 

formulas, K.M. was “mostly happy.” Parents did not indicate any other 

concerns regarding K.M.’s health prior to his hospitalization.

¶6 Nelson asked Parents to explain the events that led up to 

K.M.’s hospitalization. Parents told Nelson that on the day of K.M.’s 

hospitalization, he had been slightly fussier than usual. Around 8:30 p.m., 

Father was home alone with K.M. while Mother was driving a friend home. 

Father explained that K.M. woke up and was crying, so Father took him to 

the living room to change him. Father said K.M. was still crying, so he

placed K.M. on the couch and went into the kitchen to prepare a bottle. 

While in the kitchen, Father heard K.M. stopped crying. Father went back 

into the living room, and he stated K.M. looked like he was asleep.

However, when Father picked K.M. up, he was limp. Father tried patting 

K.M’s butt, lifting his arm, and pinching his leg, but K.M. did not respond 

or react. Father called Mother, who told him she was on her way home, 

between five to ten minutes away. By the time Mother came home, K.M.

had started to wake and open his eyes. However, K.M.’s pupils were large, 

and he seemed pale, “dazed,” and was not acting normal. Soon after, 

Parents drove K.M. to the hospital.

¶7 A pediatric ophthalmologist, Dr. Cassidy, was brought in to 

consult on K.M.’s retinal hemorrhages. Dr. Cassidy found that K.M. had 

optical nerve damage and hundreds of hemorrhages in both eyes across all 

three retinas and in all geographic areas of the eyes, which was consistent 

with abusive head trauma. Dr. Cassidy also noted his concern that blood 

was blocking the central view in the left eye, which could affect K.M.’s

vision as he grew older. Neurology was also asked to assess and consult 

on K.M. Dr. Teaford, of Neurology, identified that K.M. was experiencing 

seizures, and so K.M. was subjected to twenty-four-hour EEG monitoring 

and was placed on anti-seizure medications. Despite this, doctors 

identified that K.M. was awake, alert, and did not appear to be in distress.

¶8 A couple of days after K.M. arrived at PCH, the test results for 

K.M.’s lumbar puncture came back. The lumbar puncture of K.M. tested 

negative for bacterial infections, although K.M. did test positive for 

enterovirus, a common viral infection in children that could be 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

4

asymptomatic. However, the positive enterovirus test could also be 

indicative of a more serious illness, such as meningitis or encephalitis. To 

determine if K.M.’s retinal and subdural hemorrhages were correlated to a 

possible virus, such as meningitis or encephalitis, PCH requested a 

pediatric infectious disease specialist, Dr. Nania, to conduct an evaluation. 

During the lumbar puncture, the needle could have struck a blood vessel, 

causing blood to mix into the spinal fluid and alter the results. Therefore, 

Dr. Nania could not say if the positive test for enterovirus was indicative of 

meningitis or encephalitis. However, K.M. was not presenting as an ill 

child, he did not have a fever, and his vitals were normal. Dr. Nania opined 

that the enterovirus did not cause the subdural, subarachnoid, and retinal 

hemorrhages in K.M., and instead, these injuries were more concerning for 

trauma.

¶9 PCH notified the Office of Child Welfare (“OCW”) and the 

Department of Child Safety (“DCS”) that K.M. had potentially been abused. 

OCW investigator Brian Moore, as well as law enforcement, conducted a 

joint investigation. Parents were interviewed and denied causing the 

injuries to K.M., and neither believed the other parent to be responsible for 

the injuries. Parents admitted they were the sole caretakers for K.M., and 

K.M. had never been alone with anyone else without Mother or Father 

present. Parents told OCW and law enforcement the same version of events 

that took place on the day of K.M.’s hospitalization that they told nurse 

Nelson. However, Parents added that K.M. had been “inconsolable” in the 

days leading up to his hospitalization, he was not sleeping or eating, and 

he had been projectile vomiting. Mother told Moore that she believed his 

recent immunizations or genetic issues caused K.M.’s injuries.

