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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELLESSE J.,

Appellant,

v.

DEPARTMENT OF CHILD SAFETY, O.H., J.H., A.H.,

Appellees.

No. 1 CA-JV 17-0182

Appeal from the Superior Court in Maricopa County

No. JD511152

The Honorable Karen L. O'Connor, Judge

VACATED; REMANDED

COUNSEL

Denise L. Carroll, Esq, Scottsdale

By Denise Lynn Carroll

Counsel for Appellant

Arizona Attorney General's Office, Tucson

By Cathleen E. Fuller

Counsel for Appellee DCS

FILED 12-14-2017
ELLESSE J. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

¶1 Ellesse J. ("Mother") appeals the superior court's order 

severing her parental rights to her three children. Because the superior 

court based its decision on an erroneous finding of fact, and the record does 

not clearly show that the court would have reached the same result absent 

the error, we vacate the severance order and remand for proceedings 

consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 In June 2013, one of Mother's children, then six months old, 

suffered a broken femur while in the care of the children's father ("Father").

1

Father took the baby to the hospital and reported that the child had suffered 

the injury in a fall from a swing, but a doctor suspected Father had injured 

the baby. The Department of Child Safety ("DCS") suspected that the baby's 

broken leg and several unexplained burns and unexplained marks on the

other child were caused by abuse. DCS also suspected Father abused 

Mother, who had bruises and other injuries to her face and torso; Mother 

attributed her injuries to swimming and to attacks by unknown persons 

during two home invasions.

¶3 DCS took temporary custody of the children and placed them 

with the maternal grandparents, then filed for dependency against both 

Mother and Father in July 2013; the superior court ruled the children 

dependent in January 2014.

¶4 DCS's initial plan was to reunify Mother with the children. 

Mother positively interacted with them throughout the dependency,

 

1 At the time, Mother and Father had two children, both under the age 

of two. Mother bore a third child in June 2014, and the superior court ruled 

that child dependent later that year. Father's parental rights to the children 

were severed after he failed to appear for the severance trial, and he is not 

a party to this appeal.
ELLESSE J. v. DCS, et al.

Decision of the Court

3

successfully completed parent-aide services, and was permitted to have 

unsupervised contact with her children. DCS had remaining concerns, 

however, that Mother would subject the children to abuse by continuing 

her relationship with Father; in 2015, DCS reported that Mother still was in 

phone contact with Father and occasionally gave him rides. In March 2015,

DCS moved to terminate Mother's parental rights with her two older 

children on the grounds of 15 months' time-in-care, alleging that Mother 

had failed to acknowledge Father's domestic violence and had continued 

her relationship with him.

¶5 In September 2015, DCS withdrew the motion and again 

attempted to reunify Mother with her children, but required Mother to 

participate in individual counseling to address co-dependency issues and 

develop coping skills. When DCS told Mother she needed to attend 

counseling, she initially refused but later acquiesced when pressed to do so 

during a court hearing. Mother began counseling and was receptive to 

treatment, but she missed several sessions before the beginning of 2016 and 

her counseling had to be extended. After DCS approved the extension,

Mother attended counseling sessions fairly regularly for a few months, but 

then her attendance once again became sporadic: Between May and 

September 2016, she attended only one session. Mother blamed her 

inconsistent attendance at counseling on conflicts with her work schedule.

¶6 DCS assigned Mother a family reunification team in early 

2016. When Mother did not return the team's initial calls, they went to her 

home and found that she was being evicted. After the team eventually got 

in contact with Mother, she told DCS that she intended to find new housing, 

and later she said she had placed a deposit and would move into a new 

home in June. When DCS checked on her progress, she said she had 

delayed the move to July, and later told the caseworker she had delayed the 

move again to August to accommodate a family trip.

¶7 On August 4, 2016, Mother went to meet with Father to ask 

him to sign some paperwork committing him to pay $250 per month in

child support. After she presented him with a contract she had written for 

him to sign, he became agitated. The encounter escalated, and Father 

assaulted Mother, taking her to the ground twice and punching her. 

Mother's injuries from the assault—a small abrasion and swelling to her 

forearm and a scrape to her knee—were serious enough that she missed a 

day of work.

