Georgina L. v. Lynda R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GEORGINA L.,
Appellant,
v.
LYNDA R., DEPARTMENT OF CHILD SAFETY, D.L.,
Appellees.
No. 1 CA-JV 20-0309
FILED 9-28-2021
Appeal from the Superior Court in Maricopa County
Nos. JS20322, JD37715
The Honorable Lori Bustamante, Judge
AFFIRMED
COUNSEL
Woodnick Law, PLLC, Phoenix
By Gregg R. Woodnick, Markus W. Risinger
Counsel for Appellant
Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellee Lynda R.
Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee Department of Child Safety
GEORGINA L. v. LYNDA R., et al.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Georgina L. (“Mother”) appeals the termination of her
parental rights to D.L. (“Child 4”). We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Lawrence (“Father”) adopted four children in
2012, including Child 1, born in December 2006; Child 2, born in January
2006; Child 3, born in February 2005; and Child 4, born in June 2008
(collectively, the “Children”).1
¶3 In October 2018, Child 1 confided to Mother that Father had
sexually abused her, Child 2 and Child 4. Mother did not report the abuse
and continued leaving the Children alone with Father. Several months
later, in March 2019, Mother took Child 1 to meet a therapist. Child 1 told
the therapist that Father had sexually abused her, Child 2 and Child 4. The
therapist reported this abuse to DCS. Child 1 and Child 2 were taken to
ChildHelp for forensic interviews. Before the interviews, Mother warned
the siblings to be careful about what they said if they wanted to stay
together. Child 1 and Child 2 told the investigator that Father had sexually
abused them. Child 4 was not interviewed because of his intellectual
disabilities, but Child 1 reported seeing and hearing Father sexually
abusing Child 4. Mother entered a safety plan that required her to protect
the Children and separate them from Father.
¶4 In July 2019, DCS learned that Mother continued to allow
contact between Father and the Children. The juvenile court found the
Children dependent as to Mother, removed them from her care and
appointed a guardian ad litem (“GAL”).
¶5 In January 2020, however, DCS moved the juvenile court to
return Child 4 to Mother’s physical custody under Arizona Rule of Juvenile
1 Father’s parental rights have been terminated. He is not a party to
this appeal.
2
GEORGINA L. v. LYNDA R., et al.
Decision of the Court
Court Procedure 59 because Mother had made the “necessary behavioral
changes to get her children home.” The GAL opposed the motion and
petitioned to terminate Mother’s parental rights to the Children because
Mother had neglected or failed to protect them from neglect under A.R.S. §
8-533(B)(2). Additionally, the GAL alleged Mother failed to protect the
Children from Father’s willful abuse. See A.R.S. §§ 8-201(2), -533(B)(2).
¶6 After a Rule 59 evidentiary hearing in February 2020, the
juvenile court returned Child 4 to Mother, finding she had “fully and
successfully participated in the reunification services offered,” and
concluding that “regardless of what happened in the past, the risk of harm
to [Child 4] in Mother’s care at this point is small.” The court did not
address the allegations that Mother knew about yet did not stop Father’s
abuse.
¶7 In August 2020, the juvenile court held a contested severance
hearing on the GAL’s petition to terminate the parent-child relationship.
The court heard testimony from several witnesses, including Child 1, Child
2, the therapist, DCS investigator and DCS case manager.
¶8 The juvenile court terminated Mother’s parental rights to
Child 4 in September 2020, finding that Mother failed to protect the
Children from Father’s abuse under A.R.S. § 8-533(B)(2), that Mother “has
placed or will place [Child 4] at unreasonable risk of harm in the future,”
and that termination was in Child 4’s best interests. Mother timely appeals.
We have jurisdiction. See A.R.S. §§ 8-235(A), 12-120.21, and -2101(A)(1).
DISCUSSION
I. No Issue Preclusion
¶9 Mother first argues the juvenile court erred when it
terminated her parental rights to Child 4 because the court’s findings of
abuse and neglect conflicted with the court’s earlier risk-of-harm and best-
interest findings after the Rule 59 hearing.
¶10 Parental rights may be terminated if parents abuse or neglect
their child, A.R.S. § 8-533(B)(2), or if parents permit another individual to
abuse or neglect their child, Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224,
227, ¶ 13 (2020). To terminate parental rights under § 8-533(B)(2) over
“children who exhibit no evidence of neglect or abuse,” the court must find
clear and convincing evidence “during the parental unfitness inquiry . . .
that there is a risk of harm to those children.” Sandra R., 248 Ariz. at 228, ¶
17.
3
GEORGINA L. v. LYNDA R., et al.