¶10 K.M. spent about ten days in the hospital. DCS served Parents

with a temporary custody notice, and Parents were unable to take K.M. 

home. Instead, K.M. was released from the hospital into the custody of the 

maternal grandmother. Shortly after, DCS filed a dependency petition, 

alleging Mother and Father were unable to parent K.M. due to physical 

abuse or failure to protect K.M. from physical abuse.

¶11 Parents were referred for case aide services and parent aide 

services and offered supervised visitations. DCS recommended that 

Parents enroll in individual counseling sessions and undergo psychiatric 

evaluations, as well. Mother and Father were referred for psychological 

evaluations, which took place in November 2017 with Dr. Thal. Parents 

denied abusing K.M. during both of their evaluations. However, Dr. Thal 

opined that Parents should engage in counseling, and any attempts at 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

5

reunification should be made with “great caution,” given the circumstances 

of K.M.’s dependency.

¶12 Although Parents were engaged in services, Parents 

continued to deny any involvement in K.M.’s injuries. Due to Parents’

refusal to acknowledge the abuse, DCS sought to terminate the parental 

relationship in April 2018. DCS alleged that neither parent was capable of 

protecting K.M. from abuse, Parents lacked insight into the severity of 

K.M.’s injuries, and Parents were unwilling to accept the judgment of 

medical professionals, which demonstrated their lack of concern for K.M.’s 

safety.

¶13 A contested dependency hearing was held over eight days in

September 2018 through December 2018. During the hearing, there was 

testimony from OCW investigator Moore, the DCS case manager, maternal 

grandmother, Mother’s counselor, the parent aide, psychologist Dr. Thal, 

nurse Nelson, pediatric ophthalmologist Dr. Cassidy, pediatric infectious 

disease physician Dr. Nania, defense expert Dr. Matshes, and Parents. 

Following the conclusion of the dependency hearing, the superior court 

found K.M. dependent as to Mother and Father.

¶14 During the dependency adjudication and in October 2018, 

Mother gave birth to Parents’ second child, P.M. After his birth, P.M. was 

taken from the hospital and into the temporary physical custody of DCS. 

Maternal grandmother was unable to serve as placement for two young 

children, so P.M. was placed with another relative. DCS filed a dependency 

petition, alleging P.M. was dependent to Mother and Father due to the 

alleged abuse of K.M., which created an imminent risk of harm to P.M. DCS 

subsequently moved to terminate Mother and Father’s parental 

relationship to P.M. in February 2019.

¶15 The dependency adjudication as to P.M. and the termination 

hearing for both P.M. and K.M. were consolidated and held over eight days 

from May 2019 through September 2019. During the trial, testimony was 

again heard from Dr. Thal, Dr. Cassidy, maternal grandmother, the former 

DCS case manager, and Parents. In addition, there was testimony from 

paternal grandmother, injury biomechanics engineer Dr. Bertocci, defense 

expert Dr. Loyd, pediatric ophthalmologist Dr. Plotnik, and the current 

DCS case manager. After the State rested, Mother’s attorney made an oral 

motion for judgment as a matter of law, arguing the State failed to raise any 

evidence as to the best interests of the children. The superior court denied 

the motion.
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

6

¶16 Following the trial, the superior court found P.M. dependent 

as to Mother and Father, and the court terminated Parents’ parental 

relationships to K.M. and P.M. Mother and Father timely appealed. We 

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections

8-235, 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶17 Although the right to custody of one’s children is 

fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 

Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parental relationship, the 

superior court must make a two-part inquiry. Alma S. v. Dep’t of Child Safety, 

245 Ariz. 146, 149-50, ¶ 8 (2018). First, the court must find by clear and 

convincing evidence at least one of the grounds for termination in A.R.S.

§ 8-533(B). Id. Second, the court must find by a preponderance of the 

evidence that severance is in the child’s best interests. Id.

¶18 “The juvenile court, as the trier of fact in a termination 

proceeding, is in the best position to weigh the evidence, observe the 

parties, judge the credibility of witnesses, and make appropriate findings.” 

Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). 

Accordingly, this court does not reweigh the evidence, and will look only 

to determine if there is reasonable evidence to sustain the court’s ruling. 

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

accept the court’s factual findings if reasonable evidence supports them and 

will affirm its severance ruling unless it is clearly erroneous. Demetrius L. 

v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).

