Steven H., Tatum S. v. Dcs, M.H. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STEVEN H., TATUM S., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, M.H., Appellees.
No. 1 CA-JV 21-0193
FILED 12-2-2021
Appeal from the Superior Court in Maricopa County
No. JD37469, JS20502
The Honorable Todd F. Lang, Judge
AFFIRMED
COUNSEL
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant Steven H.
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant Tatum S.
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
STEVEN H., TATUM S. v. DCS, M.H.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Steven H. (“Father”) and Tatum S. (“Mother”) (collectively
“Parents”) appeal the juvenile court’s order terminating their parental
rights to M.H., born October 2016. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Parents are M.H.’s biological parents. Parents’ other child,
S.H., was about three months old when she died after a “near drowning”
incident in May 2019. As a result, the Department of Child Safety (“DCS”)
took temporary custody of M.H. and initiated dependency proceedings.
DCS alleged Parents either abused S.H. or failed to protect her from abuse,
causing her death. Parents contested the allegations at the preliminary
protective hearing, but the court kept M.H. in DCS’s custody, limited
Mother’s visitation rights, and prevented Father from seeing M.H.
¶3 DCS petitioned to terminate Parents’ rights to M.H on three
grounds: (1) nine-month time in care; (2) Parents substantially neglected or
willfully refused to remedy the circumstances that caused M.H. to be in
DCS’s care; and (3) Parents willfully abused S.H. or failed to protect S.H.
from willful abuse. The juvenile court consolidated the dependency and
termination matters and held an eleven-day joint dependency and
termination hearing, which concluded with written closing arguments in
March 2021.
¶4 At the hearing, the testimony focused on the circumstances
surrounding S.H.’s death, and the juvenile court made detailed factual
findings about the event. Father testified that on the morning of S.H.’s near
drowning, Father was in the backyard alone with both children. He said he
was holding S.H. when M.H. grabbed or pushed the back of his legs,
causing him to trip and fall forward into the pool. Father said S.H. landed
in the pool first and he landed on top of her. Father claimed he then reached
down underwater and grabbed S.H. by her legs, held her above his head,
and threw her “a few feet” out of the pool and onto the concrete deck.
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Father said he did not see her land and she was underwater for only a
matter of seconds.
¶5 Father testified that he exited the pool and began
administering chest compressions and small breaths after noticing S.H.
struggled to breathe. Father claimed that after “three or four” breaths, S.H.
coughed up a “bit” of water before taking her to the shower to warm her
“cool” and “pale” skin. Father next called Mother, who raced home, and
then Parents called 9-1-1. Paramedics arrived within three minutes and
began treating S.H. for drowning while transporting her to the hospital.
¶6 S.H.’s doctors became suspicious because her injuries were
inconsistent with Father’s story and requested the hospital’s child
protection team examine S.H. Parents did not give the hospital’s child
protection team a plausible explanation for S.H.’s injuries. Parents
suggested S.H. could have sustained some of her injuries one month earlier,
when M.H. reportedly flipped S.H. off her pillow and onto the mattress.
S.H. died two days after arriving at the hospital.
¶7 DCS and Parents presented competing medical experts.
DCS’s experts testified about the cause and extent of S.H.’s injuries, stating
the most likely cause was nonaccidental trauma. Parents’ experts testified
S.H.’s condition did not result from abuse, but rather the catastrophic
effects of a near-drowning incident on a child who either had unusually
fragile bones or a similar undiagnosed disorder.
¶8 Dr. Raul Galvez, a pediatric intensive care physician, testified
that S.H.’s chest x-ray revealed a healing fracture on one of her ribs. Galvez
explained that a CT scan of S.H.’s head revealed additional injuries: a
subdural hematoma, a skull fracture, and brain swelling. The Chief Medical
Officer for the hospital, Dr. Jennifer Matchey, testified that the fractures and
subdural hematoma were an acceleration/deceleration injury, an injury
often associated with shaken baby syndrome.
¶9 Dr. Aaron Greeley, a radiologist, testified that the healing rib
fracture appeared to be a re-fracture of a prior injury and that S.H. had four
rib fractures that had not begun healing. Greeley also testified the healing
fracture occurred two to three weeks earlier and the other fractures
occurred less than two weeks before her death, suggesting a series of
injuries during S.H.’s short life. Greeley also found metaphyseal fractures
or lesions on S.H.’s tibia and femurs, which showed signs of healing. She
testified that these lesions are most seen in nonaccidental trauma incidents.
A pediatric nurse practitioner, who served on the child protection team,
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Decision of the Court
testified that the healing fractures could not have been caused by Parents’
version of events.
¶10 The juvenile court found the evidence established that some
of S.H.’s injuries occurred before her near drowning. The court found
Parents’ experts unpersuasive and noted they “appear[ed] to be more
interested in an intellectual debate” on abusive head trauma than
evaluating the circumstances of S.H.’s death.
¶11 Based on the timing of the rib injuries and the testimony of
the medical experts, the juvenile court found it “quite unlikely that all of
[S.H.’s] rib injuries were caused by rescue efforts (whether CPR, back
slapping, or other efforts)” and that one or both of her parents caused S.H.’s
physical injuries. The court then terminated Parents’ rights on two grounds:
abuse and neglect under A.R.S. § 8-533(B)(2), and nine months’ time in care
under § 8-533(B)(8)(a). The court also found termination was in M.H.’s best
interests because termination would remove the possibility of future abuse
and a relative adoption was available with his current placement, at which
he was currently “thriving.”
¶12 Parents timely appealed from the dependency and
termination order. We have jurisdiction under A.R.S. §§ 8-235(A) and 12-
120.21(A)(1).
