IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

BRIONNA J., Appellant,

v.

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

No. 1 CA-JV 21-0039

Appeal from the Superior Court in Maricopa County

No. JD530462

The Honorable Connie Contes, Judge Retired

VACATED AND REMANDED

COUNSEL

Law Office of Ed Johnson PLLC, Peoria

By Edward D. Johnson

Counsel for Appellant

Arizona Attorney General’s Office, Mesa

By Lauren J. Lowe

Counsel for Appellee Department of Child Safety

FILED 5-24-2022
BRIONNA J. v. DCS, A.V.

Opinion of the Court

2

OPINION

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

Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 In this severance case, we are confronted with the sometimes 

difficult distinction between a history of bad parenting and grounds that 

justify the permanent termination of a parent-child relationship by the 

government. We hold that even abundant evidence of bad parenting does 

not necessarily equate to the parental unfitness necessary to justify 

permanent termination of the parent-child relationship by the state. In this

appeal, we review an order severing Brionna J.’s (“Mother[’s]”) parental 

rights under A.R.S. § 8-533(B)(8)(c). We vacate the severance and remand 

for further proceedings. Though Mother was deeply troubled and far from 

an ideal parent, she improved in response to services and insufficient 

evidence supported the juvenile court’s conclusion that she was unfit.

FACTS AND PROCEDURAL HISTORY

¶2 Mother gave birth to A.V. in 2005.1 She was thereafter 

reported to child protective services multiple times over a period of years. 

In 2006, she was reported for testing positive for marijuana, for engaging in 

domestic violence with A.V.’s father, and for permitting A.V. to live with 

her grandmother in a different state. In 2007, she was reported for not 

visiting A.V. when the child was hospitalized for pneumonia, for abusing 

alcohol and illegal drugs, for driving A.V. while under the influence, for 

leaving drugs and drug paraphernalia in an area accessible to A.V., and for 

stabbing A.V.’s father and placing A.V. in the road to prevent him from 

leaving. In 2008, she was reported for going “clubbing” at night while 

leaving A.V. in the care of her grandmother, a user of alcohol and illegal 

drugs who spanked A.V. and often slept while A.V. moved unsupervised 

around a house containing unsecured chemicals. In 2011, she was reported 

for using marijuana in front of A.V., leaving marijuana in an area accessible 

to A.V., and not taking A.V. to the doctor when the child had a bad cough. 

1 A.V.’s father’s parental rights were severed concurrent with 

Mother’s, but he is not a party to this appeal.
BRIONNA J. v. DCS, A.V.

Opinion of the Court

3

In 2013, she was reported for “always [being] mad” and threatening to kill 

A.V. and herself.

¶3 In this appeal, we are concerned with the current petition and 

the circumstances giving rise to it. In 2016, Mother was reported to the 

Arizona Department of Child Safety for having posed as A.V. to send a 

message to the child’s grandmother stating that she (A.V.) had ingested nail 

polish remover. The Department thereafter assumed custody of A.V., and 

her best-interests attorney filed a dependency petition in November 2016. 

The petition alleged that Mother was unable or unwilling to provide 

necessary parental care and control, see A.R.S. § 8-201(15)(a)(i), because:

Mother has untreated mental health issues[,] . . . has 

physically abused the child by hitting her[,] . . . swears at the 

child and calls her derogatory names[,] . . . has a history of 

substance abuse and keeps drugs accessible to the 

child[,] . . . has a history of domestic violence and has been 

arrested and convicted multiple times[,] . . . has prior DCS 

involvement in the state of Georgia and Arizona[, and] . . . has 

neglected/and or [sic] abandoned the child by leaving her in 

the care of the Maternal Grandmother for extended periods of 

time.

¶4 Mother contested the petition. But she failed to appear at the 

March 2017 evidentiary hearing, so the court found A.V. dependent as to 

her on the strength of the petition’s allegations and the reports received by

the Department.

¶5 The Department offered Mother myriad reunification 

services. She was not required to participate in substance abuse treatment

because she produced a medical marijuana card. She was referred for 

domestic violence counseling but never participated.

¶6 She did participate in a psychological evaluation in March 

2017, which noted suspected child neglect, suspected child physical abuse, 

and suspected child psychological abuse but resulted in no mental health 

diagnoses. The psychologist recommended that Mother would benefit 

from services designed to “increas[e] her frustration tolerance and ability 

to manage daily stressors.” Mother also participated in a bonding and bestinterests assessment in May 2017. In that assessment, during which Mother 

and the grandmother argued in front of A.V., A.V. disclosed to the 

psychologist that she feared being hurt by Mother when Mother was angry. 