I. Statutory Ground of Willful Abuse or Failure to Protect from Willful 

Abuse

¶19 The superior court terminated Mother and Father’s parental 

rights pursuant to A.R.S. § 8-533(B)(2), finding each “parent has neglected 

or wilfully abused a child. This abuse includes serious physical or 

emotional injury or situations in which the parent knew or reasonably 

should have known that a person was abusing or neglecting a child.” 

Abuse is further defined as

the infliction or allowing of physical injury, impairment of 

bodily function or disfigurement or the infliction of or 

allowing another person to cause serious emotional damage 

as evidenced by severe anxiety, depression, withdrawal or 

untoward aggressive behavior and which emotional damage 

is diagnosed by a medical doctor or psychologist and is 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

7

caused by the acts or omissions of an individual who has the 

care, custody and control of a child.

A.R.S. § 8-201(2).

A. Abuse of K.M.

¶20 Mother argues that DCS failed to prove by clear and 

convincing evidence that Mother abused K.M. or was unable to protect 

K.M. from abuse, and she argues that the medical findings do not 

“conclusively demonstrate” that K.M. was abused. However, as Mother 

recognizes in her brief, clear and convincing evidence does not require 

“conclusive” evidence, but instead evidence that is “highly probable or 

reasonably certain.” See Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25

(2005) (internal quotation omitted). On appeal, this court does not reweigh 

the evidence, and we find there is reasonable and sufficient evidence to 

sustain the superior court’s ruling that either Mother abused K.M. or failed 

to protect K.M. from abuse. See Jesus M., 203 Ariz. at 280, ¶ 4; Mary Lou C.,

207 Ariz. at 47, ¶ 8.

¶21 Ophthalmologist Dr. Cassidy found hundreds of 

hemorrhages throughout the retinas in both of K.M.’s eyes. The 

hemorrhaging was extensive and present in all geographic areas of the eyes, 

and throughout all three layers of the retina: underneath, within, and in 

front of the retina. Dr. Cassidy testified that there are specific ways to 

distinguish retinal hemorrhages depending on the cause of the injury, and 

he opined that the particular type and pattern of hemorrhaging found in 

K.M.’s eyes was consistent with abusive head trauma. Dr. Cassidy further

testified that the particular hemorrhaging in K.M.’s eyes could have only 

been found in four circumstances: (1) a crushing force to the head; (2) a 

significant single acceleration/deceleration injury, such as a fall from forty 

to seventy feet or a high-speed car accident that resulted in impact; (3) a 

repetitive acceleration/deceleration injury, such as a vigorous shaking; or 

in very rare cases (4) a rare blood disorder, such as end-stage leukemia or 

sepsis that has progressed to the point where the child’s organs are shutting 

down. Parents denied K.M. was involved in an accident, a car crash, or fall,

and blood tests ruled out the possibility that K.M. suffered from any blood 

disorders, leaving the most likely possibility for K.M.’s injuries to be from 

vigorous shaking.

¶22 When K.M. first arrived at Banner Hospital, K.M.’s white 

blood cell, platelet, and lactic acid counts were elevated. Within several 

hours, however, K.M.’s levels were normal. Infectious disease physician 
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Decision of the Court

8

Dr. Nania testified that because K.M.’s blood cell and platelet count 

dropped and normalized so quickly, the elevated levels are likely an 

indication of physiologic stress or trauma, as opposed to an infection. 

Although K.M. was given a dose of antibiotics, Dr. Nania testified that it 

would be unlikely that the antibiotics would have resolved an infection so 

quickly.

¶23 K.M. tested positive for enterovirus, although Dr. Nania

testified that this is a common virus in children that includes over seventy 

distinct viruses that can be asymptomatic, as mild as a common cold, or it 

can be a more serious illness like meningitis or encephalitis. Given the 

tainted lumbar puncture at the time the spinal fluid sample was extracted, 

Dr. Nania was unable to rule out definitively any viral infections. However, 

Dr. Nania testified that it was unlikely K.M. would have been suffering 

from meningitis or encephalitis, because K.M. did not have any symptoms

of these illnesses, particularly the universal symptom of a fever. Dr. Nania

also testified that given the extent of K.M.’s hemorrhaging and hematomas, 

his injuries were not consistent with meningitis or encephalitis. Likewise, 

Dr. Cassidy testified that it is uncommon to see hemorrhaging in cases of 

meningitis, and in the rare occasions that hemorrhaging is present, it 

consists of only ten to twenty hemorrhages and is not the same pattern as 

found in K.M.’s eyes.

