Shea G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHEA G., TIFFANI D., AARON D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, M.G., S.G., E.D., Appellees.
No. 1 CA-JV 19-0337
FILED 9-29-2020
Appeal from the Superior Court in Maricopa County
No. JD36277
JS19773
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, Mesa
By H. Clark Jones
Counsel for Appellant Shea G.
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Aaron D.
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant Tiffani D.
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.
H O W E, Judge:
¶1 Shea G. (“Father G.”), Aaron D. (“Father D.”), and Tiffani D.
(“Mother”) appeal the juvenile court’s order terminating their parental
rights to E.D., M.G., and S.G. and the court’s order finding the children
dependent.1 For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father G. and Mother met in New Mexico in 2010, married in
2012, and had two children together, M.G., born in March 2011, and S.G.,
born in December 2012. They divorced in 2014, and shared joint custody of
the children. Father G. was arrested in 2014 for failing to pay child support
and his paycheck was subsequently garnished for child support. After that,
Father G. visited the children inconsistently and missed more of his
parenting time than he exercised. And after March 2015, he stopped seeing
the children altogether. He tried calling Mother “several times a week for a
couple weeks” in March 2015 before stopping. Because his calls went
straight to voicemail, he assumed Mother had blocked him on her phone.
She also blocked him on one of her social media accounts.
¶3 In May 2015, the New Mexico family court ordered that the
parties communicate using Family Wizard, a $100 communication
application. Father G. never purchased the application, stating that he could
not afford it. He did not ask any family members or friends for money to
1 Because the critical issue is whether reasonable evidence supported
the juvenile court’s order terminating Father G.’s, Father D.’s, and Mother’s
parental rights, their arguments challenging the court’s dependency
findings are moot. See Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 512, 515
¶ 10 (App. 2000) (noting that after a severance has been entered, an appeal
from a dependency finding is moot).
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help pay for the application. He also knew where Mother attended church
in New Mexico and never contacted her there. He did not call the police to
report that Mother was violating their parenting plan. And he never
notified the family court that he was not seeing his children, claiming that
he could not afford the filing fees. He also never attempted to have the fees
waived. He also did not send his children any gifts, cards, or letters in 2016
or 2017.
¶4 Meanwhile, Mother met Father D. in October or November
2014 while living in New Mexico, married him in April 2015, and moved
with him to Arizona in February 2017. Mother and Father D. had one child
together, E.D., born in December 2015. Father G. later moved to Arizona in
March 2017. He worked at a grocery store and made $1,200 a month after
taxes and child support. He lived with his parents for a period, paid no rent,
and had no other expenses. He still did not attempt to purchase the Family
Wizard application, nor did he attempt to contact the New Mexico family
court to see his children.
¶5 Mother enrolled E.D. at a daycare. She dropped E.D. off at
daycare on August 6, 2018, where she was placed in the two-year-old’s
room. The daycare employees assigned to that room took the children to
the bathroom or checked their diapers every hour, keeping a detailed
bathroom log. E.D. had no injuries or bleeding while she was at the daycare
that day. Father D. picked up E.D. from daycare at 6:00 p.m., took her to
M.G. and S.G.’s school for meet-the-teacher night, took her to pick up food,
and then took her home. E.D. was exclusively in Father D.’s and Mother’s
care after she left the daycare.
¶6 On August 7, 2018, at 7:00 a.m. Mother dropped off E.D. at
daycare. Emily Peshlakai was one of two teachers supervising the children
in the two-year-old’s room. Around 8:00 a.m., Peshlakai took E.D. to the
bathroom. E.D. did not have to go, so she resumed playing with the other
children.
