Nichole W., Jose v. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NICHOLE W., JOSE V., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, I.V., M.V., Appellees.
No. 1 CA-JV 20-0340
FILED 8-24-2021
Appeal from the Superior Court in Coconino County
No. S0300JD201900022
The Honorable Angela R. Kircher, Judge Pro Tempore
AFFIRMED
COUNSEL
Antol & Sherman, P.C., Flagstaff
By Neil E. Sherman
Counsel for Appellant Nichole W.
Jose V., Apache Junction
Appellant
Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
NICHOLE W., JOSE V. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.
G A S S, Judge:
¶1 Mother, Nichole W., and father, Jose V., appeal a superior
court order terminating their parental rights to M.V. and I.V. Because the
superior court’s findings are sufficient and supported by reasonable
evidence, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
affirming the superior court’s order. Ariz. Dep’t of Econ. Sec. v. Matthew L.,
223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶3 Police arrested mother for disorderly conduct. One of
mother’s children, not a party to this case, told police mother kicked M.V.’s
elbow two weeks earlier. The police called the Department of Child Safety
(DCS) to the scene after learning the children were without parental
supervision. DCS could not locate father so DCS placed M.V. and I.V. with
an adult half-brother.
¶4 M.V. told DCS she was still sore from when mother kicked
her elbow. In a later DCS interview, M.V. again reported soreness from
mother’s kick. M.V. also said mother hit her on her backside, leaving her
bruised.
¶5 At DCS’s request, La Frontera, an outpatient mental-health
treatment center, conducted rapid response clinical diagnostics with the
children. M.V. told La Frontera mother kicked I.V. off a chair in 2018, which
caused bruising to I.V.’s shin. Both children said mother slapped, kicked,
and bit them. La Frontera forwarded this information to DCS.
¶6 DCS also reported the children “do not have a relationship
with their father,” and father had not seen the children “in years.”
¶7 DCS filed a dependency petition alleging M.V. and I.V.
dependent as to mother based on neglect and abuse, and dependent as to
father based on neglect by abandonment. The superior court found M.V.
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Decision of the Court
and I.V. dependent as to both mother and father and adopted a case plan of
reunification. The superior court later adopted a concurrent case plan of
reunification and severance/adoption. Ultimately, DCS moved to
terminate mother’s and father’s parental rights.
¶8 The superior court held a contested hearing. Two DCS case
managers and father testified. The court heard testimony on mother’s
rehabilitation efforts. The court also heard testimony about the last time
father visited the children and the status of the relationship between father
and the children.
¶9 The superior court found “[m]other’s abuse of alcohol became
a daily occurrence and often resulted in her verbally and physically abusing
the children.” The superior court also found father neither supported, had
regular contact, nor had a relationship with the children. The superior court
terminated mother’s parental rights on the ground of abuse and terminated
father’s parental rights on the ground of abandonment. The court also
found termination of parental rights was in the children’s best interests.
¶10 Mother and father timely appealed. This court has jurisdiction
under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-
235.A, 12-120.21.A.1, and 12-2101.A.1.
ANALYSIS
¶11 We begin with mother. Because she has not challenged the
superior court’s best-interest findings, she has “abandoned and waived”
such a challenge. See Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 5
(App. 2017). Instead, mother raises two challenges: (1) the superior court’s
findings were insufficient; and (2) insufficient evidence supported the
superior court’s findings of abuse. For these reasons, she argues the
superior court should not have terminated her parental rights. We disagree.
¶12 This court will not reweigh evidence because the superior
court is in “the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts.” Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep’t
of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)).
I. The superior court’s order contained sufficient findings of abuse.
¶13 “[F]indings of fact and conclusions of law should be
sufficiently specific to enable the appellate court to provide effective
review.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 241, ¶ 25 (App.
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Decision of the Court
2012). The more complicated the legal issue, the more detailed the findings
must be. Id. at ¶ 26.
¶14 In Ruben M., the superior court terminated father’s rights
based on abuse. Id. at 238, ¶ 9. This court said because the abuse ground
was “simple and straightforward,” “more summary findings [were]
sufficient.” Id. at 241, ¶ 27. There, the superior court found father
“repeatedly, willfully abused his children.” Id. That finding was sufficient
because A.R.S. § 8-533 merely required the father to have “willfully abused”
his children. Id. at ¶ 27–28.