¶24 Pathologist Dr. Matshes testified on behalf of Mother and 

Father as their medical expert. Dr. Matshes did not observe K.M. personally 

and did not examine him, and he based his opinion on K.M.’s medical 

records. Dr. Matshes opined that K.M. was not the victim of child abuse, 

and instead, “it is more likely that he had a relatively uncommon disease 

(viral meningitis, encephalitis or meningoencephalitis) which presented in 

a rare way.” Dr. Matshes was unable to identify the specific disease he 

believed K.M. suffered from, he did not identify any specific symptoms that 

K.M. presented with that would be consistent with such a disease, and he 

provided no testimony that the type of retinal hemorrhaging found in 

K.M.’s eyes would be consistent with such a disease. K.M. did not have a 

fever, and none of the examination notes from the doctors indicate that 

K.M. was presenting as a seriously ill child. Dr. Nania testified that when 

he examined K.M., he appeared healthy, and there was no indication that 

he was suffering from sepsis or a serious infection. Similarly, Dr. Cassidy 

testified that if K.M. had sepsis, he would have been “deathly ill,” although 

K.M. did not appear ill during Dr. Cassidy’s examination.

¶25 Dr. Matshes was also unable to rule out that K.M. suffered 

from abusive head trauma, and he testified that the pattern of hemorrhages 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

9

found in K.M.’s eyes usually indicate abuse has occurred. Dr. Matshes 

conceded that it would be rare for a child to suffer from the type of retinal 

hemorrhaging K.M. sustained if he was severely ill, but it would not be rare 

to see this type of hemorrhaging in a child with abusive head trauma. In 

his expert report, Dr. Matshes states that “the dominant clinical child abuse 

pediatrics view is that certain types of retinal hemorrhages are highly 

suggestive—if not diagnostic—of Abusive Head Trauma.” Dr. Matshes

stated further that the incidence of retinal hemorrhages in abusive head 

trauma is about 85 percent, but he “assign[s] no significance to the retinal 

hemorrhages documented in this case.” The superior court found this to 

have “seriously erode[d]” Dr. Matshes’ credibility.

¶26 Parents have attempted to undermine Dr. Cassidy’s findings 

with that of another ophthalmologist, Dr. Plotnik. Although Dr. Cassidy 

testified that K.M. had permanent nerve damage, and as of a December 2018 

examination, there was still some staining or scarring in K.M.’s left macula, 

Dr. Plotnik did not observe any abnormalities with K.M.’s eyes in April 

2019. However, Dr. Plotnik testified that while maternal grandmother told 

him K.M. had retinal hemorrhages at the age of two months from an 

unknown cause, he was not told that the hemorrhages were in the 

hundreds. Dr. Plotnik testified that he was also unaware that K.M. had 

nerve damage. Dr. Plotnik observed K.M. for only about five minutes, and 

had he been aware of K.M.’s medical history, he would have altered his 

examination to look more in-depth for the scarring and nerve damage 

observed by Dr. Cassidy. Dr. Plotnik testified that he did not question or 

doubt Dr. Cassidy’s previous findings, and his quick examination had not 

uncovered any issues that were “grossly visible.”

¶27 Parents have also attempted to cast doubt that they shook 

K.M. because PCH records do not indicate that there was any bruising, 

fractures, or other external injuries on K.M. Biomechanical injury engineer 

Dr. Loyd testified as Parents’ expert witness. Dr. Loyd testified that if 

Mother and Father had shaken K.M., there necessarily would have been

external injuries on K.M., such as bruising, fractured ribs, or a neck injury.