¶7 At 9:00 a.m., when Peshlakai started changing E.D.’s diaper,
she noticed that E.D. was bleeding from her vaginal area. The assistant
director and director went to the changing table and saw blood clots coming
from E.D.’s vagina. While Peshlakai finished changing E.D.’s diaper, the
daycare director called E.D.’s parents who sent E.D.’s maternal
grandmother, Stephanie Swan, to pick her up. Swan initially took E.D. to a
nearby hospital and Father D. met her there. The hospital recommended
that E.D. be taken to a children’s hospital, so Father D. drove her to the
children’s hospital and Mother met them there.
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¶8 When Father D., Mother, and E.D. arrived at the children’s
hospital, the emergency room doctor determined that E.D. had a one-half
to one centimeter long injury to her vagina. A family nurse practitioner,
Haley Dietzman, asked Mother for consent to forensically examine E.D.,
and Mother agreed only after asking what would happen if she did not
consent and if she needed a lawyer. Dietzman examined E.D. under
anesthesia and found that she had a three centimeter laceration that
extended inside her vagina and required about 30 stitches to repair. When
Dr. Lisa McMahon, the pediatric surgeon who repaired E.D.’s injury, told
Mother the extent of E.D.’s injury, Mother’s initial response was “I’m going
to jail.”
¶9 The Phoenix Police Department and the Department of Child
Safety (“DCS”) investigated E.D.’s injury. DCS initially allowed the
children to continue living with Father D. and Mother. A safety plan was
put in place that required the children to be supervised by a safety monitor
when they were home with Father D. and Mother. Father D. and Mother
recommended, and DCS approved, Swan and Pascal Nemmar, the
children’s Godfather, as two of the safety monitors in August 2018.
¶10 In mid-August, Phoenix police obtained a search warrant for
Father D. and Mother’s house. When the search warrant was executed,
Nemmar was the only person at the house. Police obtained several blood
samples found in the house, including from a blood stain found on E.D.’s
bedsheet.
¶11 About a week later, DCS petitioned for dependency of all
three children and they were removed from Father D. and Mother’s house
and placed with Swan. Days later, the children were removed from Swan’s
house, placed in a foster home, and eventually placed with their paternal
grandmother in December 2018. DCS also separately petitioned to
terminate Father G.’s, Father D.’s, and Mother’s parental rights to the
children in October 2018, alleging abandonment, abuse, and failure to
protect.
¶12 DCS offered Father D. and Mother supervised visitation,
therapeutic visitation, psychological evaluations, and counseling services.
Mother participated in supervised visitation but refused to participate in
the other services. Mother participated in counseling on her own but mainly
focused on her anger toward DCS rather than the trauma her children had
suffered.
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¶13 The New Mexico Police Department contacted Phoenix police
in November 2018, because they received a tip about Nemmar in relation to
Father D. and Mother’s house. Thereafter, Nemmar was arrested in
December 2018 for sexual exploitation of a minor. He had taken nude
photos of E.D. and M.G. at his house in New Mexico and at Father D. and
Mother’s house in Arizona and some of the pictures showed that Nemmar
had engaged in sexual conduct with M.G. Some of the photos were
uploaded online using the internet at Father D. and Mother’s house on the
same day that police executed the search warrant.
¶14 The juvenile court held a 15-day combined dependency and
termination hearing between April 2019 and August 2019. Peshlakai
testified that she did not hurt E.D. when she was changing her diaper, nor
did she attempt to clean inside E.D.’s vagina. Multiple daycare employees
testified that Peshlakai was wearing latex gloves when changing E.D.’s
diaper, that she did not have long or sharp fingernails, and that they did
not see blood on her gloves.
¶15 Dietzman testified that, while the emergency room doctor
indicated that E.D.’s injury was between one-half to one centimeter in
length, he did not observe E.D. under anesthesia and did not see that the
injury extended into her vagina. She testified that the injury was caused
within the previous 48 hours by non-accidental blunt force sexual assault.
She further testified that because E.D. was changed every hour at the
daycare on August 6, 2018, and did not bleed while being wiped, the injury
occurred sometime after 6:00 p.m. that day but before 9:00 a.m. on August
7, 2018. She also testified that if the injury had occurred while E.D. was on
the changing table, daycare employees would not have seen blood clots.
