Ploof v. Arizona, State of et al

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WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Jessica Ploof,

Plaintiff,

v.

State of Arizona, et al.,

Defendants.
No. CV-21-00853-PHX-JJT

ORDER

Before the Court are summary judgment motions from Plaintiff Jessica Ploof (Doc.
121–22), Defendants Paige Szymkowski,
1
Claudia Hoff, Meagan Tafoya, Sarah Greenway
and Nick Breeding (collectively “DCS Defendants”) (Doc. 106–07), and Dr. James Thal
(Doc. 113–14), and a separate motion to exclude the report and testimony of Plaintiff’s
standard-of-care expert Timothy Turner (Doc. 109). No party has requested oral argument
under LRCiv 7.2(g).
I. BACKGROUND
The following facts are undisputed.

1
This defendant is also referred to in some records as Paige Wooldridge. For clarity, the
Court will refer to this defendant by her former surname, Szymkowski, consistent with
most of the parties’ briefing and other papers before the Court.
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Ms. Szymkowski r
eferred Plaintiff to a psychological evaluation with forensic
examiner Dr. Thal, a psychologist with a service contract with DCS. (Doc. 122 ¶¶ 20–21;
Doc. 122-17; Doc. 124-10.) Dr. Thal evaluated Plaintiff

On October 2, 2017, Ms. Szymkowski completed a case note indicating that

Later in her deposition, Ms. Szymkowski admitted that Ms. Tafoya’s initial
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investigation of the home revealed that it was “free from any safety hazards.” (Doc. 122-
43 at 5–8.)
On November 24, 2017, Ms. Szymkowski reported to the juvenile court that
Plaintiff had participated in

(Doc. 124-9 at 8.) Ms. Szymkowski reported that

Sometime in December 2017,
Ms. Szymkowski ended her role in the case and Ms. Hoff began acting as the case manager
on January 3, 2018. (Doc. 122 ¶ 23; Doc. 133 ¶ 23; Doc. 124-5 at 4.)

On January 4, 2018, Dr. Thal performed his psychological evaluation of Plaintiff’s
mother. (Doc. 122 ¶ 25; Doc. 124-13.) Dr. Thal determined that the

Dr. Thal completed his report and emailed it to Ms. Szymkowski on January 18,
2018. (Doc. 122-22 at 2.) Ms. Szymkowski responded to Dr. Thal on January 24, 2018,
“[d]o you have time to discuss the below client?” and scheduled a phone meeting for
January 30, 2018. (Doc. 122-22 at 3–4.) As planned, Ms. Szymkowski spoke with Dr. Thal.
(Doc. 122 ¶ 28; Doc. 133 ¶ 28.)
On February 1, 2018, Ms. Hoff emailed Dr. Thal that she knew he spoke with Ms.
Szymkowski and recommended that he update the report with any changes and scan it
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directly to Ms. Hoff for disclosure because the first report was not yet circulated. (Doc. 122
¶ 31; Doc. 122-27 at 2.) Dr. Thal responded to Ms. Hoff that he “didn’t realize the [first]
report had not been distributed as yet” and “will re-work the recommendations . . .” (Doc.
122 ¶ 33; Doc. 122-27 at 2.) He asked Ms. Hoff to shred copies of the first report while he
prepares the second report, and Ms. Hoff agreed. (Doc. 122-27 at 2; Doc. 122 ¶ 32.)
Nonetheless, the first report was distributed to the parties. (Doc. 122 ¶ 34.)
On February 7, 2018, Dr. Thal issued a second report of his psychological
evaluation of Plaintiff’s mother. (Doc. 122 ¶ 29.) While he continued to recommend that

Dr. Thal would later testify
at this deposition that, after his conversation with Ms. Szymkowski, he reviewed the same
information submitted to him for the first report and felt “compelled [] on further review
and to look at those things closely to make changes to that report.” (Doc. 122-18 at 29–30.)
The juvenile court inquired about the two versions of Dr. Thal’s report of Plaintiff’s
mother’s psychological evaluation. Dr. Thal prepared a letter to Ms. Hoff that explained:

[Ms. Szymkowski] has had significant concerns about the
maternal grandmother’s ability to meet [the child’s] needs. Ms.
Szymkowski, who did not ask me to change anything in my
report, expressed her concerns about the substandard condition
of the grandmother’s residence and the child’s very poor
overall condition when he came into care. [The child],
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according to Ms. Szymkowski, was grossly neglected and
under-developed while in the grandmother’s home and,
presumably, while in the grandmother’s care, at least part of
the time . . .

A second major point raised by Ms. Szymkowski in our
1/30/18 telephone conversation, had to do with the critically
important relationship she believed [the child] had established
with his foster parents. [Ms. Szymkowski] was clearly
concerned about the traumatic impact of removing [the child]
from a secure placement where he was (A) bonded and (B) had
made significant progress. I advised Ms. Szymkowski that I
would review my findings and consider drafting a follow-up
letter suggesting ways to address her concerns regarding the
grandmother and the question of [the child’s] best interest.

. . . You [Ms. Hoff] emailed me on 2/1/18 and suggested, in
lieu of a follow-up letter, that I could simply make my changes
to [Plaintiff’s mother’s] evaluation report because you had not
yet disclosed the report. I responded via email on 2/2/18
advising you that I would make any revisions directly to
[Plaintiff’s mother’s] report and re-issue the report to you. I
also asked you to shred the original report so as to avoid any
confusion. In any case, the revised [] report, which I released
to you on 2/7/18, represents my final and complete
psychological evaluation of [Plaintiff’s mother].

(Doc. 122 ¶¶ 39–40; Doc. 133 at ¶¶ 39–40; Doc. 122-25.)
On February 28, 2018, Plaintiff

Ms. Hoff did not assign a family
reunification team. (Doc. 122 ¶ 36; Doc. 133 at ¶ 36.)
On March 7, 2018, Ms. Hoff referred Plaintiff, her mother, and the child to Dr.
Bryce Bennett for a bonding evaluation pursuant to Dr. Thal’s second report. (Doc. 122
¶ 44; Doc. 124-16 at 2.) Dr. Bennett noted that

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On June 21, 2018, Ms.
Hoff received Dr. Bennett’s report and notified him that DCS
is “going to attempt to terminate parental rights.” (Doc. 122-34 at 2.) On August 14, 2018,
DCS moved the juvenile court to terminate Plaintiff’s parental rights of the child,

As additional grounds for
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termination, DCS alleged

On October 18, 2018, Dr. Thal conducted a second psychological evaluation of
Plaintiff. At the time of the evaluation, Plaintiff was living independently in a two-bedroom
apartment and had started her first job as a caretaker for a disabled adult. (Doc. 122-37 at
4, 6; see also Doc. 122 ¶ 48.) According to Dr. Thal, Plaintiff still lacked an understanding
of the reasons for DCS involvement that included “deplorable living conditions and reports
that [the child] was alarmingly under-developed.” (Doc. 122-37 at 9.) Dr. Thal found that
Plaintiff was “best suited to assist a fully capable and competent caregiver” and that the
child, if left in Plaintiff’s sole care, “would likely be at risk for inadequate intellectual
stimulation” and “routine care and attention.” (Doc. 122-37 at 9.)
In light of the adverse psychological and bonding evaluations mounting against
Plaintiff, she retained Dr. Lee Underwood to conduct a rebuttal psychological evaluation
of her. (Doc. 121 at 11.) That evaluation took place on March 30 and April 1, 2019. (Doc.
124-19 at 2.) In a report issued April 19, 2019, Dr. Underwood recommended that

