Mario G. v. Ariz. Dep't of Econ. Sec.

Citation227 Ariz. 282,257 P.3d 1162,608 Ariz. Adv. Rep. 20
Decision Date17 May 2011
Docket NumberNo. 1 CA–JV 10–0220.,1 CA–JV 10–0220.
PartiesMARIO G., Appellant,v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Camila G., Appellees.
CourtCourt of Appeals of Arizona

OPINION TEXT STARTS HERE

Thomas C. Horne, Arizona Attorney General By Michael F. Valenzuela, Assistant Attorney General, Phoenix, Attorneys for Appellee.Law Office of Anne M. Williams By Anne M. Williams, Tempe, Attorneys for Appellant.

OPINION

BROWN, Judge.

¶ 1 Mario G. (Father) appeals the juvenile court's order terminating his parental rights to his child, Camila.1 The issue we address is whether Arizona Revised Statutes (“A.R.S.”) section 8–533(B)(2) (Supp. 2010), which permits termination of the parent-child relationship under circumstances of willful abuse, extends to circumstances in which ADES seeks to sever the parental rights to a child born after the abuse of a different child. For the following reasons, we hold that parental rights may be severed as to a child born after the abuse occurs, regardless of whether that child was subjected to any abuse, provided that an adequate nexus exists between the prior conduct and the risk of future abusive behavior by the parent.2

BACKGROUND

¶ 2 Father is the biological father of Camila, who was born in 2009. Nine months before Camila's birth, Father's rights to his biological son, Alberto, were terminated pursuant to A.R.S. § 8–533(B)(2) due to abuse of a different child, Gabriela, while she resided in Father's home while Father and Mother were living together. Gabriela was Mother's child from a prior relationship. Father also had a child, Junior, from a prior relationship.3

¶ 3 In March 2007, Gabriela, age seven months, was taken to a hospital for a head injury, which Mother claimed occurred after Gabriela fell from a baby swing. Gabriela was released later that day. A few days later, Gabriela was again taken to the hospital because she was unable to move her right leg. She was treated for a number of serious injuries, including a femur fracture, tibia fractures, and multiple compression fractures of her spine. Mother attributed these injuries to two other young children in the home, stating that they played aggressively with Gabriela.

¶ 4 As a result of Gabriela's injuries, the Arizona Department of Economic Security (ADES) removed the children from the parents' care and filed a dependency petition. After providing services to the parents, ADES dismissed the dependency and Mother and the children resumed living with Father. During this time, Mother gave birth to Alberto, Father's biological child.

¶ 5 Approximately three weeks after the dependency was dismissed, in March 2008, Gabriela was again taken to the hospital, where she was diagnosed with an internal intestinal injury that required surgery. During surgery, the surgeon found a large volume of free-flowing blood in Gabriela's abdomen that was so substantial it required a blood transfusion. Mother and Father informed police that Gabriela was in Mother's care when she became symptomatic, although Gabriela was actually in the exclusive care of Junior, then twelve years of age. When questioned by police, Junior eventually confessed that Gabriela was in his care at the time and that he injured her. ADES subsequently filed a petition for termination of Father's and Mother's parental rights as to Gabriela and Alberto as a result of the abuse that Gabriela sustained.

¶ 6 At the severance hearing, physicians opined that the fractures and abdominal injuries were non-accidental and that they could not have occurred absent blunt force trauma. Moreover, the physicians opined that the fractures could not have resulted from the “aggressive play” activities described by Mother. The court also learned that Junior pled guilty to child abuse with respect to the abdominal injuries suffered by Gabriela, but did not plead guilty to the incident resulting in Gabriela's fractures.