She indicated that E.D. would have been in significant pain when the injury
happened and that her caregivers would have known something was
wrong. She testified lastly that Mother did not bring E.D. to her first
follow-up appointment after the surgery and she opined that if E.D. or any
of the children were returned to the environment where E.D. was injured,
they would be at an imminent risk of abuse or neglect.
¶16 Dr. McMahon also testified that if blood clots were seen, then
the injury would not have occurred at that time. She further testified that
E.D.’s injury was non-accidental because the injury occurred directly to her
vagina and “had to have had some sort of force to it.” She testified that the
injury was deep, moderately severe, and “could not have happened from a
diaper change.” She testified that E.D. would have likely screamed out in
pain when the injury happened.
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¶17 Father D. retained Dr. C. Paul Sinkhorn, an obstetrician
gynecologist surgeon, as an expert witness. He testified that E.D.’s injury
occurred between four and twelve hours from the time Dietzman
conducted the forensic examination. He testified that if her injury was
one-half to one centimeter long when she was brought to the emergency
room, her injury could have extended to three centimeters because she was
examined multiple times. He opined that E.D.’s injury was accidental and
could have been caused by cleaning her if she already had a small tear. He
testified that, in his experience, the most common cause of vaginal tearing
was an accidental cut from a fingernail. But Mother was the only person
who had long fingernails and who also had contact with E.D. when she was
injured.
¶18 During cross-examination, Dr. Sinkhorn admitted that a
fingernail would not typically break the skin of a child without also
breaking through the latex glove. He admitted that he does not specialize
in child sexual abuse and that none of the cases he has testified about in the
last four years were related to child sexual abuse. He testified that since he
completed his residency in 1982, he has not “seen very many children with
injuries” and that the last case he was involved in that dealt with child
sexual abuse was between six and eight years earlier.
¶19 Mother testified that Swan came over to her house on August
6, 2018, and left a few hours after the children went to bed. She further
testified that nothing unusual occurred that night and that none of the
children screamed or cried. She also testified that E.D. was not in any
distress and was not bleeding on the morning of August 7, 2018. She
testified that she believed Peshlakai injured E.D. at the daycare. Father D.
also believed that Peshlakai “shoved her finger or an object up inside of
[E.D.] and hurt her” at the daycare.
¶20 Swan testified that on August 6, 2018, she met Father D. and
Mother at meet-the-teacher night and then went to their house for dinner,
leaving at 9:30 p.m., after the children had went to bed. But when the police
and the Office of Child Welfare Investigations interviewed Swan, she told
both that she did not see E.D. and did not go to Father D. and Mother’s
house on August 6, 2018.
¶21 Father D. retained Mary Oakley, a psychologist to provide a
bonding assessment between him, Mother, and the children and a best
interests analysis. She testified that Father D. and Mother had “positive,
secure attachments with all three of the children” and that it could be
harmful to separate the children from their parents because separation can
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result in emotional and behavioral problems and, in some cases, cognitive
problems. She admitted that she only observed Father D. and Mother
interacting with the children for 45 minutes and did not observe them
interacting with the children individually. She admitted that her opinion
might differ if either parent had abused or failed to protect the children.
¶22 DCS’s case manager testified that the paternal grandmother,
the children’s current placement, was meeting the children’s needs and that
all three children were adoptable. She also testified that Mother violated
visitation guidelines by passing messages in a notebook to the children and
tearing out the notes when asked for them. The children also disclosed that
Father D. and Mother paid them not to tell the case manager everything.
The paternal grandmother testified that she was willing to adopt all three
children. She also stated that Father D. and Mother had told the children
that she was mean.