However, Dr. Loyd was unable to point to any scientific studies or literature 

that supported his opinion. Dr. Loyd also testified that if an adult held an 

infant under his armpits and shook him, the infant’s arms would rip off, 

“no doubt about it.” In its ruling, the superior court stated that it was at 

this point that the court “lost complete confidence in Dr. Loyd’s credibility.”

¶28 Dr. Bertocci, the State’s biomechanical injury engineer, 

testified that abusive head trauma can occur without evidence of external 

injuries, which was confirmed by various clinical studies. Dr. Cassidy 
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

10

corroborated this testimony, and he testified that in his personal experience 

of treating children, about twenty percent of children with abusive head 

trauma had no external injuries. Dr. Bertocci also testified, and Dr. Loyd 

agreed, that an individual can have bruising that is not visible to the human 

eye, or the bruising may take several days to appear. Dr. Bertocci also 

testified that imaging techniques, like MRIs, do not necessarily detect neck 

injuries. There was also evidence at trial that PCH never completed an MRI

of K.M.’s neck, so it was unknown if he had suffered from any neck injuries.

¶29 Finally, the superior court found both Mother and Father 

lacked credibility and concluded that at the trial “Mother and Father 

exaggerated or outright fabricated material aspects” of the events the day 

K.M. was hospitalized. At trial, Mother testified that the day K.M. was 

hospitalized, K.M. was inconsolable and would not calm down. She stated 

that K.M. would only sleep for fifteen to twenty minutes at a time, and he 

would wake up with his face beet red, his back arched, and he cried as 

though he was in pain. Mother also testified that K.M. had been projectile 

vomiting, and he was not tracking Mother with his eyes. Neither Banner’s

nor PCH’s hospital records memorialize these facts, even though both 

hospitals took a history from Parents when they arrived. PCH records 

indicate that Parents told doctors K.M. was previously healthy. Mother told 

nurse Nelson that since changing K.M.’s formula, he was “mostly happy 

now.” Banner records state that Mother and Father denied vomiting, 

shortness of breath, fever, and chills.

¶30 Mother testified that K.M. had a two-month well-baby check 

on August 10, and K.M. was ill at the time. The medical records from this 

visit reflect that the only concern Parents had for K.M. was that he was 

spitting up formula, which the doctor diagnosed as reflux. Mother also 

testified that even though K.M. was ill, the doctor insisted Mother give K.M. 

his vaccinations. Again, the medical records do not support this testimony. 

A return visit was recommended in a week, but Parents did not return to 

the doctor’s office before the August 24 hospitalization.

¶31 Mother and Father also testified that prior to his 

hospitalization, K.M. was croupy and had a fever of about 102 degrees that 

lasted four days, beginning around August 12. However, Mother and 

Father did not bring K.M. to the doctor. Instead, Mother alleges that she 

called her doctor and told them about K.M.’s fever on several occasions, but 

there is no record of these phone calls. The doctor’s office has a record that 

Mother called to refill K.M.’s formula prescription on August 23, and the 

record does not indicate that Parents expressed any concern about K.M.’s 

health. Parents also claim that although their ten-week-old son had a fever 
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Decision of the Court

11

of about 102 degrees for four days in a row, the doctor’s office told Mother

she was overreacting and “crazy” for her concern, and it was unnecessary 

to bring K.M. into the doctor’s office. Again, there is no record in the 

doctor’s office or hospital records that support this account of events.

¶32 Although Mother and Father have continued to deny abusing 

K.M., there is reasonable evidence to suggest Parents were not credible 

witnesses or historians as to the events that led to K.M.’s hospitalization, 

and there is compelling medical evidence that K.M. suffered from abusive 

head trauma. Mother and Father testified that they were the sole caregivers 

of K.M. and that K.M. was never alone with another person without Mother 

or Father also present. The superior court did not err in finding that K.M. 

suffered from abusive head trauma.

B. Risk of Abuse to P.M.

¶33 P.M. was placed in DCS custody right after his birth, and 

there are no allegations that Mother or Father abused him. However, the 

superior court can terminate parental rights to children who exhibit no 

evidence of abuse if it finds by clear and convincing evidence that there is 

a risk of harm to those children. Sandra R. v. Dep’t of Child Safety, 248 Ariz. 

224, 228, ¶¶ 16-17 (2020).