The juvenile court held a severance trial
On July 30, 2019, the juvenile court ordered
that Plaintiff’s parental rights be terminated and denied Plaintiff’s competing motion
requesting the juvenile court to appoint her mother as the child’s guardian. (Doc. 117-1 at
14–28.)
Plaintiff appealed and the Arizona Court of Appeals affirmed the juvenile court’s
order. Plaintiff appealed again, and the Arizona Supreme Court vacated a portion of the
appellate court’s decision that is not relevant here, and upon remand the appellate court
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again affirmed the juvenile court’s order. See Jessica P. v. Dep’t of Child Safety, H.P., 471
P.3d 672 (Ariz. App. 2020), opinion vacated in part and remanding, CV-20-0241-PR,
2020 WL 8766053 (Ariz. Dec. 15, 2020), aff’d upon remand, 484 P.3d 148 (Ariz. App.
2021).
The instant action ensued. Plaintiff asserts that her Fourteenth Amendment right to
due process was violated and brings three claims under the Civil Rights Act of 1964,
42 U.S.C. § 1983, for judicial deception against Ms. Szymkowski (Count Four), civil
conspiracy to commit judicial deception against Ms. Szymkowski, Ms. Hoff, and Dr. Thal
(Count Five), and failure to make reasonable efforts to preserve the family relationship
against the DCS Defendants (Count Six). (Doc. 54, FAC, ¶¶ 243–79.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate
when the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the
outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could
resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA,
LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). When, as here, “parties submit cross-motions for summary judgment,
each motion must be considered on its own merits.” Fair Hous. Council of Riverside Cnty.,
Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citation modified).
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] . . . which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232.
When the moving party does not bear the ultimate burden of proof, it “must either produce
evidence negating an essential element of the nonmoving party’s claim or defense or show
that the nonmoving party does not have enough evidence of an essential element to carry
its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,
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210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of
production, the nonmoving party must produce evidence to support its claim or defense.
Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving
party, draw all reasonable inferences in the nonmoving party’s favor, and regard as true the
nonmoving party’s evidence as long as it is supported by affidavits or other evidentiary
material. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011); Anderson, 477
U.S. at 255. However, the nonmoving party may not merely rest on its pleadings; it must
produce some significant probative evidence tending to contradict the moving party’s
allegations, thereby creating a material question of fact. Anderson, 477 U.S. at 256–57
(holding that the plaintiff must present affirmative evidence in order to defeat a properly
supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on
conclusory allegations unsupported by factual data.”) (citation omitted).
III. ANALYSIS
A. Count Four: Judicial Deception
There is “a constitutional right under the Due Process Clause of the Fourteenth
Amendment to be free from judicial deception and fabrication of evidence in the context
of civil child custody cases.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1146 (9th
Cir. 2021). A § 1983 claim of judicial deception requires a plaintiff to show (1) the
defendant made false statements or omissions (2) deliberately or recklessly (3) that were
material to a judicial decision. Id. at 1147. Whether a false statement or omission was
“material” to a judicial decision is a “threshold issue” and a question of law. Liston v. Cnty.
of Riverside, 120 F.3d 965, 974 (9th Cir. 1997), as amended (Oct. 9, 1997), overruled on
other grounds, Saucier v. Katz, 533 U.S. 194 (2001). The alleged misrepresentation is
material to a judicial decision if the court would have declined to reach that decision or
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would have had no substantial basis to reach that decision had the misrepresentation not
been made. See Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009), vacated in part
on other grounds, 563 U.S. 692 (2011); Benavidez, 993 F.3d at 1148.
As a preliminary matter, Plaintiff’s fourth claim is asserted against Ms. Szymkowski
only. In her papers submitted to the Court, though, Plaintiff identifies several statements
and conduct that are not only attributable to Ms. Szymkowski, but to Ms. Hoff and Dr.
Thal. (Doc. 121 at 19; Doc. 158 at 6–7.) In responding to Plaintiff’s summary judgment
motion, DCS argues that Plaintiff must “identify any false statement that Szymkowski
made to the juvenile court,” but she instead focuses primarily on Dr. Thal’s conduct. (See
Doc. 132 at 3.) DCS similarly points out this discrepancy in its own summary judgment
motion, noting that it is “problematic because judicial deception is only plead against
Szymkowski and not any other DCS Defendant.” (Doc. 106 at 12 n.7.) Plaintiff provides
no response to explain or justify this discrepancy.
DCS’s point that the judicial deception claim is pled only as to Ms. Szymkowski is
well-taken and evokes the principle that “issues on summary judgment are framed by the