¶23 After the hearing, the juvenile court adjudicated all three
children dependent. The court then terminated Father G.’s parental rights
based on abandonment under A.R.S. § 8–533(B)(1). The court found that
Father G. had abandoned his children for over three years and that but for
DCS’s involvement, he would not have reentered his children’s lives.
¶24 The court also terminated Father D.’s parental rights to E.D.
and Mother’s parental rights to all three children based on abuse or neglect
under A.R.S. § 8–533(B)(2). The court found that E.D. could not have been
injured at the daycare and that no evidence suggested that Peshlakai had
anything sharp enough to cause the laceration to E.D. The court therefore
concluded that “the only plausible explanation for [E.D.’s] injuries is that
she suffered non-accidental, intentional trauma at the hands of one or both
of her parents.”
¶25 The court further found, by clear and convincing evidence,
that E.D.’s abuse also created an unreasonable risk of harm to M.G. and S.G.
The court reasoned that despite the compelling medical testimony, Father
D. and Mother remained united and did not show a willingness to leave the
other to protect the children. The court also stated that it had concerns about
their protective capacities because Mother did not initially consent to the
forensic examination and did not take E.D. to her first follow-up
appointment. The court further agreed with Dietzman’s testimony that the
children would be at risk of imminent harm in the parent’s care.
¶26 The court found that termination of their parental rights was
in the children’s best interests because the children were in an adoptive
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placement and Father D. and Mother spent their time in counseling
addressing their anger at DCS rather than how to parent E.D. and M.G. by
helping them cope with being victims of child pornography. The court also
found that Father D. and Mother had offered the children money not to
report a violation of DCS’s parenting plan. The court noted that while the
children had initially complained about their current placement, they have
not complained since and that Mother may have coached the children to
make the complaints. The court therefore found that termination of their
parental rights was in the children’s best interests. Father G., Father D., and
Mother timely appealed.
DISCUSSION
¶27 Father G., Father D., and Mother argue that the juvenile court
erred by terminating their parental rights. We review a juvenile court’s
termination order for an abuse of discretion. E.R. v. Dep’t of Child Safety, 237
Ariz. 56, 58 ¶ 9 (App. 2015). We will affirm an order terminating parental
rights so long as reasonable evidence supports the order. Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). To terminate parental
rights, a court must find by clear and convincing evidence that at least one
statutory ground in A.R.S. § 8–533 has been proven and must find by a
preponderance of the evidence that termination is in the child’s best
interests. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App.
2016). “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).
1. Termination of Father G.’s Parental Rights
¶28 Father G. argues that no reasonable evidence supports the
juvenile court’s finding that he abandoned M.G. and S.G. He contends that
he paid child support, that Mother prevented him from seeing M.G. and
S.G., and that he had been in regular contact with his children for months
by the time of trial.
¶29 The juvenile court may terminate parental rights when a
“parent has abandoned [his] child.” A.R.S. § 8–533(B)(1). “Abandonment”
means
the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment includes a judicial finding
that a parent has made only minimal efforts to support and
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communicate with the child. Failure to maintain a normal
parental relationship with the child without just cause for a
period of six months constitutes prima facie evidence of
abandonment.
A.R.S. § 8–531(1). A parent’s conduct, not a parent’s subjective intent,
determines abandonment. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249 ¶ 18 (2000). When traditional means of bonding with a child are
unavailable, a parent must act persistently to establish or maintain the
relationship and must vigorously assert his legal rights “at the first and
every opportunity.” Id. at 251 ¶ 25.
¶30 Reasonable evidence supports the termination of Father G.’s
parental rights based on abandonment. After March 2015, Father G. did not
see his children for more than three years. During that time, he did not send
his children letters, gifts, or cards. He never made any attempts to contact
Mother using the Family Wizard application, never asked to borrow money
to pay for the application, and never contacted the police or the family court
to report that Mother violated the parenting plan. Even when he moved to
Arizona and had $1,200 a month in disposable income, he never made any
attempt to assert his parental rights. And while Father G. did pay child
support, he only did so after he was arrested for failing to pay and the court
garnished the amount from his paychecks.