Decision of the Court
¶11 The doctrine of issue preclusion “precludes relitigating an
issue of fact in a later case when, in a previous case, the same issue was
actually litigated, a final judgment was entered, and the party against
whom the doctrine is to be invoked had a full and fair opportunity to
litigate.” Olesen v. Daniel, 251 Ariz. 25, 30, ¶ 20 (App. 2021) (quoting Crosby-
Garbotz v. Fell, 246 Ariz. 54, 55, ¶ 14 (2019)). Whether issue preclusion
applies is reviewed de novo. Crosby-Garbotz, 246 Ariz. at 57, ¶ 9.
¶12 Issue preclusion does not apply. First, the juvenile court
expressly declined to address Father’s abuse and Mother’s failure to protect
Child 4 from Father’s abuse at the Rule 59 stage. The court addressed those
issues only after the severance hearing, finding that Father abused the
Children and Mother failed to protect them. Second, the GAL did not have
“a full and fair opportunity to litigate” the risk of harm to Child 4. Third,
even if the juvenile court found Child 4’s risk of harm in Mother’s care was
“small” in early 2020, the court heard new and different evidence at a
second evidentiary proceeding in late 2020 on whether to terminate the
parent-child relationship and Mother did not testify. Nor did the juvenile
court consider and resolve Child 4’s best interest at the Rule 59 hearing.
Rather, it found that “Rule 59(a) allows no best interests exception,” and
explained that “even if it is in a child’s best interests to remain somewhere
else, the court must order return if there is no substantial risk of harm.” The
juvenile court did not err.
II. No Procedural Error
¶13 Mother next argues the severance proceeding was an appeal
of the juvenile court’s findings from the earlier dependency proceeding.
We are not persuaded. To begin, the GAL petitioned for termination of the
parent-child relationship under § 8-533(A), which has no dependency
requirement or phase. See Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39,
43, ¶ 14 (2008). And § 8-533(A) allows any person or agency with “a
legitimate interest in the welfare of a child” to “petition for the termination
of the parent-child relationship.”
III. No Abuse of Discretion
¶14 Mother next contends the record does not support
termination. “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This
court accepts the juvenile court’s findings of fact on appeal unless “no
4
GEORGINA L. v. LYNDA R., et al.
Decision of the Court
reasonable evidence supports those findings,” and we will affirm a
severance “unless it is clearly erroneous.” Id. Although parents have a
fundamental right to raise their children, “that right is not without
limitation.” Minh T. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14. A court
may terminate a parent’s rights if one of several enumerated grounds for
termination in A.R.S. § 8-533 is proven by clear and convincing evidence.
A.R.S. § 8-537(B).
¶15 The record includes ample evidence to support the juvenile
court’s decision. The court heard testimony from Child 1 and Child 2. Both
detailed the sexual abuse they suffered at Father’s hands. Child 1 testified
she saw Father sexually abusing Child 4. Child 1 also described Mother’s
inaction after Child 1 alerted her about the sexual abuse. Indeed, Mother
continued to leave the Children with Father. And after DCS was alerted,
Mother warned the Children to be careful about what they said because
they may be “split up.” The court also heard that Mother believed the
Children were lying and that she continued allowing contact between
Father and the Children after DCS directed her to prevent such contact. The
juvenile court did not abuse its discretion.
IV. Negative Inference
¶16 Mother challenges the juvenile court’s negative inferences
from her failure to testify. We find no error.
A juvenile court’s drawing a negative inference when a parent
fails to testify at a severance hearing is particularly
appropriate. A central issue at such hearings is whether
severance of parental rights is in the child’s best interests. See
A.R.S. § 8-533(B). The answer to that question hinges to a
large degree on the parent’s present ability to successfully and
safely parent the child.
Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, 117, ¶ 6 (App. 2015) (adding
that there is “little benefit in adopting an approach that would permit a
parent to forgo, without consequence, testifying about his or her ability to
parent or about other circumstances relevant to the court’s determination”).
V. Factual Nexus
¶17 A juvenile court that “finds a parent unfit for neglecting or
willfully abusing a child . . . may also find the parent unfit as to that parent’s
non-abused children” if “there is clear and convincing evidence that
5
GEORGINA L. v. LYNDA R., et al.
Decision of the Court
previous abuse of a child supports a finding of risk of harm to non-abused
children.” Sandra R., 248 Ariz. at 225, 230, ¶¶ 1, 26.
¶18 Mother first contends the record shows no factual nexus
between Child 4 and the prior abuse and neglect of Child 1 and Child 2
because there “was no evidence that the father abused [Child 4].” That is
incorrect. Child 1 testified that she saw Father “sexually touch[ing]” Child
4, which spurred her to report Father’s abuse in the first instance.
¶19 Mother also argues “the likelihood of [Child 4] being abused
is entirely mitigated” because Mother cut ties with Father and participated
in services to improve her protective capabilities. But the juvenile court
heard and rejected this argument based on reasonable evidence. See Jesus
M., 203 Ariz. at 280, ¶ 4.
CONCLUSION
¶20 We affirm the juvenile court’s termination of Mother’s
parental rights to Child 4.
AMY M. WOOD • Clerk of the Court
FILED: AA
6