Griselda C.-B. v. Dep't of Child Safety, H.c.-L., & L.C.
| Decision Date | 16 March 2017 |
| Docket Number | No. 2 CA-JV 2015-0009,2 CA-JV 2015-0009 |
| Parties | GRISELDA C.-B., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.C.-L., AND L.C.-L., Appellees. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
Nos. JD20140190 and S20140109
The Honorable Kathleen Quigley, Judge
AFFIRMED
Emily Danies, Tucson
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Howard and Judge Vásquez concurred.
¶1 Griselda C.-B. appeals from the juvenile court's order terminating her parental rights to her daughters H., born October 2005, and L., born September 2007, on the grounds of abuse. She argues there was insufficient evidence: (1) that she had abused A., a foster child in her care; (2) of a nexus between that abuse and the risk she would abuse her daughters; (3) that termination of her parental rights was in H.'s and L.'s best interests. She additionally contends that the state violated her due process rights by failing to provide services or pursue family reunification and that her trial counsel was ineffective. We affirm.
¶2 "On review of a termination order, we view the evidence in the light most favorable to sustaining the juvenile court's decision." Jade K. v. Loraine K., 240 Ariz. 414, ¶ 2, 380 P.3d 111, 112 (App. 2016). A. was placed with Griselda and her husband, both licensed foster parents, in December 2013, when he was about twenty months old. A. suffered from chronic asthma, and had behavioral problems as well as developmental delay in his motor skills and growth because he had been exposed to drugs during his mother's pregnancy.
¶3 In March 2014, Griselda called 9-1-1 because A. had stopped breathing while eating; at the behest of the 9-1-1 operator,Griselda performed chest compressions. A. was transported to a hospital; once he was stabilized, doctors administered a computerized tomography (CT) scan to determine whether he had suffered a brain injury from the lack of oxygen. That scan revealed that A. had suffered a subdural hematoma, a subarachnoid hemorrhage, and retinal hemorrhages in both eyes.
¶4 A. also had suffered "nerve sheath shearing," which can result from vigorous shaking, and had a small bruise on his forehead. His arm was in a cast as a result of a broken arm, which Griselda and her husband claimed had occurred when A. fell about a month previously. A. also had a broken bone in his foot, although Griselda's husband claimed A. had been dragging the foot when he was first placed in their custody. A. has a poor prognosis for recovery and will likely face serious health challenges for the rest of his life as a result of his injuries.
¶5 Hospital staff reported the cranial injuries to the Tucson Police Department and Department of Child Safety (DCS) because such injuries are often associated with abusive head trauma and Griselda and her husband had no explanation for them. DCS took temporary custody of H. and L. Each of them was subsequently interviewed. L. stated Griselda had regularly screamed at A., forced his mouth closed to prevent him from "spill[ing] dinner and breakfast," and hit him on several occasions, sometimes "all over his body." H. also stated Griselda had hit A., and described Griselda shoving food into A.'s mouth with a wet cloth and holding his mouth closed with A. on his back. H. additionally said Griselda would send L. and H. to their bedroom, instructing them to watch television while she "taught" A. Griselda claimed her daughters were lying and denied having hit A. or shoved food into his mouth.
¶6 Dr. John Rosell told police A. had suffered an injury consistent with "shaking," and the blood on the brain was fresh—indicating A. had suffered the injury within the last five to forty-eight hours. He also noted that, although Griselda and her husband had reported that A. bruised easily, he had no bruises from chest compressions, possibly indicating they were not vigorous. He also believed A.'s foot fracture had occurred within a few weeks. Apediatric critical care physician also opined that A.'s cranial injuries were likely non-accidental in light of the absence of an explanation such as a "car accident" or other "major accident."
¶7 Dr. Rachel Cramton agreed A.'s injuries were recent, stating they likely had occurred within the previous twenty-four hours. She stated A. could not have caused the injuries himself, they were not caused by oxygen deprivation, and A. had either been "shaken," "hit with something and shaken," or "thrown." Dr. Cramton also noted that nothing indicated A. had weak bones and, although she had not confirmed whether A. had a blood disorder such as hemophilia, a "spontaneous brain bleed" was extremely rare, even in children with hemophilia, and A.'s retinal hemorrhages could not be explained by hemophilia. She additionally observed that it was unlikely that a two-year-old with difficulty walking could generate enough force to fall and break his arm.
¶8 A psychologist who evaluated Griselda opined that it was unlikely Griselda would abuse her own children, but stated she should not be allowed to care for anyone else's children. He acknowledged, however, that in two evaluations, Griselda had scored high on the validity measure, indicating she had "purposely and deliberately" responded to make herself "appear extremely well adjusted and free from any emotional problems or symptoms," and that it indicated she would "under-report[] in order to make [herself] look good, and in order to deny shortcomings and inadequacies." The score also indicated "excessive effort to deny shortcomings, and other usually acceptable human levels of error."
¶9 Griselda was arrested in March 2014. The same day, DCS filed a petition alleging H. and L. were dependent as to Griselda on the basis of abuse. About two months later, DCS filed a petition seeking to terminate Griselda's parental rights on abuse grounds pursuant to A.R.S. § 8-533(B)(2). Following a contested severance hearing, the juvenile court found termination of Griselda'sparental rights was warranted based on the abuse to A.,1 noting that his "injuries were so severe it is clear he was not safe in [Griselda]'s care, and as a result neither is any child, even her own." The court also found termination was in the children's best interests because they would be at risk if placed in the care of Griselda or her husband, and because their current placement was "a prospective adoptive home" and was "meeting the needs of the [children]." This appeal followed.
¶10 In her opening brief on appeal, Griselda argued, inter alia, that her trial counsel had been ineffective. We concluded we could not "properly address" those claims "absent evidence not now in the record," and that "evidence supporting [Griselda's] claims of deficient performance and prejudice[] should first be presented to and considered by the juvenile court." We therefore stayed the appeal and ordered the court "to address [Griselda's] claims of ineffective assistance of counsel and, if necessary, to conduct an evidentiary hearing to resolve those claims."
¶11 The juvenile court ordered Griselda to "prepare any affidavits believed to be necessary to address [her] claims." The court, however, stated it would not address "[t]he issue of ineffective assistance of counsel" because "there is no standard of review in Arizona to guide" the court. The court instead limited its examination to whether Griselda had demonstrated prejudice resulting from counsel's conduct. The parties filed numerous exhibits, including declarations, medical records, reports, interview transcripts, and articles addressing shaken baby syndrome and abusive head trauma. After reviewing the exhibits, the juvenile court determined that, We then directed the parties to file supplemental briefs addressing the court's determination.
¶12 We first address Griselda's claims that the evidence was insufficient to support the juvenile court's finding that she had abused A., of a nexus between that abuse and the risk she would abuse her daughters, and that termination of her parental rights was in H.'s and L.'s best interests. A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jade K., 240 Ariz. 414, ¶ 6, 380 P.3d at 113, quoting Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009) (alteration in Jade K.). "That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof." Id., quoting Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009). "We do not reweigh the evidence." Jordan C., 223 Ariz. 86, ¶ 18, 219 P.3d at 303.
¶13 To terminate Griselda's parental rights on the ground of abuse, the...
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