¶31 Relying on Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013),
Father G. argues that Mother impeded his ability to have a parent-child
relationship with his children because she blocked him on social media,
blocked or did not respond to his phone calls, and moved to Arizona
without notifying him. In Calvin B., the mother impeded the father’s ability
to see his son by reducing the number of visits between them, obtaining an
order of protection against the father, and eventually prohibiting the father
from seeing son altogether. Id. at 294–95 ¶¶ 7–8. The father attempted to
exercise his parental rights by contacting the mother’s parents, filing
various pleadings in the family court, completing a required parenting
course, and texting the mother multiple times. Id. at 294–95 ¶¶ 3, 5–6, 8. This
Court found that the father “actively sought more involvement” with his
son than the mother would allow. Id. at 297 ¶ 22.
¶32 Unlike the father in Calvin B., however, Father G. did not
vigorously assert his legal rights to maintain a relationship with his
children. While Mother did block him on one social media account and did
not answer his phone calls in March 2015, he knew where Mother went to
church in New Mexico and never contacted her there. Additionally, the
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family court in New Mexico ordered him to contact Mother through the
Family Wizard application but he never did. Even if Father G. could not
afford to buy the application initially, when he moved to Arizona in March
2017, he had $1,200 per month in disposable income and still did not buy
the application. He never called the police to report Mother’s violation of
the parenting plan and he never petitioned the New Mexico family court to
assert his parental rights or attempt to have the filing fees waived. Aside
from calling Mother several times a week for two weeks in March 2015,
Father G. did nothing to assert his legal rights for more than three years.
Because Father G. did not actively seek more involvement in his children’s
lives after March 2015, Calvin B. is inapplicable.
¶33 Father G. also argues that after DCS petitioned to terminate
his parental rights, he had “regular, substantive, meaningful, supervised
contact with his children for months and months by the time of trial.” The
presumption of abandonment is not automatically rebutted, however,
“merely by post-petition attempts to reestablish a parental relationship.”
Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 8 (1990). The juvenile
court found that Father G.’s post-petition attempts to see the children did
not “outweigh the totality of the evidence nor his lack of effort.” And, as
stated above, reasonable evidence supports the court’s abandonment
finding. Therefore, the juvenile court did not err by terminating Father G.’s
parental rights.
2. Termination of Father D.’s and Mother’s Parental Rights
¶34 Father D. and Mother argue that no reasonable evidence
supports the juvenile court’s finding that they abused E.D. Mother argues
that no reasonable evidence supports the court’s order because E.D. could
have been accidently cut when Peshlakai or someone else changed her
diaper. She contends that since a plausible alternative explanation exists,
DCS did not meet its burden of proof.
¶35 The juvenile court may terminate parental rights when a
parent “has neglected or wilfully abused a child. This abuse includes
serious physical or emotional injury or situations in which the parent knew
or reasonably should have known that a person was abusing or neglecting
a child.” A.R.S. § 8–533(B)(2).
¶36 Reasonable evidence supports the juvenile court’s finding
that Father D. and Mother abused or failed to protect E.D. from abuse.
Between August 6, 2018, and August 7, 2018, E.D. was either at the daycare
or in Father D. and Mother’s exclusive care. Based on the daycare’s
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bathroom logs, E.D. was not injured or bleeding on August 6, 2018. Dr.
McMahon and Dietzman testified that Peshlakai could not have injured
E.D. at the daycare on August 7, 2018, because E.D.’s diaper contained
blood clots. Dr. McMahon also testified that E.D.’s injury could not have
been caused by a caregiver changing her diaper.
¶37 Therefore, reasonable evidence supports the court’s finding
that the only plausible explanation for her injury was that, Father D.,
Mother, or both abused E.D. or failed to protect her from the other’s abuse
on the night of August 6, 2018, or the early morning of August 7, 2018.