¶34 Mother argues that because there is insufficient evidence to 

support a finding that K.M. was abused, the superior court’s finding that 

P.M. was at risk of abuse automatically fails. However, as explained above, 

there is reasonable evidence to support the superior court’s finding that 

K.M. was abused. Mother also contends that P.M. is not at risk of abuse, 

because she did not abuse K.M., and she was able to “effectively and 

appropriately” parent P.M. during visitations.

¶35 The superior court found that P.M. was “vulnerable for the 

same abuse suffered by [K.M.] given his infant status, and Mother and 

Father intend to raise [P.M] together in the joint residence, even though 

neither parent recognizes the danger to [P.M.] and the conditions in the 

home wherein [K.M.] was injured remain the same.” Further, the court 

found that “Mother and Father’s refusal to even seriously consider the 

compelling medical evidence in this case, and instead steadfastly and 

blindly stand by one another, is unreasonable and creates a significant and 

intolerable risk of harm” to K.M. and P.M. The superior court did not err 

in finding there existed a risk of harm to P.M. due to K.M.’s injuries, and 

thus the court did not err in terminating the parental relationship to P.M.
BRIANNA R., JORDAN M. v. DCS, et al.

Decision of the Court

12

II. Best Interests

¶36 Mother and Father argue the superior court erred in 

determining that termination was in K.M. and P.M.’s best interests.

Termination is in a child’s best interests if the child will benefit from 

severance, or the child will be harmed if the court denies it. Alma S., 245 

Ariz. at 150, ¶ 13. Additional factors that support a finding the child would 

benefit from severance include the availability of an adoption plan, a child’s 

adoptability, and whether an existing placement is meeting the child’s 

needs. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 

2013); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 

1994).

¶37 The superior court noted that termination would be a benefit 

for the children because “each child would continue to reside in a home that 

is safe and free from the potential for additional abuse,” and “each child 

would have permanency.” The court found it would be detrimental not to 

terminate the parental rights “as there is no reasonable likelihood that the 

parents will be able to safely parent either child, and thus the children will 

linger as wards of the court.” Additionally, at trial, there was testimony 

that the children were adoptable, the children were in kinship placements 

that provided them loving homes, and the placements were willing to 

adopt the children.

¶38 Mother argues that it is not in K.M.’s or P.M.’s best interests 

to terminate her parental relationship because she can effectively and 

appropriately parent and protect her children. Additionally, Mother argues 

that she loves her children and is bonded to them. However, the existence 

of a bond between biological family members, “although a factor to 

consider, is not dispositive in addressing best interests.” Dominique M. v. 

Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 12 (App. 2016). Regardless of her 

bond with the children, both DCS and psychologist Dr. Thal opined that it 

was not in either child’s best interests to reunify the family given the nature 

of K.M.’s injuries and Parents’ continued denial of abuse. A DCS 

caseworker testified that DCS was concerned about the risk to the children, 

stating that “if no parent has come forward and admitted to the abuse, then 

there would be a concern that the abuse could happen again.” Further, even 

if Mother was not the abuser, DCS testified that her inability to recognize 

then that Father abused K.M. prevents her from protecting the children in 

the future.

¶39 Mother also argues her completion in services demonstrates

that it is not in the children’s best interests to terminate her parental 
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Decision of the Court

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relationship. Similarly, Father argues the court erred in failing to consider 

Father’s participation in services when deciding the issue of best interests.

The superior court expressly recognized Mother and Father’s participation 

in services; however, it also recognized that “these services have not and 

cannot alleviate the risk of harm to either child.”

¶40 Dr. Thal testified that compliance with services would not 

resolve the risk of further abuse to the children absent Parents’ admission 

K.M. was abused. Dr. Thal testified that Parents’ participation in therapy 

and individual counseling services was thus-far ineffective because the 

success of these services is “built on candor” and “a patient being able to 

address a problem.” Dr. Thal also testified about the importance of Parents’

admission so services could target issues that may have led to the abuse, 

such as lack of impulse control or failure to manage anger. Further, Dr. 

Thal opined that a parent’s dishonesty as to the child’s abuse leads to a 

higher risk of reoccurrence, and harboring such a secret could be 

destructive psychologically, weighing heavily on a person’s mental state. 