Concerned that Mother had trouble both controlling her temper and
BRIONNA J. v. DCS, A.V.

Opinion of the Court

4

recognizing that failing, the psychologist opined that anger management or 

dialectical behavior therapy (“DBT”) might be helpful.

¶7 The Department set up DBT for Mother in July 2017, but she 

did not begin attending that therapy until September 2017. Her counselor 

reported that Mother “made behavioral and cognitive improvements.” 

Still, in January 2018, after Mother “lashed out and became emotionally out 

of control” on two occasions, the therapy was terminated pending Mother’s 

successful completion of an anger management program. Mother was 

referred for an anger management program, but the referral was closed due 

to her “lack of cooperation and resistance to treatment.” Mother ultimately 

self-referred for DBT with a different provider in mid-2018, participated in 

the therapy, and reported completing the program later that year. She 

further provided a certificate of completion for a one-day self-referred 

anger management course in late 2018, and she reported in late 2019 that 

she had self-referred for an anger management program.

¶8 Mother did not begin participating in parenting-skill sessions 

until late 2017. She stopped participating in visits for a time in late 2017 

after her threatening behavior toward the parent aide caused the visits to 

be moved from her home to the community. In a January 2018 summary 

report, the parent aide noted that Mother “struggles with acknowledging 

how responding to [A.V.] in a loud, aggressive, belittling, impatient, 

badgering, tone places the child in a vulnerable emotional state and causes 

the child to support and care for [M]other placing [A.V.] in a[n]

inappropriate family role.” The parent aide further observed that Mother 

was “unpredictable as to . . . act[ing] out due to being trigger[ed] by 

something [A.V.], family members, or state workers say or do, whether 

founded or not,” that Mother appeared “to have no self regulation once she 

is angered,” and that Mother had indicated “she is only doing things to get 

her daughter back not because she feels there is a need to change.”

¶9 A.V. underwent a psychological evaluation in February 2018

in response to concerns that she was lying, stealing, and threatening 

suicide. The psychologist opined that “there are highly likely issues with 

anger, sadness, and fear,” and that A.V. acted out in response to her 

repressed feelings “connected to being abused and neglected.” The 

psychologist recommended that A.V. continue supervised visitation with 

Mother.

¶10 In April 2018, Mother underwent a second psychological 

evaluation that led to a rule-out personality disorder diagnosis. The 

psychologist opined that though Mother appeared to believe she could 
BRIONNA J. v. DCS, A.V.

Opinion of the Court

5

regulate her emotions, the collateral information indicated otherwise. The 

parent aide’s progress reports from March to July 2018, however, reflected 

that Mother had actively worked on and gained impulse control and selfawareness. And in August 2018, she was successfully discharged from 

parent aide services.

¶11 At supervised visits in late 2018, Mother argued with A.V. on 

several occasions. And on one occasion, when her location request was 

denied, Mother refused the visit and began clapping and dancing around 

the case aide as A.V. watched. At one visit, the case aide reported that 

Mother spoke “sarcastically” toward A.V., repeatedly touched A.V.’s hair 

over A.V.’s objection, recorded A.V. over A.V.’s objection, grabbed A.V.’s 

chin while addressing her “sarcastically,” and twice threatened to end the 

visit early. At another visit, after A.V. failed to comply with Mother’s 

direction to do homework, Mother yelled at A.V., raised the issue of the

dependency case’s origin, and hugged A.V. after she requested not to be 

touched. At other visits, Mother “sarcastically mocked” A.V. for not 

wanting inexpensive makeup and argued with A.V. about who was 

supposed to pay a school expense.

¶12 During visits in December 2018 and January 2019, Mother 

informed A.V. that she would no longer participate in visits based on her 

dissatisfaction with the court proceedings and A.V.’s contact with her 

father. Consistent with those statements, Mother stopped participating in 

visits after the court returned A.V. to her father’s physical custody in 

January 2019. She resumed visits only after A.V. was placed back in the 

Department’s physical custody in May 2019 based on reports of physical 

abuse and neglect by the father.

¶13 Around the same time, Mother, who took the position that she 

had completed all necessary services, participated in a Team Decision 

Meeting with A.V. Mother’s disruptive behavior at that meeting led A.V. 

to yell at her twice, and ultimately Mother was asked to leave early. The 

case supervisor reported that this was not the only meeting Mother 

disrupted, though she did not specify whether A.V. was present on those 

other occasions.