Dietzman and Dr. McMahon testified that E.D. would have been in
significant pain when the injury occurred and would have screamed in
pain, thereby alerting the other parent to her injury. So, even if one parent
did not cause the injury, he or she should have known that the other parent
abused E.D. As a result, the non-abusive parent failed to protect E.D. from
the other parent’s abuse.
¶38 Father D. and Mother argue that no reasonable evidence
supports the court’s abuse finding because several discrepancies exist about
the length, cause, and timing of E.D.’s injury. They contend that the
emergency room doctor indicated that E.D.’s injury was one-half to one
centimeter while Dietzman testified the injury was three centimeters.
Mother also argues that Dr. McMahon, Dietzman, and Dr. Sinkhorn all
testified differently about the cause of E.D.’s injury.
¶39 Their arguments, however, are merely a request for this Court
to reweigh the evidence and set aside the juvenile court’s credibility
findings. Because we do not reweigh evidence and defer to the juvenile
court’s credibility findings, we need not consider their arguments. See Jesus
M., 203 Ariz. at 280, 282 ¶¶ 4, 12. Even so, Dietzman testified that the
emergency room doctor did not examine E.D. under anesthesia and would
not have seen that E.D.’s injury extended inside her vagina. And Dr.
McMahon testified that the injury was caused by both blunt force and a
sharp object, which is consistent with Dietzman’s testimony that a sharp
fingernail could have caused the injury.
¶40 Mother next argues that the juvenile court applied the wrong
standard to Dr. Sinkhorn’s testimony by asking him to phrase his answers
using the reasonable degree of medical certainty standard. Because Mother
did not object to the court’s instruction, her argument is waived. See
Henderson v. Henderson, 241 Ariz. 580, 586 ¶ 13 (App. 2017) (an argument
raised for the first time on appeal is waived). Additionally, the court
discounted Dr. Sinkhorn’s testimony based, in part, on his lack of expertise
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in the field of child sexual abuse. Nothing in the record indicates that the
phrasing of Dr. Sinkhorn’s answers contributed to the court’s rejection of
his testimony. Therefore, even if the court did err, the error was harmless.2
¶41 Father D. argues that the juvenile court improperly shifted the
burden from DCS to him because it “seemed to have held the parents
accountable for failing to present . . . a reasonable and plausible alternative
to DCS’s theory of the case.” While the court found that “the parents have
not provided any evidence to suggest what [Peshlakai’s] motivation would
be to hurt [E.D.],” the court correctly stated the burden of proof and
determined that DCS had proved that E.D. “was not injured at the daycare”
and that “one or both parents intentionally or willfully abused [E.D.].” The
record does not support Father D.’s argument that the court improperly
shifted the burden from DCS to him.
¶42 Mother argues that DCS failed to prove the existence of a
constitutional nexus between the abuse of E.D. and the risk of abuse to M.G.
and S.G. She contends that the court erroneously found clear and
convincing evidence that both M.G. and S.G. were at a risk of harm, arguing
that because M.G. and S.G. were older children, the type of injury E.D.
suffered was unlikely to occur to them. “[A] juvenile court may terminate a
parent’s rights to non-abused children under § 8–533(B)(2) only if the
extrapolation of unfitness—the risk of harm to such children—is proven by
clear and convincing evidence.” Sandra R. v. Dep’t of Child Safety, 248 Ariz.
224, 229 ¶ 24 (2020).