complaint.” Rodriguez v. Countrywide Homes, 668 F. Supp. 2d 1239, 1246 (E.D. Cal.
2009). By design, the general rules of pleading set forth in Federal Rule of Civil Procedure
8 mandate a pleading that “guides the parties’ discovery, putting the defendant on notice
of the evidence it needs to adduce in order to defend against the plaintiff’s allegations.”
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000). “Simply put, summary
judgment is not a procedural second chance to flesh out inadequate pleadings.” Wasco
Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation omitted).
Here, Plaintiff pleads her fourth claim only against Ms. Szymkowski and alleges
that Ms. Szymkowski testified falsely before the juvenile court and falsely represented that
Plaintiff medically neglected her child. (FAC ¶¶ 243–50.) In her fifth claim, Plaintiff
alleges a conspiracy between Ms. Szymkowski, Ms. Hoff, and Dr. Thal to alter and shred
the psychological evaluation of Plaintiff’s mother. (FAC ¶¶ 251–58.) As pled, these two
claims are legally distinct and must be treated as such. Accordingly, the Court will limit its
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review of the arguments and evidence regarding Plaintiff’s fourth claim to whatever
statements are attributable only to Ms. Szymkowski.
i. Plaintiff’s Summary Judgment Motion
Plaintiff argues that Ms. Szymkowski peddled a false narrative to Dr. Thal, in DCS
records, and in her testimony at the severance trial that “[the child’s] medical needs were
not being met in the home, the home itself was in substandard condition, and [the child]
was severally [sic] delayed and not receiving services.” (Doc. 158 at 7.) According to
Plaintiff, these statements were not supported by DCS’s own investigation but nonetheless
guided Dr. Thal to alter his first report of Plaintiff’s mother’s evaluation and recommend a
bonding evaluation that ended up being averse to reunification. (Doc. 158 at 8.)
DCS responds that the record shows only that Ms. Szymkowsi made statements to
Dr. Thal but not to the juvenile court. While the juvenile court later became aware of Ms.
Szymkowski’s statements to Dr. Thal, it also heard the testimony of Ms. Szymkowski and
Dr. Thal during the severance trial—which included cross-examination by Plaintiff’s
counsel—regarding their communications and the circumstances surrounding the second
report. (Doc. 132 at 3.) According to DCS, the juvenile court could not have been deceived
when Ms. Szymkowski’s purportedly false statements were tested through cross-
examination afforded by the judicial process. (Doc. 132 at 3.)
In reply, Plaintiff does not dispute that she had the opportunity, and did, cross-
examine Ms. Szymkowski and Dr. Thal, or that the juvenile court was made aware of the
circumstances surrounding the second report. Instead, Plaintiff argues that the testimony
offered at the severance trial could not cure the deception of Ms. Szymkowski’s statements
when “the deception itself shaped the evidence and trajectory [of the case] through
undisclosed ex parte influence and attempted destruction of the original report,” so “the
decision-making process itself was tainted.” (Doc. 158 at 8–9.)
Even so, it is Plaintiff’s initial burden as the moving party to establish an absence
of a genuine issue as to whether such statements were material to the juvenile court’s
severance determination. Celotex, 477 U.S. at 232. Materiality, while a threshold issue, is
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referenced by Plaintiff only in conclusory terms in her motion and reply brief. For example,
Plaintiff describes the “falsehoods and omissions” submitted by DCS as “material,” and
Dr. Thal’s second report as “materially altered,” but does not explain how the juvenile
court’s severance determination turned on those statements. In fact, Plaintiff does not
explain, refer to, or cite the juvenile court’s severance order at all in her moving papers.
Based on the record and arguments presented by Plaintiff in support of her summary
judgment motion, the Court cannot find that the statements she identified were material to
the juvenile court’s decision. Accordingly, the Court denies summary judgment in favor of
Plaintiff as to Count Four.
ii. DCS’s Summary Judgment Motion
DCS argues that the fourth claim fails because Plaintiff lacks evidence that the
statements made by Ms. Szymkowski were false, made to the juvenile court, or were
material to the juvenile court’s decision. (Doc. 106 at 8–9.)
Plaintiff responds that Ms. Szymkowski falsely testified before the juvenile court
that the home was in a substandard condition, the child’s DDD services had been
discontinued when DCS became involved, the child was severely neglected, and Plaintiff’s
mother used a tampering device the second time she submitted to a drug test. (Doc. 139 at
18; Doc. 140 ¶¶ 31, 40.)
DCS argues that any statements made during in-court testimony are protected by
absolute witness immunity
3
as established by Briscoe v. LaHue, 460 U.S. 325 (1983). (Doc.
106 at 8.) See also Darragh v. Superior Ct. In & For Cnty. of Maricopa, 900 P.2d 1215,
1217 (Ariz. App. 1995) (recognizing absolute witness immunity regarding testimony in
judicial proceedings). Plaintiff offers no argument to this point and thereby concedes that
Ms. Szymkowsi is immune from liability for her statements made while testifying in the
severance trial. See Versluys v. Weizenbaum, No. 3:21-CV-01694-MO, 2023 WL 6880412,
at *2 (D. Or. Oct. 18, 2023), aff’d sub nom. Versluys v. White Pine Circle LLC, No. 23-