¶8 After that, Mother informed DCS that she was no longer 

interested in living by herself and instead was moving in with a family 
ELLESSE J. v. DCS, et al.

Decision of the Court

4

member because Father had assaulted her. DCS was concerned that Mother 

had shown poor decision-making by meeting with Father. Because of that 

concern, and because Mother had failed to obtain stable housing and had 

failed to regularly attend counseling, DCS concluded the case plan should 

be changed back to severance and adoption. The court did so, and DCS

petitioned for severance on October 3, 2016.

¶9 After the filing of the petition for severance, Mother attended 

three counseling sessions in October, but attended only three of six 

counseling sessions in November and December, canceling or no-showing 

the other three. Over the course of the entire proceedings, Mother attended 

26 counseling sessions but also missed almost that many. She met only 

about half of the treatment goals; in her counselor's opinion, Mother needed 

10 to 15 more sessions to meet the remaining goals. According to the 

counselor, without further counseling, Mother is likely to continue to 

exercise poor judgment, possibly exposing the children to further domestic 

violence at the hands of Father. Because of Mother's inconsistent 

attendance, however, the counselor and Mother's caseworker agreed to put 

counseling on hold in March 2017.

¶10 During the dependency, Mother was evaluated twice by 

psychologist Dr. James Thal, who in both evaluations concluded that 

Mother's parenting could subject the children to risks of abuse. In Mother's 

first evaluation in November 2013, Thal concluded that Mother was 

impulsive and "may believe that aggressiveness is a legitimate means to an 

end." Thal's conclusions about Mother's parenting abilities, however,

largely centered around her relationship with Father. Thal reported that he 

"did not identify stress factors" in Mother's own relationships with her 

children, but concluded she could put her children at risk now and in the 

future by supporting and remaining in an abusive relationship.

¶11 In the second evaluation in February 2017, Thal noted

Mother's history of aggressive conduct and the August 2016 confrontation 

with Father, and concluded that Mother "appears to have difficulty 

moderating her aggressive impulses" and was "inclined to exercise poor 

judgment," which "combined to interfere with her ability to safeguard and 

protect her children." In Thal's opinion, Mother had not demonstrated

adequate parenting skills, so that children in her care "could be at risk for 

exposure to domestic violence." Thal's prognosis for Mother being able to 

adequately parent in the near future was "guarded," and he found it 

"reasonable to believe that the condition will continue for a prolonged, 

indeterminate period of time."
ELLESSE J. v. DCS, et al.

Decision of the Court

5

¶12 After a two-day severance hearing in March 2017, the 

superior court terminated Mother's parental rights on the ground of 15 

months' time-in-care under Arizona Revised Statutes ("A.R.S.") section 8-

533(B)(8)(c) (2017).

2 We have jurisdiction over Mother's timely appeal 

under A.R.S. §§ 8-235(A) (2017), 12–120.21(A)(1) (2017) and –2101(A)(1) 

(2017).

DISCUSSION

A. Legal Principles.

¶13 We review a severance order for abuse of discretion. Mary 

Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Before it 

may sever a parent-child relationship, the superior court must find by clear 

and convincing evidence at least one ground for severance set out in A.R.S. 

§ 8-533(B), Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), 

and by a preponderance of the evidence that severance serves the child's 

best interests, Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). "Because 

the juvenile court is in the best position to weigh evidence and assess 

witness credibility, we accept the juvenile court's findings of fact if 

reasonable evidence and inferences support them, and will affirm a 

severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F., 

239 Ariz. 1, 3, ¶ 9 (2016) (citation omitted). "A factual finding is clearly 

erroneous if no substantial evidence supports it," City of Tucson v. Clear 

Channel Outdoor, Inc., 218 Ariz. 172, 189, ¶ 58 (App. 2008), or "when 

although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been 

committed." State v. Lupe, 181 Ariz. 211, 213 (App. 1994) (quotations 

omitted). "Evidence is substantial if it allows a reasonable person to reach 

the trial court's result." Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11

(App. 2009) (quotations omitted). We therefore examine whether 

"reasonable evidence in the record supports the juvenile court's findings." 

Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 283, ¶ 16 (App. 2002).

