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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

JOHANNA K., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.H., Appellees.

No. 1 CA-JV 15-0203 

Appeal from the Superior Court in Yuma County 

No. S1400JD20130331 

The Honorable Mark Wayne Reeves, Judge 

AFFIRMED 

COUNSEL 

Mary Elizabeth Perez, San Diego, CA 

Counsel for Appellant 

Arizona Attorney General’s Office, Mesa

By Amanda L. Adams 

Counsel for Appellee Department of Child Safety
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined. 

W I N T H R O P, Judge: 

¶1 Johanna M. (“Mother”) appeals the juvenile court’s order 

severing her parental rights to her biological child, R.H. (“Child”). Mother 

does not contest the findings of the statutory ground for severance, but 

contends the juvenile court erred in concluding severance was in the 

Child’s best interest. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 The Child, born in 2005, came into the care of the Department 

of Child Safety (“DCS”), was found to be dependent as to both parents due 

to Mother’s mental illness and both parents’ neglect, domestic violence, and 

substance abuse, and was placed with her paternal grandmother and 

paternal step grandfather (collectively “the Grandparents”), with whom the 

Child’s half-sibling also resided. 

¶3 DCS offered Mother an array of services and assistance—

such as substance-abuse services, drug testing, psychological counseling 

(including domestic-violence counseling), parenting classes, parent-aide 

services, supervised visits, and transportation—geared toward 

reunification. Mother minimally participated in the services, never tested 

negative for controlled substances, denied any mental health need, and did 

not recognize her behaviors could and did negatively impact the Child. 

Mother was not employed and did not have a residence of her own. The 

Child was fearful of Mother and was adamant that she did not want to see 

Mother at all. 

¶4 In 2014, DCS moved to sever the parental relationship 

between Mother1 and the Child on the ground of cumulative fifteen-month 

 

1 DCS did not seek to sever the parental rights of the Child’s biological 

father (“Father”) and, instead, suggested reunification and permanent 

guardianship as the concurrent case plan with severance and adoption 
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

3

out-of-home placement, and asserted severance would serve the best 

interest of the Child. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c).2 

Sometime later, DCS moved to dismiss the severance petition, arguing it 

now believed that severance would not be in the best interest of the Child 

because the Child would not be adoptable as Father’s parental rights were 

still intact, the Child would lose any inheritance from Mother and social 

security benefits in the event of Mother’s death, and potential concerns for 

the Child’s mental health stemming from interaction with Mother could be 

addressed by court orders or exercise of guardianship authority by the 

Grandparents. The court denied DCS’s motion to dismiss the severance 

petition, and continued with the severance proceedings. After a bench trial, 

the juvenile court found DCS had met its burden of proving the statutory 

ground and that severance was in the Child’s best interest, and severed 

Mother’s parental rights.

3 

¶5 Mother timely appealed. We have appellate jurisdiction 

pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A); 

and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. 

ANALYSIS 

¶6 Mother appeals only the portion of the court’s order finding 

that severance was in the Child’s best interests.

4 Unless the trial court’s 

 

because Father had complied to date with the services provided by DCS, 

and had remained free of controlled substances. 

2 We cite the current version of the applicable statutes unless revisions 

material to this decision have occurred since the events in question. 

3 After the severance, the juvenile court appointed the Grandparents 

as permanent guardians of the Child as to Father. 

4 In its answering brief, DCS contends the denial of its motion to 

dismiss its severance petition is not reviewable on this appeal. We disagree 

because the denial of that motion was an intermediate order that 

substantively affected the judgment of severance and involved the merits 

of the action, i.e., whether severance was in the best interest of the Child. 

See A.R.S. § 12-2102(A) (requiring the appellate court review any 

intermediate orders involving the merits of the action and necessarily 

affecting the judgment); Truck Ins. Exch. v. State Comp. Fund, 138 Ariz. 116, 

118, 673 P.2d 314, 316 (App. 1983) (holding we review such an intermediate 

order). 
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

4

findings of fact were clearly erroneous, we will not disturb the court’s 

severance order absent an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of 

Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). On appeal, we 

view the evidence in the light most favorable to upholding the juvenile 

court's order and will affirm the court’s factual findings if “supported by 

reasonable evidence.” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–

94, ¶ 4, 210 P.3d 1263, 1264–65 (App. 2009); Manuel M. v. Ariz. Dep’t of Econ. 

Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). 

¶7 Parental rights in the care, custody, and management of their 

children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz. 

279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S. 

745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, 

¶¶ 11–12, 995 P.2d 682, 684 (2000)). The juvenile court may still sever those

rights if it finds clear and convincing evidence of one of the statutory 

grounds for severance, and finds by a preponderance of the evidence that 

severance is in the best interest of the children. See A.R.S. §§ 8-533(B), -

537(B); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–16, 1022. 

Mother does not contest the juvenile court’s findings on the statutory 

ground and, thus, has waived any argument on that ground in this appeal. 

See Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 

(App. 2000) (stating that issues not clearly raised in appellate briefs are 

deemed waived). 