¶15 As in Ruben M., we face a single statutory ground for
termination based on abuse under § 8-533, so “more summary findings”
may suffice. See id. at ¶ 27. Here, the superior court’s findings summarized
what was in the record, saying “Mother’s abuse of alcohol became a daily
occurrence and often resulted in her verbally and physically abusing the
children.” So, as in Ruben M., a more precise finding is unnecessary. See id.
Accordingly, the superior court made sufficient findings of fact.
II. Reasonable evidence supports the superior court’s conclusion
mother abused M.V. and I.V.
¶16 The State may terminate parental rights if it proves a ground
for termination under § 8-533 by clear and convincing evidence. See Kent K.
v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Here, mother’s parental rights
were terminated because of abuse. Under § 8-533.B.2, the superior court
may terminate parental rights if the parent “willfully abused” a child.
Abuse means “infliction or allowing of physical injury, impairment of bodily
function or disfigurement.” A.R.S. § 8-201(2) (emphasis added).
¶17 Mother urges us to adopt Title 13’s definition of “physical
injury.” See A.R.S. § 13-3623.F.4. We need not resolve the issue because even
under the definition mother urges us to adopt, which would presumably
be to her advantage, reasonable evidence established mother abused M.V.
and I.V. by physically injuring them.
¶18 Under § 13-3623.F.4, physical injury “includes any skin
bruising.” I.V.’s reported bruising after mother kicked her off the chair fits
“skin bruising” under § 13-3626.F.4’s definition of physical injury.
Similarly, mother spanking M.V. to the point of bruising is further evidence
of “skin bruising.” See id. Mother argues the superior court relied on
“random stories,” in finding abuse, but we must view the evidence,
including these “random stories,” and reasonable inferences drawn from it
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Decision of the Court
in the light most favorable to sustaining the superior court’s decision. See
Jordan C., 223 Ariz. at 93, ¶ 18.
¶19 Further, § 13-3623.F.4 uses the word “includes” followed by a
list of injuries. “Includes” is a term of enlargement. See E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 59, ¶ 12 (App. 2015) (the term “includes” did not limit
abuse under § 8-533.B.2 to only the enumerated criteria following the word
“includes”); see also State v. Witwer, 175 Ariz. 305, 308 (App. 1993) (“The
word ‘includes’ [in the definition] is a term of enlargement which conveys
the idea that conduct which does not fall within the listed behavior may
also violate the statute.”). In short, physical injury under § 13-3623.F.4 is not
limited to the enumerated list. Mother, therefore, also physically injured
M.V. by kicking her and leaving her with a persistently sore elbow.
¶20 Because reasonable evidence supports the superior court’s
finding, we must affirm. See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
287, ¶ 16 (App. 2016).
¶21 Lastly, mother relies on Alma S. v. Department of Child Safety to
argue the superior court should have given her rehabilitation efforts greater
weight. See 245 Ariz. 146, 151, ¶ 15 (2018). Her reliance on Alma S. is
misguided. Alma S. is limited to the best-interest inquiry, which mother
waived. See id. Further, the superior court had evidence of those efforts,
including diluted drug tests, missed drug testing, and non-attendance of
child family team meetings. We do not reweigh such evidence. See Jordan
C., 223 Ariz. at 93, ¶ 18.
III. Father asks us to reweigh the evidence, which we decline to do.
¶22 Father raises grievances but does not develop supporting
arguments or show where in the record he properly objected. Father,
therefore, waived the arguments. See In re Aubuchon, 233 Ariz. 62, 64–65, ¶
6 (2013) (“arguments not supported by adequate explanation, citations to
the record, or authority” are waived). At best, father asks us to reweigh
evidence, which we decline to do. See Jordan C., 223 Ariz. at 93, ¶ 18.
¶23 In short, reasonable evidence established father did not have
a normal relationship with M.V. and I.V. Father had not provided support
for his children despite his alleged effort “to get in touch with the state and
pay child support for 8 years.” Father provided no documentation or other
evidence of his contact with M.V. and I.V. before the dependency. The
superior court, therefore, had reasonable evidence to find father abandoned
the children. See A.R.S. §§ 8-531(1), -533.B.2.
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NICHOLE W., JOSE V. v. DCS, et al.
Decision of the Court
CONCLUSION
¶24 We affirm the superior court’s order terminating mother’s
and father’s parental rights as to M.V. and I.V.
AMY M. WOOD • Clerk of the Court
FILED: AA
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