¶14 In reviewing a parental severance, we are mindful of the 

gravity of the parent-child relationship. Control and custody of one's 

children is a fundamental right that "'does not evaporate simply because' 

the natural parents 'have not been model parents or have lost temporary 

custody of their child to the state.'" Maricopa County Juv. Action No. JS500274, 167 Ariz. 1, 4 (1990) (quoting Santosky v. Kramer, 455 U.S. 745, 753 

 

2 Absent material revision after the relevant date, we cite a statute's

current version.
ELLESSE J. v. DCS, et al.

Decision of the Court

6

(1982)). Accordingly, "termination of parental rights is not favored and . . .

generally should be considered only as a last resort." Id. (citing Maricopa 

County Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189 (App. 1984)).

B. Time-in-Care Ground for Severance.

¶15 Under the 15-month time-in-care ground for severance, 

parental rights may be terminated if (1) "[t]he child has been in an out-ofhome placement for a cumulative total period of fifteen months or longer 

pursuant to court order," (2) "the parent has been unable to remedy the 

circumstances that cause the child to be in an out-of-home placement," and 

(3) "there is a substantial likelihood that the parent will not be capable of 

exercising proper and effective parental care and control in the near future."

A.R.S. § 8-533(B)(8)(c). The circumstances at issue are "those circumstances 

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) (quotation omitted).

¶16 The superior court found that DCS had established by clear 

and convincing evidence grounds for severing Mother's parental rights, 

based on facts showing the children had been in out-of-home placement 

since 2013 and 2014; Mother had attended only one counseling session 

between May and September 2016; Mother had delayed for several months 

in obtaining housing between April and August 2016, resulting in the 

family reunification team closing out unsuccessfully; her August 2016 

confrontation with Father, in which he assaulted her; and the psychologist's

evaluations of Mother. The court concluded that despite DCS's diligent 

efforts to reunify Mother with her children for four years, Mother had failed 

to show that she is able to provide a safe home for the children.

¶17 On appeal, Mother challenges the court's findings that she 

was unable to remedy the circumstances causing the children to be taken 

into care and that she will not be capable of effectively parenting in the near 

future. According to the record, Mother frequently visited the children at 

the home of her own father ("Grandfather"), who had cared for the children 

since the beginning of the dependency. Mother stayed with the children 

there overnight and assisted Grandfather in caring for them. Mother points 

to Grandfather's testimony that she is "fully capable" of taking care of the 

children alone; testimony from her prior caseworker that he had no 

concerns about Mother's ability to parent her children directly; her

successful completion of parent-aide services and near-completion of other 

DCS-provided services; her current stable home with her brother; and her 
ELLESSE J. v. DCS, et al.

Decision of the Court

7

effort to resolve the risk of abuse that necessitated DCS's involvement in the 

first place by ceasing contact with Father.

¶18 Even assuming that this evidence supports a finding that 

Mother can effectively parent the children, it is insufficient to disturb the 

superior court's decision. "Factual findings are not clearly erroneous if 

substantial evidence supports them, even if there is substantial conflicting 

evidence." In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 295, ¶ 

9 (App. 2000). The evidence Mother cites conflicts with other substantial

evidence supporting the court's finding that Mother had not shown she 

could provide the children a safe environment. For example, the 

caseworker testified that Mother had failed to remedy the circumstances 

that caused the out-of-home placement because, among other things, 

Mother was "inconsistent with her individual counseling," demonstrated 

poor judgment in meeting with Father in August 2016, and failed to 

acknowledge the past domestic violence as a concern. In addition, both the 

examining psychologist and Mother's counselor stated that a child in her

care could be at risk for domestic violence due to Mother's failure to resolve 

impulse-control and judgment issues through counseling. The court could 

reasonably conclude from this evidence that Mother could not effectively 

parent.