¶14 Mother’s resumed visits with A.V. typically went well

throughout the remainder of 2019. On one occasion, however, Mother 

criticized A.V.—who is biracial—for selecting “white kids’ shoes.” 

According to the case supervisor, there were “ongoing issues with [A.V.] 

being torn between races when it comes to her visits with [Mother].” At the 

next visit, Mother immediately began cursing at the case aide for having 
BRIONNA J. v. DCS, A.V.

Opinion of the Court

6

reported her remark, to the point where the case aide removed A.V. and 

canceled the visit. Mother thereafter refused to participate in visits for a 

month.

¶15 The Department moved in January 2020 to sever Mother’s 

parental rights under A.R.S. § 8-533(B)(8)(c) , and the matter ultimately was 

set for trial in November 2020.

¶16 Meanwhile, in March 2020, Mother underwent another 

psychological evaluation. She was again diagnosed with a personality 

disorder, as well as rule-out posttraumatic stress disorder, suspected child 

neglect, and suspected child psychological abuse. The psychologist opined 

that Mother’s prognosis to safely parent was poor due to her inability to 

control consistently her emotions and behavior despite having completed 

services.

¶17 In mid-2020, Mother cited unexpected travel to cancel 

approximately half a month’s visits following a pair of negative visits. 

During the first of those visits, A.V. told Mother that she no longer wanted 

to be Black, and Mother responded that A.V. would no longer be her child 

by the next month anyhow. During the second visit, Mother left early after 

arguing with A.V. about nail polish. In September 2020, the Department 

reported that “visits remain concerning due to behaviors between both 

[M]other and [A.V.] They continue to make hurtful statements to each 

other.” The Department further reported that A.V. had requested that visits 

occur only in the community with her grandmother present.

¶18 Mother began individual counseling in June 2020 but refused 

to continue after October, when the sessions were switched from a virtual 

to an in-person format. Mother’s visits with A.V. stopped entirely a few 

weeks before the November 2020 severance trial, at A.V.’s request, because 

A.V. wished to stop fighting with Mother. The case supervisor reported 

that Mother would insist on discussing her religious beliefs at visits despite 

A.V.’s wish not to talk about that topic.

¶19 The case supervisor testified at the severance trial that A.V. 

could not safely be returned to Mother’s care because of “Mother’s 

behavior, her refusal to make any changes, the ongoing conflict between 

her and [A.V.], her ongoing conflict with service providers, [and] her 

inability to change her anger.” She explained, “It all leads back to her not 

being willing to identify that she has an anger issue and be successful in 

trying to make those changes.” The supervisor testified that A.V. was in an 

adoptive placement capable of meeting her needs, was adoptable, and had 
BRIONNA J. v. DCS, A.V.

Opinion of the Court

7

finally come to support severance and adoption. The supervisor opined 

that severance would serve A.V.’s best interests by providing her 

permanency and she would suffer emotionally if severance were denied.

¶20 Mother testified that she was willing to continue individual 

counseling online but did not wish to attend in-person because of the 

COVID-19 pandemic. She acknowledged that she had failed to control her

temper in the past, had hurt A.V. by her actions, and had used

unnecessarily cruel words. She also acknowledged that she had not been 

fully cooperative in the case. She stated, however, that she was “not as [she] 

was before” regarding her temper and that her actions did not warrant 

severance. She testified that she could care for A.V. and that she believed 

it was not uncommon for a mother and teenage daughter to have 

disagreements.

¶21 In February 2021, the superior court granted the 

Department’s severance motion. The court found that severance was 

warranted under § 8-533(B)(8)(c) because:

At the onset of the dependency action, Mother was 

very resistant to services and participated minimally. Mother 

self-referred for DBT counseling through the VA but 

continued to demonstrate aggressive, hostile behaviors 

towards providers and, at times, her daughter. When the 

child was reunifying with her Father, Mother refused to visit 

with [A.V.] Following the removal of [A.V.] from Father in 

April 2019, Mother was invited to a team decision making 

meeting to discuss prospective kinship placement with the 

maternal relatives. However, Mother was disruptive 

throughout the meeting and asked to leave.

Mother has continued to display volatile and 

disruptive behaviors with providers throughout the 

dependency. Mother’s mental health condition and 

diagnoses have persisted for more than four years, which is 

considered long term. Mother is not amenable to therapy to 

make necessary behavioral changes. Currently, Mother and 

daughter are not having visitation so that Mother and 

daughter stop fighting. Mother has demonstrated she is 

unable and/or unwilling to appropriately regulate her 

emotions and safely and effectively parent her daughter.