3
Because no party raises it in the summary judgment briefing, the Court does not consider
whether other forms of absolute immunity—including the quasi-prosecutorial and quasi-
judicial varieties—apply to the in-court testimony of Ms. Szymkowski.
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3982, 2024 WL 5183201 (9th Cir. Dec. 20, 2024) (“A party waives an argument at the
summary judgment stage if it provides no argument in support of its position or does not
adequately develop the argument.”) (collecting cases); Bailey v. P.B. Bell Asset Mgmt. Inc.,
No. CV-19-01761-PHX-SMB, 2020 WL 6680364, at *9 (D. Ariz. Nov. 12, 2020).
Next, Plaintiff responds that Ms. Szymkowski submitted a referral packet to Dr.
Thal that contained false information and noted in an Assessment Plan that the home was
kept in dirty and unsafe conditions. (See Doc. 140 ¶ 40.) Assuming that both documents
were provided to the juvenile court—which Plaintiff fails to establish—Plaintiff presents
no argument regarding the materiality of such statements to the juvenile court’s decision.
Plaintiff fails to establish a genuine dispute of material fact regarding her judicial
deception claim against Ms. Szymkowski. Because summary judgment is appropriate as to
the fourth claim, the Court need not reach the alternative arguments raised by DCS that
include collateral estoppel doctrine and qualified immunity.
B. Count Five: Civil Conspiracy
“Conspiracy is not itself a constitutional tort under § 1983” and “does not enlarge
the nature of the claims asserted by the plaintiff, as there must always be an underlying
constitutional violation.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012)
(citations omitted). To prevail on a civil conspiracy claim under § 1983, a plaintiff must
show: “(1) the existence of an express or implied agreement among the defendant officers
to deprive him of his constitutional rights, and (2) an actual deprivation of those rights
resulting from that agreement.” Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010) (citation
omitted).
i. Plaintiff’s Summary Judgment Motion
Plaintiff moves for summary judgment on her civil conspiracy claim against Ms.
Szymkowski, Ms. Hoff, and Dr. Thal, asserting that they conspired to terminate Plaintiff’s
parental rights. To be precise, Plaintiff’s conspiracy claim is rooted in her “constitutional
right under the Due Process Clause of the Fourteenth Amendment to be free from judicial
deception and fabrication of evidence in the context of civil child custody cases.”
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Benavidez, 993 F.3d at 1146. (See FAC at 28.) As discussed above, Plaintiff failed to carry
her burden of showing the absence of genuine fact as to judicial deception asserted against
Ms. Szymkowski.
To the extent Plaintiff now argues that Dr. Thal and Ms. Hoff independently
deprived her of a constitutional right by way of judicial deception, she failed to properly
plead that claim and cannot use her summary judgment motion as a substitute pleading.
Wasco Prods., 435 F.3d at 992. Even if she could, Plaintiff’s summary judgment motion
completely overlooks the materiality element of a judicial deception claim as to the
statements made by Dr. Thal and Ms. Hoff. (See Doc. 121 at 12–17; Doc. 158 at 6–8.)
Plaintiff’s contention that the false statements made by Dr. Thal and Ms. Hoff were
presented to the juvenile court, either through direct testimony or vicariously through
psychological or bonding evaluations, does not inherently mean that those statements were
material to the juvenile court’s decision. That is for Plaintiff to argue and show this Court,
and she does not. Celotex, 477 U.S. at 232. The Court denies summary judgment in favor
of Plaintiff as to Count Five.
ii. DCS and Dr. Thal’s Summary Judgment Motions
DCS and Dr. Thal also move for summary judgment on Plaintiff’s fifth claim, both