¶19 Likewise, based on the psychologist's opinion, the court could 

reasonably conclude that it was likely that Mother would not be able to

effectively parent in the foreseeable future. To be sure, the court also heard 

evidence that Mother had improved as a parent and poses less risk of abuse 

to the children than in the past. For example, Grandfather testified that

Mother had made great strides as a parent and had not communicated with 

Father other than the ill-fated attempt in August 2016 to obtain child 

support from him, and evidence also showed that she had called the police 

on Father after the August 2016 assault, was cooperating in the 

investigation and prosecution of the assault, and had obtained a protective 

order against Father. The court also heard evidence that Mother is 

employed and since 2016 had stable housing with her brother. Finally, the 

evaluating psychologist testified that Mother may possibly be able to 

adequately parent in the future. But while this evidence suggests a 

possibility that Mother may become an effective parent, it does not negate 

the psychologist's continuing concern. In the end, it is the role of the 

superior court to evaluate and resolve the conflicting evidence on this issue 

and, on this record, we will not disturb the court's decision in this regard.
ELLESSE J. v. DCS, et al.

Decision of the Court

8

C. Best Interests of the Children.

¶20 "[T]ermination of the parent-child relationship is in the child's 

best interests if the child would be harmed if the relationship continued or 

would benefit from the termination." Demetrius L., 239 Ariz. at 4, ¶ 16

(quotation omitted). Therefore, "a determination of the child's best interest 

must include a finding as to how the child would benefit from a severance 

or be harmed by the continuation of the relationship." Juv. Action No. JS500274, 167 Ariz. at 5 (emphasis omitted).

¶21 In support of its conclusion that severance was in the best 

interests of the children, the superior court wrote:

THE COURT FINDS that DCS has proven by a 

preponderance of the evidence that termination of the parentchild relationships is in the children's best interests. Mother 

had opportunities to address her relationship issues for 

almost four years. She has chosen to not fully engage in those 

services. She has not demonstrated that she has insight or 

understands the effects of domestic violence on her children. 

Given Mother's domestic violence history and lack of success 

with reunification services, the children are at risk of 

emotional and/or physical harm if returned to Mother today.

The children have been in the foster care system for too long. 

They have the right to a permanent and stable home where all 

of their needs are met. They have lived with maternal 

grandfather for almost four years. Maternal grandfather is an 

adoptive placement and is meeting all of the children's needs.

If maternal grandfather is unable to adopt, the children are 

otherwise adoptable. The current placement is the least 

restrictive placement.

¶22 It is undisputed that at the time of the severance hearing in 

2017, Grandfather was providing for the children's needs and had been 

doing so for several years. Grandfather had custody of Mother's older two 

children since 2013, and the youngest since a month after he was born in 

2014. Caseworkers reported that Grandfather provides "a safe and family 

centered environment" for the children, and that in his care, the children are 

generally active, healthy, well-behaved, and developing normally. 

Grandfather testified that the children were "normal rambunctious little 

boys" who were developing normally and "doing great."
ELLESSE J. v. DCS, et al.

Decision of the Court

9

¶23 No substantial evidence, however, shows that Grandfather is 

"an adoptive placement" for the children. To the contrary, the evidence 

showed Grandfather was unsure about whether he was willing to adopt the 

children. Outside the courtroom during trial, Grandfather told the 

children's caseworker that he was unsure whether he was going to adopt 

the children, and the DCS caseworker testified that although the children 

are adoptable, no adoptive home had been identified, and the placement 

with Grandfather was a "non-adoptive placement." Grandfather likewise 

testified that "[i]t's not my preference to raise someone else's children" and 

that he told Mother on several occasions, "I'm too old for this. I don't think 

I can do it. And if it gets to [a severance], I don't know what decision I'm 

going to make, you know." Grandfather testified that Mother is 

significantly involved in caring for the children and could effectively 

parent, and he preferred that the children be returned to her.

¶24 Grandfather's other testimony suggests he was willing to 

continue to care for the children in some other capacity, rather than adopt 

them. He responded "yes" when asked, "if the Court decides . . . to sever 

Mother's parental rights, will you have the ability to continue to take care 

of the children?" He stated that he will look for employment that "will 

enable me to do what I need to do for the grandkids." He suggested that he 

had not ruled out adoption; when asked, "if you were to adopt, you would 

not prevent [Mother] from being able to see the children," Grandfather said, 

"No, I wouldn't. I would keep it just as it is now." But at no time did 

Grandfather state or suggest that he had decided to adopt the children. 

When DCS recalled the caseworker to testify after Grandfather had 

testified, the caseworker again stated that the children were not currently 

placed in an adoptive home.