¶ 7 In March 2009, the juvenile court ordered that severance was appropriate as to Gabriela and Alberto pursuant to § 8–533(B)(2) because Mother and Father “reasonably knew or should have known that a person was or may have been abusing or neglecting child Gabriela ... Assuming that [Junior] caused the abdominal injuries sustained by Gabriela, then it is clear that Mother and [Father] both failed to protect the child Gabriela from the abuse by another.” 4 The court also found that the evidence “clearly established that Mother and [Father] conspired to misrepresent the truth to CPS investigators and [a] police investigator investigating the factual circumstances surrounding Gabriela's abdominal injuries.... The evidence established that they conspired to lie to authorities simply to protect the individual whom they knew or suspected caused the abdominal injuries.” Both Father and Mother appealed the severance order, but Father's appeal was dismissed as untimely. As to Mother, this court affirmed the juvenile court's decision. Maria G. v. Ariz. Dep't of Econ. Sec., 1 CA–JV 09–0054, 2009 WL 4981585 (Ariz.App. Dec. 22, 2009) (mem. decision).

¶ 8 In December 2009, Mother gave birth to Camila. ADES immediately took Camila into custody and filed a dependency petition soon thereafter. In April 2010, ADES filed the instant petition for termination on the grounds of neglect and abuse under § 8–533(B)(2) and prior severance for the same cause within a two-year period under § 8–533(B)(10). In July 2010, ADES submitted a social study which recognized that the parents had been participating in services and that they interacted positively with Camila. ADES indicated its concerns, however, about the extensive abuse that had occurred with Gabriela and that the parents had hindered the investigation into that abuse. Thus, the social study recommended that the parents' rights be terminated to allow implementation of a plan of adoption.

¶ 9 The parents contested both the dependency and the severance petition relating to Camila and the juvenile court held a concurrent dependency/severance hearing in August 2010. The court took judicial notice of the severance findings in the case stemming from Gabriela's abuse and admitted into evidence transcripts from that case as well as this court's memorandum decision. Additionally, ADES presented evidence that Mother and Father had pled guilty to hindering prosecution as a result of the false information they provided regarding the circumstances surrounding Gabriela's prior abdominal injuries.

¶ 10 The juvenile court granted the motion to sever, finding ADES had proven by clear and convincing evidence the grounds set forth under § 8–533(B)(2), and that ADES established an adequate nexus between the abuse suffered by Gabriela and the risk of harm that such abuse would occur to Camila. Because it granted the motion to sever Father's parental rights on this ground, the juvenile court declined to consider the separate ground set forth under § 8–533(B)(10). The court also found that termination was in the best interests of the child. Father timely appealed.

DISCUSSION

¶ 11 “Although a parent's right to care, custody, and control of his or her children has long been recognized as fundamental, it is not absolute.” Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78, ¶ 6, 117 P.3d 795, 797 (App.2005) (citations omitted). The fundamental right to parent may be terminated under “statutorily enumerated conditions following specified procedures.” Id. To justify such termination, the juvenile court must find, by clear and convincing evidence, the existence of at least one ground set forth in A.R.S. § 8–533. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Additionally, the court is obligated to find by a preponderance of the evidence that termination is in the best interests of the child. Id.

¶ 12 We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings and will affirm unless, as a matter of law, no reasonable fact-finder could have found that the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App.2009). We review de novo, however, the juvenile court's interpretation of a statute. See Linda V., 211 Ariz. at 78, ¶ 7, 117 P.3d at 797.

I. Severance Based on Willful Abuse

¶ 13 Under § 8–533(B)(2), the juvenile court may properly sever a parent's rights if the parent has “neglected or willfully abused a child.” “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).

¶ 14 Father asserts that the juvenile court erred when it interpreted § 8–533(B)(2) as permitting termination of parental rights to a child born after abuse had already occurred. He contends further that absent a temporal limitation, the statute would allow ADES to sever the parent-child relationship as to any child born in the future, continuing “in perpetuity.” When construing a statute, we first look at the plain wording of the statute. In re Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App.2001). When a statute is clear and unambiguous, we apply it without using other means of statutory construction” unless application of the plain meaning would lead to impossible or absurd results. Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

¶ 15 Father suggests that this court has already determined that § 8–533(B)(2) is ambiguous based on our decision in Linda V., 211 Ariz. at 79, ¶ 14, 117 P.3d at 798. In Linda V., we addressed whether the legislature's reference to “a child” in § 8–533(B)(2) was ambiguous on its face; however, we ultimately concluded that “when the statute is examined in light of the pre-existing statutory language, the legislature's meaning is clear.” Id. We held that § 8–533(B)(2) permits...

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