respectively arguing that Plaintiff fails to establish a genuine dispute that she was deprived
of her constitutional rights through judicial deception.
The Court has already found that, in response to DCS’s motion, Plaintiff failed to
establish any genuine issue of fact as to her judicial deception claim against Ms.
Szymkowski.
Assuming that Plaintiff’s First Amended Complaint could be interpreted to assert
an independent judicial deception claim against Ms. Hoff or Dr. Thal, Plaintiff still fails to
establish a genuine issue as to whether that deception was material to the juvenile court’s
decision to terminate Plaintiff’s parental rights. Celotex, 477 U.S. at 322. Materiality is an
essential, threshold element of a judicial deception claim, Liston, 120 F.3d at 974, but
Plaintiff’s only discussion of it begins and ends with one single conclusion: without the
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case managers’ communications with Drs. Thal and Bennett, Dr. Thal’s second report, Ms.
Hoff’s agreement to shred the first report, and Dr. Bennett’s “reliance” on Dr. Thal’s report,
the juvenile court’s decision to terminate Plaintiff’s parental rights was not guaranteed.
(Doc. 138 at 14; Doc. 139 at 18.) But this conclusion is far from obvious on this record,
and Plaintiff offers no reasoning, reference to the juvenile court’s order, or marshaling of
the law or evidence that would have compelled the juvenile court to reach a different
outcome. To reach the conclusion offered by Plaintiff here, the Court would have to review
the juvenile court order and state law governing severance, consider what evidence was
presented to the juvenile court, formulate its own legal reasoning, and essentially assume
the role of Plaintiff’s advocate. The Court cannot, and will not, take on such a task.
Accordingly, the Court grants summary judgment in favor of DCS and Dr. Thal on this
claim.
C. Count Six: Failure to Make Reasonable Efforts
In Arizona, DCS has a constitutional obligation to make reasonable and diligent
efforts to preserve the family. Donald W. v. Dep’t of Child Safety, 444 P.3d 258, 271 (Ariz.
App. 2019). This obligation is “defined on constitutional grounds as a necessary element
of any state attempt to overcome what the United States Supreme Court has described as
the ‘fundamental liberty interest of the natural parents in the care, custody and management
of their child.’” Mary Ellen C. v. Arizona Dep’t of Econ. Sec., 971 P.2d 1046, 1053 (Ariz.
App. 1999) (internal citation omitted). Diligent and reasonable efforts may vary case-to-
case but at minimum require “DCS to identify the conditions causing the child’s out-of-
home placement, provide services that have a reasonable prospect of success to remedy the
circumstances as they arise throughout the time-in-care period, maintain consistent contact
with the parent, and make reasonable efforts to assist the parent in areas where compliance
proves difficult.” Donald W., 444 P.3d at 272. “[T]he court must also consider the totality
of the circumstances when determining whether DCS has made diligent efforts.” Id.
i. Plaintiff’s Summary Judgment Motion
Plaintiff contends that summary judgement in her favor is warranted because:
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(1) Ms. Tafoya “failed to thoroughly investigate the hotline call allegations before she
sought removal via a Temporary Custody Notice”; (2) Ms. Szymkowski and Ms. Hoff each
“improperly and willfully interfered with the reunification process” by communicating
with Drs. Thal and Bennett; (3) and Ms. Hoff and her supervisor, Mr. Breeding, failed to
refer Plaintiff to a family reunification team despite the parent aide’s recommendation.
(Doc. 121 at 18.)
In response, DCS argues that even assuming these facts are true the juvenile court
record nonetheless demonstrates the reasonableness of efforts provided. The portions of