The DCS caseworker testified that if a parent is unable to acknowledge the 

problem that led to dependency, it is very questionable that the parent 

would make any progress in services. See Maricopa Cnty. Juv. Action No. JS501568, 177 Ariz. 571, 577 (App. 1994) (“Leaving the window of opportunity 

for remediation open indefinitely is not necessary, nor do we think that it is 

in the child’s or the parent’s best interests.”). The superior court did not err 

in finding it was in the children’s best interests to terminate the parental 

relationship.

¶41 Finally, Mother argues that the court erred in denying her 

motion for judgment as a matter of law during the trial, in which Mother 

argued the State failed to provide any evidence on best interests. However, 

as previously explained, the State provided evidence during the trial that 

the children were adoptable and that the current placements were willing 

to adopt the children. DCS also testified about the importance of 

permanency and consistency for the children. The court did not err in 

denying the motion.

III. Mother’s Older Children

¶42 Father argues that the superior court “cannot find Father unfit 

to parent” K.M. and P.M., because he was helping Mother parent her three 

older children. Mother also argues that the superior court erred in 

terminating her parental rights to K.M. and P.M. when Mother has parented 

three other children. In addition to K.M. and P.M., Mother has ten-year-old 
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twin sons with Eric N., and she has an eight-year-old daughter with Charles 

G.

¶43 Even though Parents’ abuse of K.M. is sufficient to establish 

their current unfitness to parent K.M. and P.M., see A.R.S. § 8-533(B)(2), the 

superior court found that Parents’ testimony about Mother’s parenting of 

her three older children lacked credibility. It was unclear how much time 

Mother and Father truly spent parenting the three older children. In its 

ruling, the superior court stated Mother had “misled the court by testifying 

that she was [the daughter’s] primary caregiver.” Although both Mother 

and Father allege Mother’s daughter has transitioned to living with them 

full time, the current custody orders indicate that Mother and Charles G. 

have shared physical custody of their daughter. Maternal grandmother 

also testified that Eric N. had primary physical custody of Mother’s twin 

sons, and Mother sees her twin sons maybe every other weekend.

¶44 There was also evidence that since the twin sons’ birth, Eric 

N. has been the primary parent with physical custody, and Mother 

admitted she was “unstable” when the twins were younger. In a prior 

family law matter in 2014 regarding Mother’s twin sons, the superior court 

found Mother was only seeing her sons one time a month. At that same 

hearing, maternal grandmother testified that “Mother was not a very good 

mother for a long time” to her twin sons, although “she had gotten better.” 

Charles G. alleged that Mother was not involved in their daughter’s life for 

the first three-and-a-half years.

¶45 Additionally, DCS made it clear that its concern about 

Mother’s and Father’s fitness as parents was specific to their ability to care 

for an infant. DCS stated if the kids “were older, it’d be a different 

conversation,” but newborns in particular “cannot protect themselves” and 

“don’t know how to call for help if something is happening.” Dr. Thal 

testified that newborns are particularly vulnerable and at risk of abuse.

Although Mother still sees her older children, they are no longer vulnerable 

newborns. And although Mother alleges she has experience with infants

and was never found to have abused her three older children, there was 

ample evidence at trial that Mother did not have significant involvement 

with her three older children when they were infants. The superior court 

did not err.

IV. Second Medical Opinion

¶46 Father argues the superior court erred in terminating Father’s 

rights because DCS denied the request of maternal grandmother to get a 
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second medical opinion of K.M.’s injuries. During both the dependency 

adjudication as to K.M. and the termination adjudication for both children, 

maternal grandmother testified that DCS would not allow her to take K.M. 

to an unapproved doctor to get a second opinion or examination of K.M.’s 

eyes. The superior court addressed this issue in its ruling, stating “[n]either 

Mother nor Father ever filed a motion with the court requesting a second 

medical opinion and any issue that could be raised in this regard has been

waived.”

¶47 Although Father concedes he has waived this argument, he 

asks this court to address the issue because it is of “great public importance 

or an issue capable of repetition yet evading review.” Father asks this court 

to rule that a parent has an absolute right to get a second medical opinion 

of a child’s injuries as soon as possible after the original diagnosis. We 

decline to do so.