The court further found that severance was in A.V.’s best interests.
BRIONNA J. v. DCS, A.V.

Opinion of the Court

8

¶22 Mother appeals.

DISCUSSION

¶23 Mother contends that the Department failed to present 

sufficient evidence to support termination of her parental rights. Parental 

rights must not be terminated absent proof by clear and convincing 

evidence that severance is warranted under A.R.S. § 8-533(B), and proof by 

a preponderance of the evidence that severance is in the child’s best 

interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J. v. 

Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We address only the 

statutory element today.

¶24 We are not permitted to weigh the evidence. Alma S. v. Dep’t 

of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018). Even if the facts are sharply 

disputed, we must accept the juvenile court’s findings if supported by 

reasonable evidence and inferences. Id. But we must not affirm a clearly 

erroneous severance order. Id. “[T]he right of parents to the care and 

custody of their child is a fundamental right” that “does not evaporate 

simply because they have not been model parents or have lost temporary 

custody of their child to the state.” In re Maricopa Cnty. Juv. Action No. JS6831, 155 Ariz. 556, 558 (App. 1988) (citation omitted). Accordingly, 

notwithstanding our deferential standard of review, we must remain 

mindful that severance, which “is a permanent deprivation, not only o[f] 

the right to custody but to all contact,” id. at 559, is “a power of awesome 

magnitude that must be exercised with great rectitude and always 

cognizant of the fundamental rights at stake,” Alma S., 245 Ariz. at 153, ¶ 26 

(Bolick, J., concurring in result). “[W]e should take great care to ensure that 

our termination of parental rights process has not become a railroad with 

no stops and only one destination, in which judges act as mere conductors.” 

Id. at ¶ 28 (Bolick, J., concurring in result).

¶25 The Department requested, and the court granted, severance

under § 8-533(B)(8)(c). Accordingly, severance required clear and 

convincing evidence that A.V. had been in out-of-home placement for a 

cumulative total period of at least 15 months, the Department had made a 

diligent effort to provide appropriate reunification services, Mother had 

been unable to remedy the circumstances that caused A.V. to be in an outof-home placement, and there was a substantial likelihood that Mother 

would not be capable of exercising proper and effective parental care and 

control in the near future. A.R.S. § 8-533(B)(8)(c); Michael J., 196 Ariz. at 249, 

¶ 12.
BRIONNA J. v. DCS, A.V.

Opinion of the Court

9

¶26 Section 8-533(B)(8)(c) serves as a proxy for parental unfitness, 

Alma S., 245 Ariz. at 150, ¶ 10, that creates harm or risk of harm to the child, 

Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 229, ¶ 24 (2020). The 

circumstances that cause the child to be in an out-of-home placement are 

those “‘existing at the time of the severance’ that prevent a parent from being 

able to appropriately provide for his or her children.” Marina P. v. Ariz. 

Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (emphasis added) 

(citation omitted). Children’s rights include “the right to good physical 

care, adequate food, shelter and clothing, the right to emotional security, 

[and] the right to be free from injury and neglect.” Hernandez v. State, 23 

Ariz. App. 32, 35 (1975). But whether a parent can appropriately provide 

for his or her children, and whether the parent will be capable of exercising 

proper and effective parental care and control, are necessarily elastic 

inquiries. Cf. In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 

579 (App. 1994) (recognizing, for purposes of severance based on parental 

abandonment, “[t]erms such as ‘reasonable support’ and ‘normal parental 

relationship’ are of necessity imprecise and . . . the concept of abandonment 

is somewhat elastic” (citation and internal quotation marks omitted)). We 

must also consider that children have “the right to be with [their] natural 

parents.” Hernandez, 23 Ariz. App. at 35.

¶27 Mother concedes that A.V. was in out-of-home placement for 

more than 15 months and that the Department made a diligent effort to

provide appropriate reunification services. She challenges the sufficiency 

of the evidence to support the juvenile court’s determinations that she was 

unable to remedy the circumstances that led AV. to be in out-of-home 

placement and that she would not be capable of exercising proper and 

effective parental care and control in the near future.