that record it cites show that DCS offered several therapeutic services to Plaintiff to address
her substance use and develop her parenting skills, referred Plaintiff and her mother to joint
therapy to further co-parenting efforts, and apprised the juvenile court of Plaintiff’s
participation in and completion of services. (Doc. 132 at 7–8.)
In reply, Plaintiff argues that DCS still “failed to reasonably advance recommended
reunification and instead maneuvered the matter toward termination despite [Plaintiff’s]
compliance with and undisputed success in services.” (Doc. 158 at 12.) The specific failure,
according to Plaintiff, is that she was not referred to a family reunification team as
recommended by the parent aide. (Doc. 158 at 12–13.) She makes no further substantive
argument regarding whether Ms. Tafoya’s pre-removal investigation or the case managers’
communication with Drs. Thal and Bennett constitute a failure to make reasonable efforts.
Even if she had, the Court has difficulty understanding how either of those conditions
would impact the reasonable-efforts analysis as formulated by Donald W., 444 P.3d at 272.
No party explains what a family reunification team precisely does, how it differs
from other services already provided, or the futility (or lack of futility) of that service. Still,
the Court can infer from the name of the service alone that it would entail some kind of
“team” approach to attempt reunifying Plaintiff with her child. But DCS’s provision of
multiple therapeutic services and efforts to explore a co-parenting structure to preserve the
family creates a genuine issue as to whether assigning a family reunification team would
have had a reasonable prospect of success to remedy the circumstances that existed at the
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time. Accordingly, the Court denies summary judgment in favor of Plaintiff as to Count
Six.
ii. DCS’s Summary Judgment Motion
DCS moves for summary judgment on Plaintiff’s sixth claim, arguing that the claim
is precluded. The claim preclusion doctrine “bars all grounds for recovery which could
have been asserted, whether they were or not, in a prior suit between the same parties on
the same cause of action.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th
Cir. 1982) (citation modified). Under the laws of Arizona, a state court action has
preclusive effect if there is (1) a final judgment on the merits, (2) common identity of the
parties and the capacity in which they appeared, (3) common identity of the subject matter
and (4) common identity of the cause of action. See Matusik v. Arizona Pub. Serv. Co., 684
P.2d 882, 884 (Ariz. App. 1984). “Arizona courts apply the ‘same evidence’ test,
precluding a second action when ‘no additional evidence is needed to prevail in the second
action than that needed in the first.’” Lawrence T. v. Dep’t of Child Safety, 438 P.3d 259,
264 (Ariz. App. 2019) (citing Phoenix Newspapers, Inc. v. Dep’t of Corr., 934 P.2d 801,
804 (Ariz. App. 1997)).
DCS contends, and Plaintiff does not dispute, that the juvenile court’s severance
order is a final judgment on the merits and involves the same parties and subject-matter
here. The parties argue whether the cause of action here is the same as the one presented
before the juvenile court and, later, the state appellate courts.
On this point, it is undisputed that the juvenile court received progress reports and
testimony about DCS’s recommended services and Plaintiff’s compliance with those
recommendations. (Doc. 107 ¶ 32, Doc. 140 ¶ 32.) In its severance order dated July 30,
2019, the juvenile court explicitly reviewed the services provided to Plaintiff from DCS
and determined those efforts were reasonable and diligent. (Doc. 117-1 at 17–19). The state
appellate court affirmed that substantial evidence existed to support the juvenile court’s