DISCUSSION
¶13 “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State
support its allegations by at least clear and convincing evidence.” Santosky
v. Kramer, 455 U.S. 745, 747–48 (1982). “[S]uch a standard adequately
conveys to the factfinder the level of subjective certainty about his factual
conclusions necessary to satisfy due process.” Id. at 769. Thus, to terminate
the parent-child relationship, the juvenile court must find parental
unfitness based on at least one statutory ground by clear and convincing
evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
¶14 We review the termination of parental rights for an abuse of
discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). This court will uphold the juvenile court’s findings of fact “if
supported by adequate evidence in the record.” Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App. 2007) (cleaned up). As the trier of
fact, the juvenile court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
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facts.” Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 269, ¶ 13 (App. 2014)
(cleaned up). Accordingly, we will not reweigh the evidence. Id.I. Statutory Grounds
¶15 The juvenile court may terminate parental rights when a
parent “has neglected or wilfully abused a child,” including “situations in
which the parent knew or reasonably should have known that [another]
person was abusing or neglecting a child.” A.R.S. § 8-533(B)(2). Neglect
includes a parent’s “inability or unwillingness . . . to provide [a] child with
supervision . . . or medical care if that inability or unwillingness causes
unreasonable risk of harm to the child’s health or welfare.” A.R.S. § 8-
201(25)(a). Abuse includes “the infliction or allowing of physical injury. . .
caused by the acts or omissions of an individual who has the care, custody
and control of a child.” A.R.S. § 8-201(2).
¶16 The juvenile court need not definitively decide which of two
parents physically abused a child when the evidence shows that “each
parent either abused [the child], knew that [the child] had been abused, or
reasonably should have known that the other parent abused [the child].”
See Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 231, ¶ 29 (2020). The court
may further “extrapolate” a parent’s unfitness and terminate his or her
parental rights to a non-abused child if there is “a risk of harm” to the non-
abused child. Id. at 228–30, ¶¶ 17, 24–27. In evaluating the risk of harm, we
consider the nature of the abused child’s injuries and the age and
vulnerability of the child at issue. See id. at 231, ¶ 31.
¶17 The juvenile court found S.H. suffered from nonaccidental
trauma and Mother, Father, or both intentionally abused S.H. or knew or
should have known she was being abused. The court heard testimony that
S.H. suffered multiple injuries at various times, that Father’s story did not
account for her injuries, that the pattern of injuries was specific to abusive
head trauma, and that S.H. did not have a bone abnormality that would
account for her fractures. This evidence supports the court’s conclusion that
S.H. suffered abuse.
¶18 The juvenile court noted that Mother and Father remained
committed to one another, and even got engaged after S.H.’s death. And
both testified they thought the other was a good parent. The court found it
would harm M.H. to live with Parents because the non-abusing parent
either did not recognize the abuse or is protecting the abuser. The court thus
concluded that S.H.’s death, along with Parents’ unwillingness to protect
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M.H. from future abuse, established a severe risk of abuse to M.H, a four-
year-old vulnerable child.
¶19 Father argues on appeal that because the nurse practitioner
was not a medical doctor, the juvenile court committed fundamental error
by relying on his testimony. If an expert witness meets the liberal standards
for minimum qualifications, his credentials or level of expertise go to
credibility and weight rather than admissibility. State v. Delgado, 232 Ariz.
182, 186, ¶ 12 (App. 2013). Here, the witness had thirty-four years’
experience in child abuse pediatrics and a master’s degree in child
maltreatment, completed more than 10,000 clinical evaluations, and served
as a professor at a medical school teaching child abuse pediatrics. In short,
the witness met the minimum qualifications standard, and we will not
second-guess the juvenile court’s reliance on the testimony as credible.
¶20 Parents also argue that reasonable evidence did not support
the juvenile court’s abuse finding because Parents’ experts provided
differing theories of the sources of S.H.’s injuries. But the court found
Parents’ experts unpersuasive. Parents ask us to reweigh the evidence and
redetermine the credibility of witnesses, something we will not do. See
Oscar F., 235 Ariz. at 269, ¶ 13.
¶21 The record supports the juvenile court’s finding that Parents
abused S.H. and M.H. remained at risk of harm if left in their care. The court
did not abuse its discretion by terminating Father and Mother’s parental
rights based on the abuse ground. See A.R.S. § 8-533(B)(2). Given this
determination, we need not address the other statutory ground. See Michael
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000).
II. Best Interests
¶22 Once the juvenile court finds that clear and convincing
evidence establishes a statutory ground for termination of parental rights,
it must determine whether a preponderance of the evidence establishes that
termination is in the child’s best interests. Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 149–50, ¶ 8 (2018). “The child’s interest in stability and security
must be the court’s primary concern.” Id. at 150, ¶ 12 (cleaned up). Mother
contends it was not in M.H.’s best interests to lose his younger sister and
then permanently lose both of his parents. Mother points to evidence that
M.H.’s first foster placement may have abused him as proof he would be
safer with Parents. The court found M.H. is “thriving” with his current
placement, the mother of Father’s sister-in-law, who intends to adopt him.
The court properly considered the immediate availability of an adoptive
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placement in its analysis. Audra T v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376,
377, ¶ 5 (App. 1998).
¶23 The juvenile court also found it would harm M.H. to be placed
with Parents because Mother and/or Father engaged in child abuse
resulting in S.H.’s death, yet both parents testified they do not consider the
other to be a safety threat. Mother again asks us to reweigh the evidence
and step into the role of fact finder, something we will not do. See Oscar F.,
235 Ariz. at 269, ¶ 13. The record supports the court’s best interests
conclusion.
CONCLUSION
¶24 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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