¶43 However, reasonable evidence supports the juvenile court’s
findings that M.G. and S.G. were at a risk of harm if they remained in
Mother’s care. Mother’s behavior both before and after E.D.’s injury
demonstrated the risk of harm. Immediately after the injury, Mother
allowed E.D. to be forensically examined only after asking “what would
happen” if she didn’t give her consent. Mother then failed to take E.D. to
her first post-surgical appointment. Mother then refused to participate in
any Department services aside from visitation. Although she
independently sought personal counseling, she focused that therapy on her
anger at DCS for removing her children, rather than on learning how to
2 Mother also argues that this Court should disregard Dr. McMahon’s
testimony that Mother said, “I’m going to jail” because Dr. McMahon’s
testimony was not credible. But we defer to the juvenile court’s credibility
determination, see Jesus M., 203 Ariz. at 280, 282 ¶¶ 4, 12, and this issue is
waived because Mother raised the argument for the first time in her reply
brief, see Romero v. Sw Ambulance, 211 Ariz. 200, 204 ¶ 7 n.3 (App. 2005).
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help E.D. cope with the trauma she suffered. Finally, Dietzman testified that
the children would be at an imminent risk of harm if they remained in her
care.
¶44 Mother also argues that she did not need to accept DCS’s
position of what happened to E.D. and that she could reasonably believe a
different explanation of E.D.’s injury. As previously stated, reasonable
evidence supports the juvenile court’s finding that the only plausible
explanation for E.D.’s injury was that Father D., Mother, or both abused
E.D. or failed to protect her from the other’s abuse. Therefore, the court did
not err by finding that Father D. and Mother remained committed to each
other and were unwilling to consider the compelling evidence of how E.D.’s
injury occurred. See Sandra R., 248 Ariz. at 231 ¶ 33 (affirming the juvenile
court’s termination order to non-abused children because, among other
things, the parents “remained committed to one another to the exclusion of
the children”).3
3. Best Interests Findings
¶45 Father D. and Mother argue that the juvenile court abused its
discretion by finding that terminating their parental rights was in E.D.’s,
M.G.’s, and S.G.’s best interests. They contend that no reasonable evidence
supports the court’s findings, citing testimony of both DCS case aide, who
did not observe any issues during their visits with the children, and Dr.
Oakley, who opined that both Father D. and Mother had a secure
attachment with the children and that separating the children from them
could be harmful. They also argue that the case aide noticed some issues
with the children’s placement and acknowledged that the children
complained about the placement.
¶46 Termination of parental rights is in a child’s best interests if
the child will benefit from the termination or will be harmed if the
relationship continues. Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179 ¶ 20 (App. 2014). In determining whether the child will benefit from
termination, relevant factors to consider include whether the current
3 When making the Sandra R. constitutional nexus finding, the juvenile
court took an extra step by including Father D. in the analysis. Because
Father D. is the biological parent to only one child, the juvenile court did
not need to make that finding and Father D. suffered no prejudice by the
court doing so.
13
SHEA G. et al. v. DCS, et al.
Decision of the Court
placement is meeting the child’s needs, an adoption plan is in place, and if
the child is adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4 ¶ 12 (2016).
¶47 Reasonable evidence supports the juvenile court’s best
interests findings that the children would benefit from the termination and
would be harmed if the relationship continued. DCS’s case manager
testified that paternal grandmother, the children’s current placement, was
meeting the children’s needs and that all three children were adoptable. She
further testified that Father D. and Mother attempted to pay the children to
withhold information from DCS and violated visitation guidelines by
secretly communicating with the children in a notebook. Additionally,
paternal grandmother testified that Father D. and Mother coached the
children, telling them that paternal grandmother was “mean.” Paternal
grandmother also testified that she was willing to adopt all three children.
¶48 Father D. and Mother both refused to participate in services
and Mother focused her personal counseling on her anger at the DCS, rather
than learning to help E.D. cope with the trauma she had suffered. And
though Dr. Oakley testified that separating the children from Father D. and
Mother could be harmful, she conceded that her opinion could change if
Father D. or Mother had abused or failed to protect the children. As a result,
reasonable evidence supports the juvenile court’s finding that termination
of Father D.’s and Mother’s parental rights were in the children’s best
interests.4
CONCLUSION
¶49 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 Father G. does not challenge the juvenile court’s best interests
findings on appeal.
14