¶25 Based on this record, the superior court erred by finding 

Grandfather was willing to adopt the children. The issue therefore is 

whether we can presume the court would have come to the same bestinterests conclusion, absent that finding. As the superior court noted, the 

children had been in care for far too long, but throughout that time, 

Grandfather had provided a safe and secure environment in which they 

were doing well. On this record, severance seemingly would require the 

children to be transitioned to a different and unknown placement.

¶26 In a different legal context—a criminal sentencing—appellate 

courts occasionally must decide whether to vacate a ruling by the superior 

court when the court has exercised its discretion based on multiple factors, 

one of which proves on appeal to be unsupported by the record or legally 

erroneous. In that context, we affirm the superior court's ruling "only 
ELLESSE J. v. DCS, et al.

Decision of the Court

10

where the record clearly shows the trial court would have reached the same 

result even without consideration of the improper factors." State v. Ojeda, 

159 Ariz. 560, 561-62 (1989). In Ojeda, our supreme court vacated an order 

revoking probation and imposing a prison sentence because two out of 

three bases for revocation were unsupported by the record. Id. at 560-61. 

Even though it found there that the superior court had the power to revoke 

probation and impose the same sentence on the lone proper basis, it

declined to affirm, reasoning that doing so would "prevent[] the trial court 

from deciding whether it would have disposed of the probation violation 

differently had it been presented with only the legitimate [bases for 

revocation]." Id. at 561.

¶27 Here, we apply the same rule for the same reason, because we 

cannot discern from the record whether the superior court would have 

reached the same conclusion about the children's best interests, absent its

erroneous finding about Grandfather as a permanent placement. In the first 

place, the finding that Grandfather was willing to adopt the children was 

highly probative; a finding of an existing adoptive placement carries so 

much weight that, in and of itself, it can be sufficient to support a finding 

that severance is in the best interests of the children. See Ariz. Dep't of Econ. 

Sec. v. Oscar O., 209 Ariz. 332, 335, ¶ 8 (App. 2004) ("In combination, the 

existence of a statutory ground for severance and the immediate availability 

of a suitable adoptive placement for the children frequently are sufficient to

support a severance order."). Given the weight accorded to such a finding,

its absence may shift the balance toward denying severance.

¶28 Second, as noted, the record contains substantial evidence 

that the children would continue to do well in Grandfather's care if the 

court were to decide to allow Mother additional time to demonstrate she is 

able to adequately parent. The record does not show that it would be futile 

to delay a ruling on severance. The court heard evidence suggesting that 

Mother may become capable of effectively parenting in the foreseeable

future, including her positive interactions with her children and her 

significant involvement in the present situation under which the children 

are thriving; her new housing arrangement with her brother; the fact that 

she is employed; her progress in counseling when she attends; the fact that 

she needs only 10 to 15 more sessions to successfully complete counseling;

the psychologist's testimony that she may be able to adequately parent in 

the future; the fact that she reported Father's August 2016 assault to police 

and cooperated with the investigation and prosecution; and her lack of 

contact with Father since that assault and the protective order she has 

against him. On this record, it appears that absent the court's mistaken 
ELLESSE J. v. DCS, et al.

Decision of the Court

11

finding, it could have reasonably concluded that the children's best interests 

favored giving Mother more time to demonstrate parental fitness.

¶29 As support for its best-interests finding, the superior court 

also noted that the children are adoptable. See Demetrius L., 239 Ariz. at 3-

4, ¶ 12 ("best interest requirement may be met if the petitioner proves . . . 

that the child is adoptable"). But nothing in the record would require the 

superior court to find the best-interests requirement satisfied based on that 

finding alone. At the same time, given the apparent absence of another 

family member willing or able to adopt, the superior court must consider 

whether severing Mother's parental rights would unnecessarily deprive the 

children of an environment in which they are now together and doing well.

CONCLUSION

¶30 The evidence supports the superior court's finding that DCS 

proved the statutory grounds for severance based on 15 months' time-incare. The record does not clearly show, however, that the court would have 

found that severance was in the children's best interests absent its finding 

that Grandfather was an adoptive placement. Accordingly, we vacate the 

order severing Mother's parental rights and remand so that the superior 

court may reconsider whether severance is in the children's best interests. 

We express no view of the merits of that decision on remand.