conclusion. Jessica P., 471 P.3d at 680.
Plaintiff argues that her instant claim is not the same cause of action tried before the
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juvenile court because “the gravamen here is concealed misconduct—ex parte coordination
and suppression of a forensic evaluation—that was not disclosed to the juvenile court and
was not discoverable to Plaintiff during the dependency proceedings.” (Doc. 139 at 16.)
The Court is not persuaded. Plaintiff’s instant claim asserts a constitutional right to the
care, custody and management of her child, which imposes an obligation on DCS to make
reasonable and diligent efforts to preserve the family. (FAC ¶¶ 259–263.) Mary Ellen C.,
971 P.2d at 1053 (defined DCS’s obligation “on constitutional grounds”); Donald W., 444
P.3d at 271. Whether DCS failed to carry out that obligation—thereby violating Plaintiff’s
constitutional right—was precisely the question that the juvenile court was tasked to
answer. Any contention that DCS failed to fulfil its obligation to Plaintiff would have been
relevant, and perhaps dispositive, to the juvenile court’s order. Indeed, the state appellate
court directly observed that “any claim that DCS is failing to provide appropriate
reunification services must be raised in the juvenile court or the issue is waived.” Jessica
P., 471 P.3d at 680 (citation omitted). In other words, the instant claim and the severance
action both turn on whether DCS failed to provide reasonable and diligent efforts to
preserve Plaintiff’s family, and evidence of that failure would be the same no matter if it
was presented here or to the juvenile court.
Plaintiff next argues that evidence of “ex parte coordination and suppression of a
forensic evaluation” was discovered after the severance action, so her instant claim could
not have been properly litigated before the juvenile court. (Doc. 139 at 15–16.) The Court
presumes Plaintiff refers to the communications between the case managers and Dr. Thal
and resulting alterations to Dr. Thal’s first report or Plaintiff’s mother’s evaluation.
Assuming that evidence of those communications and alterations would be relevant to the
reasonable-efforts analysis, DCS replies—and the Court agrees—that the record clearly
shows that such evidence was available to all parties in the severance action and, in fact,
was presented to the juvenile court by way of testimony and cross-examination. (Doc. 152
at 3–4; see also Doc. 107 ¶¶ 47–48; Doc. 140 ¶¶ 47–48.) If Plaintiff meant to refer to Ms.
Hoff’s failure to assign a family reunification team, she likewise fails to explain how that
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evidence did not exist at the time of the severance hearings. In fact, Plaintiff’s own
production of the parent aide’s recommendation shows the report was dated February 28,
2018—almost one year before the severance trial began. (Doc. 122 ¶ 35; Doc. 124-15.)
Plaintiff identifies no other additional evidence that would be necessary to prevail
on the instant claim than that needed to challenge the reasonableness of DCS’s preservation
efforts before the juvenile court. Accordingly, the elements of claim preclusion are met
here and the Court grants summary judgment in favor of DCS as to Count Six.
IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment (Doc. 121).
IT IS FURTHER ORDERED granting DCS Defendants’ Motion for Summary
Judgment (Doc. 106)
IT IS FURTHER ORDERED granting Defendant James Thal’s Motion for
Summary Judgment (Doc. 113).
IT IS FURTHER ORDERED denying as moot DCS Defendants’ Motion to
Exclude Timothy Turner (Doc. 109).
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in
favor of Defendants and close this case.
Dated this 14th day of August, 2026.

Honorable John J. Tuchi
United States District Judge
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