¶28 To be sure, reasonable evidence supports the juvenile court’s 

findings that Mother was initially resistant to and minimally participated 

in services, that she was aggressive and hostile toward providers and 

sometimes A.V., that she withheld visits, that she disrupted a team decision 

making meeting, that she and A.V. were not currently having visits due to 

fighting, and that she had persistent mental health diagnoses and was not 

amenable to therapy. We cannot agree, however, that the facts warranted 

the conclusion that Mother was unable to “safely and effectively parent her 

daughter.” The evidence showed that Mother suffers from a long-term 

personality disorder and often fails to control her temper and act maturely, 

including when she interacts with or in the presence of A.V. The evidence 

showed that on multiple occasions, Mother treated A.V. with disrespect, 

told her hurtful and inappropriate things, spitefully withheld visits, and 

interacted belligerently with others, sometimes in A.V.’s presence. She was 
BRIONNA J. v. DCS, A.V.

Opinion of the Court

10

far from a model parent. But she was successfully discharged from parentaide services, and though her continuing conduct was concerning and may 

have established that she was an unkind and volatile parent, the evidence 

did not establish that she was unfit. Though the state cites the Department’s 

characterization of Mother’s conduct during visits as “explosive,” our 

review of the records detailing those visits belies that description. On this 

record, even accepting all of the juvenile court’s findings of fact, we must 

hold that the state failed to meet its burden to justify severance under § 8-

533(B)(8)(c) and that the juvenile court clearly erred.

¶29 Were this a family court case involving a dispute between 

parents, we likely would affirm orders restricting Mother’s access to the 

child based on her conduct—but, absent additional evidence, we would not 

suggest that the matter be referred for severance. Severance is not a 

general-application tool that allows the state to regulate bad parenting. See 

JS-6831, 155 Ariz. at 558. The draconian consequences of severance (for 

both parent and child) are appropriate under § 8-533(B)(8)(c) only when the 

child must be protected from a parent who is incapable of exercising proper 

and effective care and control. See Alma S., 245 Ariz. at 153, ¶¶ 26, 28 

(Bolick, J., concurring in result). Here, we cannot agree that the statutory 

ground was proved by clear and convincing evidence. The evidence 

established that Mother was mentally ill, volatile, and unkind, but it did not 

establish that she was unfit as a matter of law. In so holding, we do not take 

lightly the inevitable conclusion that Mother’s behavior during the 

dependency contributed to A.V.’s emotional upset and harmed their 

relationship. But we note that the Department conceded at oral argument 

on appeal that it did not allege emotional abuse by Mother, and we note 

that severance was never sought based on neglect or abuse under § 8-

533(B)(2), or on mental illness under § 8-533(B)(3). We hold that the 

severance order must be vacated.

¶30 We stop short, however, of dismissing the dependency.2 We 

recognize that the dependency was established based on a showing of 

parental unfitness under a lesser evidentiary standard than that required 

for severance. See A.R.S. §§ 8-201(15)(a)(i), -844(C)(1); In re Cochise Cnty. Juv. 

Action No. 5666-J, 133 Ariz. 157, 159 (1982). But this record does not compel 

us to conclude that the dependency was baseless ab initio. Cf. Donald W. v. 

Dep’t of Child Safety, 247 Ariz. 9, 18–19, ¶¶ 27–30 (App. 2019).

2 We note that Mother did not advocate for dismissal at oral argument 

on appeal. To the contrary, counsel stated that he “couldn’t in good faith 

say that [the dependency] should be dismissed.”
BRIONNA J. v. DCS, A.V.

Opinion of the Court

11

¶31 Ordinarily, when the record establishes that a parent is fit, the 

proper remedy is dismissal of the dependency. In Donald W., dismissal was 

required because the record would have supported no reasonable findings 

sufficient to continue a dependency. But not all cases are so clear. By 

enacting § 8-538(E), the legislature anticipated that even in cases where 

termination is not warranted, the best interests of the child might still favor 

“supplementation” of parental efforts for a time under an appropriate court 

order. We therefore remand so that the superior court may evaluate 

whether continuing government oversight serves A.V.’s best interests. See 

A.R.S. § 8-538(E) (“If the court does not order termination of the parentchild relationship, it shall dismiss the petition, provided that if the court 

finds that the best interests of the child require substitution or 

supplementation of parental care and supervision, the court shall make 

such orders as it deems necessary.”); see also Ariz. R.P. Juv. Ct. 66(F)(3) (“At 

the conclusion of the hearing the court shall . . . [d]eny the termination 

motion or petition if the moving party or petitioner did not meet its burden 

of proof, and order the parties to submit a revised case plan prior to the 

dependency review hearing.”).

CONCLUSION

¶32 We vacate the severance order and remand for further 

proceedings consistent with this decision.