Francisco v. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FRANCISCO V., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.V., D.V., E.V.,
Appellees.
No. 1 CA-JV 18-0013
FILED 7-24-2018
Appeal from the Superior Court in Maricopa County
No. JD31644
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Thomas A. Vierling, Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra A. Nahigian
Counsel for Appellee Department of Child Safety
FRANCISCO V. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge James B. Morse Jr. joined.
B E E N E, Judge:
¶1 Francisco V. (“Father”) appeals the termination of his parental
rights to his three children, A.V., D.V., and E.V. (collectively “the
Children”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Margarita V. (“Mother”) are the biological parents
of the Children. E.V. was born September 2015 with no health problems or
abnormalities. E.V. then developed colic and cried often. On November 3,
2015, after a particularly intense bout of crying, Mother took E.V. to the
doctor. The doctor sent E.V. to Phoenix Children’s Hospital via ambulance
after noticing blood coming from E.V.’s nose and mouth and bruises on her
chest.
¶3 An examination at the hospital revealed that E.V. had 23 rib
fractures in various states of healing and a broken leg. E.V. also had bruises
across her body that resembled finger marks from blows or strikes. After
ruling out potential causes of brittle bones and easy bruising, the hospital
team suspected abuse and notified the police.
¶4 When interviewed by a detective, Father admitted that he
squeezed E.V. around the chest with both hands. Another witness told the
detective that he saw Father grab E.V. hard and hurt her when she was
crying.
¶5 In November 2015, the Department of Child Services (“DCS”)
removed the Children from the home and filed a dependency petition for
the Children as to Mother and Father. The Children were found dependent
as to both Mother and Father in May 2016. DCS then moved to sever the
parental rights of Mother and Father in June 2016 on the grounds of abuse
under Arizona Revised Statute (“A.R.S.”) section 8-533(B)(2).
¶6 At the termination hearing, Father testified that the detective
misinterpreted his statements about squeezing E.V. He could not explain
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FRANCISCO V. v. DCS, et al.
Decision of the Court
E.V.’s injuries but opined that he believed E.V. did not receive proper
medical care to explore underlying diseases. Pathologist Dr. Richard
Trepeta testified that E.V.’s bones may have been brittle from an
unidentified disease, and the team at Phoenix Children’s Hospital should
have performed a bone biopsy on E.V. He conceded, however, that E.V.’s
injuries could have been caused by non-accidental trauma.
¶7 Roger Blevins, a nurse practitioner who examined E.V.,
testified that performing a bone biopsy was not medically necessary
because there was no indication from other tests that she had an underlying
disease, and a bone biopsy would have exacerbated her injuries. He
testified that the hospital team ruled out other potential causes of E.V.’s
injuries and concluded that they were caused by abuse.
¶8 In December 2017, the superior court terminated Father’s
rights to the Children on grounds of abuse and found severance would be
in the Children’s best interests.1 Father timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -
2101(A)(1).
DISCUSSION
¶9 The right to parent one’s child is fundamental but not
absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior
court may terminate parental rights if it finds, “by clear and convincing
evidence, at least one of the statutory grounds set out in section 8-533,” and
by a preponderance of the evidence that termination is in the best interests
of the child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12
(2000); Kent K., 210 Ariz. at 284, ¶ 22.
¶10 “[W]e view the evidence and reasonable inferences to be
drawn from it in the light most favorable to sustaining the court’s decision,”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009), and
we will not reverse unless “there is no reasonable evidence to support” the
order, Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). Because the superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings,” we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
1 The superior court found that DCS failed to prove the termination
ground alleged as to Mother.
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FRANCISCO V. v. DCS, et al.
Decision of the Court
¶11 Father does not challenge the superior court’s determination
that an adequate statutory ground for termination existed regarding the
Children. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14
n.6 (App. 2011) (failure to develop argument on appeal results in
abandonment and waiver of issue). Instead, he contends the court erred in
finding that termination was in the Children’s best interests. “Whether
severance is in the child’s best interests is a question of fact for the juvenile
court to determine,” and we draw all reasonable inferences in favor of the
superior court’s findings. Jesus M., 203 Ariz. at 282, ¶ 13.
¶12 “[T]he best interests inquiry focuses primarily upon the
interests of the child, as distinct from those of the parent.” Kent K., 210 Ariz.
at 287, ¶ 37. Best interests is a fact-specific, case-by-case determination in
which the court balances a parent’s interest in maintaining a relationship
with his or her child (diluted by the existence of a severance ground) against
the child’s interest in a safe and stable home life. See Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 4, ¶ 15 (2016); Kent K., 210 Ariz. at 286, ¶ 35. A severance
must either affirmatively benefit the child or eliminate a detriment of the
parental relationship. Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98,
¶ 8 (App. 2016).
¶13 The superior court found that severance would benefit the
Children and was in their best interests because it would eliminate the risk
of continued abuse from Father. Father does not challenge the court’s
findings that he willfully abused E.V. See Britz v. Kinsvater, 87 Ariz. 385, 388
(1960) (finding that when the trial court’s findings are not challenged on
appeal, we “may assume that their accuracy is conceded”). Severance
would certainly affirmatively benefit the Children as they would not be
subjected to Father’s abuse if left alone with him while in his custody.
Dominique M., 240 Ariz. at 98, ¶ 8.
¶14 Additionally, the superior court found that termination was
in the Children’s best interests because their current placement was
meeting their needs and they were adoptable. Reasonable evidence
supports these conclusions. A DCS case manager testified that the Children
are placed with their paternal aunt and uncle and the placement is meeting
all of their needs. She further testified that the Children are adoptable, and
it is likely that the Department will find a placement with relatives who are
willing to adopt, if they are not returned to Mother’s care. Therefore, the
court did not err in finding that severance from Father was in the Children’s
best interests.
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FRANCISCO V. v. DCS, et al.
Decision of the Court
CONCLUSION
¶15 Accordingly, we affirm the superior court’s termination of
Father’s parental rights to the Children pursuant to A.R.S. § 8-533(B)(2).
AMY M. WOOD • Clerk of the Court
FILED: AA
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