Opinion
No. 1 CA-JV 16-0558
06-20-2017
SEQUOIAH B., Appellant, v. DEPARTMENT OF CHILD SAFETY, I.G., Appellees.
COUNSEL John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Tucson By Laura J. Huff Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD32280
No. JS18526 The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined. McMURDIE, Judge:
¶1 Sequioah B. ("Mother") appeals from the superior court's order terminating her parental rights to I.G. For the following reasons, we affirm.
Father's parental rights were severed in a joint dependency and severance matter with Mother; however, he is not a party to this appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological parent of I.G., born on November 12, 2015. On February 10, 2016, I.G. was hospitalized due to a seizure-like episode. During the episode, I.G. had trouble breathing, was unresponsive, and became limp. She was transported to the Phoenix Children's Hospital and remained hospitalized for nearly one month. On March 8, 2016, the Department of Child Safety ("DCS") took temporary custody of I.G. after multiple medical examinations revealed she suffered from, inter alia, retinal hemorrhages in both eyes, skull fractures, intracranial subdural hematoma, and spinal subdural hematoma. DCS filed a dependency petition against Mother on the grounds of physical abuse, failure to protect, neglect, and domestic violence.
¶3 DCS moved for termination of Mother's parental rights to I.G. in May 2016 on the grounds of neglect and abuse pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-201(2) and -533(B)(2). Mother contested both the allegations of the dependency petition and the severance.
¶4 A joint dependency adjudication and severance trial took place in September and October 2016. In December 2016, the superior court found I.G. dependent and severed Mother's parental rights. The superior court found sufficient evidence existed for severance based on the grounds of abuse or neglect.
¶5 Mother timely appealed and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution; A.R.S. § 8-235(A); and Arizona Rule of Procedure for the Juvenile Court 103(A).
We cite to the current version of applicable statutes or rules when no revision material to this case has occurred.
DISCUSSION
¶6 Mother argues (1) DCS failed to meet its statutory burden of proving there was sufficient evidence for termination, and (2) the superior court's ruling is ipse dixit [ruling based on an assertion without proof], and erred by relying solely on a differential diagnosis in determining I.G. had been abused. We disagree.
¶7 The right to custody of one's child is fundamental, but it is not absolute. Michael J. v. ADES, 196 Ariz. 246, 248, ¶¶ 11-12 (2000). To support termination of parental rights, one or more of the statutory grounds for termination must be proven by clear and convincing evidence. A.R.S. § 8-537(B); Shawanee S. v. ADES, 234 Ariz. 174, 176-77, ¶ 9 (App. 2014). The court must also find, by a preponderance of the evidence, that severance is in the child's best interests. Id. at 177, ¶ 9.
Mother does not challenge the superior court's best interests finding; therefore, we do not address it.
¶8 We view the evidence in the light most favorable to sustaining the superior court's findings. Christina G. v. ADES, 227 Ariz. 231, 234, ¶ 13 (App. 2011). As the trier of fact, the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). We will accept the superior court's findings of fact unless no reasonable evidence supports those findings. Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶9 To justify termination of parental rights under A.R.S. § 8-533(B)(2), DCS must prove a parent has neglected or willfully abused a child. "[A]buse includes serious physical injury 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).
¶10 At the severance and dependency trial, pediatric nurse practitioner Cynthia Nelson testified I.G. suffered from, inter alia, non-accidental abusive head trauma, resulting in subdural and spinal subdural hematoma; retinal hemorrhages; rib fractures; and a cranial fracture. Nelson testified I.G.'s hematoma was likely caused by a significant injury or fall through an acceleration and deceleration mechanism causing movement of the brain in the skull, commonly known as shaken baby syndrome.
¶11 Mother posits the trauma could be a result of I.G. having rickets, the use of forceps at birth, potential exposure from airplane pressure when traveling from Florida to Arizona, and/or the seizure-like episodes. However, the record reflects that while forceps were used during I.G.'s birth, they were not used on I.G.'s head. Additionally, a CT scan revealed that bleeding areas in the brain and spine were both new and old, and acute and chronic. Furthermore, evidence was presented that seizures do not cause subdural and spinal hematoma, refuting Mother's suggestions regarding other potential causes of injury.
Mother took I.G. to Phoenix Children's Hospital on February 4, 2016, due to a similar seizure-like incident. Doctors indicated it was not a seizure and sent the family home. --------
¶12 Mother also testified that perhaps I.G. suffered from retinal hemorrhages at birth. However, Nelson testified that retinal hemorrhages are not apparent with the naked eye, and in any event, the alleged hemorrhages from birth would have healed by the time I.G. was three-months-old in February 2016. I.G.'s 50 retinal hemorrhages in the left eye, and 100 in the right eye, were indicative of significant trauma.
¶13 Finally, Nelson did recognize that rickets, which contributes to demineralization in the bones, could potentially have caused I.G.'s ribs to break. However, the remainder of the injuries, such as the spleen injury and cranial fracture, could not be explained by rickets.
¶14 Mother indicated that she did not know how I.G. sustained the multiple injuries. Moreover, Mother maintained she did not cause the injuries nor did she know how they were caused if they did not arise from the medical conditions of the child. However, Father testified he believed someone was abusing I.G. Mother had suspicions about Father, and she testified that I.G. had unexplained seizure-like activity immediately after being in Father's care. Mother knew Father had dropped I.G. on one occasion, and that Father was frustrated with the crying child. Mother also testified that Father had to engage in anger management after physically abusing Mother while she was pregnant with I.G.
¶15 Despite everything she knew about Father and the child, it was still Mother's intent to remain married to Father. This evidence supports a finding that Mother reasonably knew that someone was abusing I.G., and that Mother was unable to protect I.G. from the abuse. See Mario G. v. ADES, 227 Ariz. 282, 288, ¶ 25 (even if another person is responsible for the abuse, parental rights can be terminated when a parent reasonably knew or should have known about the possibility of abuse).
¶16 The superior court found I.G. suffered from non-accidental injuries and reasonable evidence supports this finding. See ADES v. Matthew L., 223 Ariz. 547, 550, ¶ 7 (App. 2010) ("[W]e look to the record to determine whether reasonable evidence supported the juvenile court's order."). The superior court further found reasonable evidence existed to support the statutory basis of abuse under § 8-533(B)(2) and we agree. See Denise R. v. ADES, 221 Ariz. 92, 93, ¶ 2 (App. 2009) ("[E]vidence must have been such that 'a reasonable mind' could find [the evidence] clear and convincing.").
CONCLUSION
¶17 Accordingly, we affirm.