¶48 Pursuant to A.R.S. § 8-531(5)(c), when DCS has custody of a 

child, it has “[t]he responsibility to provide the child with adequate food, 

clothing, shelter, education and medical care . . . subject to the residual 

parental rights and responsibilities if they have not been terminated by 

judicial decree.” (emphasis added). Citing no case law, Father contends 

that included in these “residual parental rights” is the right “to get a second 

opinion of a child that DCS has removed from her care under suspicions of 

abuse.” However, “[t]he [S]tate has an interest in the welfare and health of 

children.” Cochise Cnty. Juv. Action No. 5666-J, 133 Ariz. 157, 161 (1982). As 

such, DCS has a legitimate interest in approving the medical professionals 

that treat children in its custody, ensuring the treating physicians are 

licensed professionals in good standing, providing adequate care. 

Additionally, maternal grandmother testified that DCS gave her a list of 

preapproved doctors that could treat K.M.; maternal grandmother was free 

to seek the medical opinion from that list of doctors. Indeed, K.M. was 

examined by other ophthalmologists other than Dr. Cassidy.

¶49 Father also argues parents have “a procedural right to obtain 

a second opinion for the purposes of litigation.” Generally, a party may not 

argue on appeal legal issues not raised in the superior court. McDowell 

Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5 (1997). As the superior 

court noted, Parents could have filed a motion with the court to request a 

second medical opinion, and they failed to do so. Therefore, we deem this 

argument waived and do not address it further.
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V. Foster Care Review Board’s Recommendation

¶50 Both Mother and Father argue that the court erred in not 

following the Foster Care Review Board’s July 2019 recommendation that 

the case plan be changed to reunification. While the Review Board 

Recommendations and Findings are important to dependency and 

termination cases, neither DCS nor the court is required to follow them. 

Father cites a statute that states in relevant part, the “department shall 

provide the local foster care review board with written notice . . . if the 

department intends to accept or not implement the board’s recommendations.” 

A.R.S. § 8-515.03(1) (emphasis added). We do not reweigh evidence on 

appeal, and it is not within this court’s purview to decide the weight the 

superior court is to give the Review Board’s Recommendations and 

Findings. See Jesus M., 203 Ariz. at 280, ¶ 4; Mary Lou C., 207 Ariz. at 47, 

¶ 8.

¶51 Additionally, there was testimony at trial that called into 

question the extent of the knowledge the Review Board had regarding this 

case. DCS testified the Review Board’s Recommendations and Findings

contained only a basic outline of the facts and K.M.’s injuries, which did not 

accurately capture the complexity of this case. While the Recommendation

and Findings indicate the Review Board had access to and reviewed various 

minute entries from the superior court, it does not appear the Review Board 

had reviewed the superior court’s dependency ruling or other, more 

detailed court orders. There was testimony at trial that the Review Board 

told Parents it needed more documentation from Parents because it did not 

have enough documents and records to complete its review. DCS was not 

present at the July 2019 meeting with the Review Board, and there was 

testimony that the Recommendations and Findings were based almost 

entirely on Parents’ and the grandparents’ self-reports. The superior court 

did not err.

VI. Dependency of P.M.

¶52 Finally, Mother argues that the superior court erred in finding 

P.M. dependent as to Mother. However, the order terminating Mother’s 

parental rights to P.M. renders the dependency finding moot. See Rita J. v. 

Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, 515, ¶ 10 (App. 2000) (stating that 

even if an order entered after a permanency planning hearing was 

appealable, the appeal would essentially be rendered moot due to a later 

order terminating parental rights); see also Cardoso v. Soldo, 230 Ariz. 614, 

617, ¶ 5 (App. 2012) (“[W]e will dismiss an appeal as moot when our action 

as a reviewing court will have no effect on the parties.”). Accordingly, this 
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court rejects Mother’s challenges to the dependency order, and as stated 

above, finds termination was appropriate under A.R.S. § 8-533(B)(2).

CONCLUSION

¶53 For the foregoing reasons, we affirm.