¶8 To prove severance is in a child’s best interest, DCS must 

show that severance either provides an affirmative benefit because the child 

is adoptable or is more stable in an existing placement, or eliminates a threat 

or detriment to the child if the relationship between the parent and the child 

is allowed to continue. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 

6–7, 804 P.2d 730, 735–36 (1990); Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 

332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004).5 The best interest requirement 

may be met if, for example, a current adoptive plan exists for the child, or 

even that the child is adoptable. JS–500274, 167 Ariz. at 6, 804 P.2d at 735; 

Maricopa Cty. Juv. Action No. JS–501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 

(App. 1994). The juvenile court may also consider evidence that an existing 

placement is meeting the needs of the child in determining severance is in 

the child’s best interest. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 

377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). The court may also take into 

 

5 We note, in presenting her best-interest argument, Mother’s counsel 

relies in part on Angel S. v. Dep’t of Child Safety, 237 Ariz. 132, 347 P.3d 578 

(App. 2015), which was depublished by Angel S. v. Dep’t of Child Safety, 238 

Ariz. 84, 357 P.3d 119 (2015) before the filing of her brief. 
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

5

account that, in most cases, “the presence of a statutory ground [for 

severance] will have a negative effect on the children.” Bennigno R. v. Ariz. 

Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23, 312 P.3d 861, 866 (App. 2013)

(quoting Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 

785, 788 (App. 1988)). 

¶9 This record here supports the juvenile court’s finding that 

severance was in the best interest of the Child. First, severing Mother’s 

parental rights would affirmatively benefit the Child. It would give the 

Child peace of mind, and she would not be stressed by continuing 

interactions with Mother; the Child could live in a stable, violence- and 

drug-free environment, and maintain the existing bond with her halfsibling. Also, the current placement with the Grandparents meet the 

Child’s needs. Second, leaving Mother’s parental rights intact would be 

detrimental to the Child. Mother refuses to acknowledge her mental health 

problems and her role in causing the strained relationship between her and 

the Child, or to take measures to repair the relationship. Further, based on 

the testimony presented at the severance hearing, the court found that there 

is a substantial likelihood that Mother will not be capable of exercising 

proper and effective parental care and control in the near future. And, 

although the Child presently does not need therapy, Mother’s further 

attempts to contact or interact with the Child or to contest the guardianship 

would likely create further anxiety for the Child, triggering a likely need 

for professional intervention. And, finally, as noted above, Mother has not 

contested the existence of a statutory ground for severance; as such, the 

juvenile court could find that the existence of that ground will also likely 

negatively affect the Child. 

¶10 Mother reiterates the same arguments advanced by DCS 

during the hearing on its motion to dismiss the severance petition, and 

contends severing her relationship with the Child would not produce any 

benefit to the Child. She further argues that the severance would in fact be 

detrimental to the Child because the Child would not be adoptable as 

Father’s parental rights are not severed. She also contends that any 

problems associated with the Child’s fear toward her can be managed 

within the context of the existing guardianship, and the Child would lose 

social security death benefits and any inheritance from Mother. The 

juvenile court was not persuaded by these arguments, and this court is not 

persuaded either. 

¶11 First, the possibility of adoption for the Child has not been 

foreclosed because Father’s parental rights may be severed in the future and 

the Grandparents are willing to adopt the Child if necessary. Moreover, 
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

6

even if an adoption plan is not currently in place for a child or the child is 

not adoptable, severing parental rights of the child’s parent can still serve 

the best interest of the child because the availability of adoption is only one 

of the factors to consider in the process of weighing the benefits of 

severance against the detriments from continuation of the parent-child 

relationship. Pima Cty. Juv. Action No. S-2460, 162 Ariz. 156, 157–58, 781 

P.2d 634, 635–36 (App. 1989). Second, Grandparents are currently the 

Child’s appointed guardians and the Child has thrived at the current 

placement at the Grandparents’ home. With severance of Mother’s parental 

rights, the Child can remain in a stable, permanent environment without 

worrying whether and when Mother would return. Without severance, it 

is unlikely that the Child’s fear toward Mother could realistically be 

eliminated or effectively managed, either in continuing juvenile court 

proceedings or via guardianship proceedings in the probate court. Third, 

the argument of losing social security benefits or a potential inheritance is 

tenuous and unpersuasive; such a potential loss exists in every severance 

proceeding. 

¶12 Mother argues that a ten-year-old girl may understandably 

have emotional issues with her mother, but that the Child’s feelings toward 

her may change in the future, and there is no evidence of physical abuse or

emotional cruelty that justifies the permanency of severance. To the 

contrary, there is no evidence in the record that shows Mother has 

acknowledged her role and responsibility in creating and perpetuating the 

strained relationship between her and the Child, or that Mother has taken 

any steps to improve the relationship. The Child is adamant in her desire 

not to see Mother ever again. Without any behavioral changes from 

Mother, there is nothing in the record to suggest that the Child’s feelings 

toward Mother will likely change. The statutory ground for severance was 

fifteen months out of home placement; accordingly, the absence of 

documented physical or emotional abuse is not a compelling factor in the 

court’s best-interest analysis. 

¶13 Mother also implies the juvenile court unfairly severed her 

parental rights while leaving Father’s rights intact, pointing out that the 

same ground for severance exists as to Father. This assertion is not 

supported by the record. Although Father is not ready to resume his 

parental duties, he has, unlike Mother, successfully completed the services 

provided by DCS; accordingly, the statutory ground of fifteen-month outof-home placement does not yet apply to Father. In addition, Father and 

the Child have a good and stable relationship, one that the Child currently 

wishes to maintain. 
JOHANNA K. v. DCS, R.H. 

Decision of the Court 

7

CONCLUSION 

¶14 The juvenile court did not abuse its discretion in finding that 

the Child’s best interest would be served by severing Mother’s parental 

rights, and we affirm that order.