Opinion
No. 1 CA-JV 12-0155
01-29-2013
ADRIAN V., STEPHANIE E., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ADRIANA V., LENA V., Appellees.
Christina Phillis, Maricopa County Public Advocate By Suzanne Sanchez Attorneys for Appellant, Adrian V. Denise L. Carroll, Esq. Attorney for Appellant, Stephanie E. Thomas C. Horne, Arizona Attorney General By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee, Arizona Department of Economic Security
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz. R.P. Juv.
Ct.; ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause Nos. JD20841, JS11927
The Honorable Joan M. Sinclair, Judge
AFFIRMED
Christina Phillis, Maricopa County Public Advocate
By Suzanne Sanchez
Attorneys for Appellant, Adrian V.
Mesa
Denise L. Carroll, Esq.
Attorney for Appellant, Stephanie E.
Scottsdale
Thomas C. Horne, Arizona Attorney General
By Michael F. Valenzuela, Assistant Attorney General
Attorneys for Appellee, Arizona Department of Economic Security
Phoenix
KESSLER, Judge ¶1 Appellants Adrian V. ("Father") and Stephanie E. ("Mother") appeal the juvenile court's order severing their parental rights with Adriana and Lena. Both Mother's and Father's rights were severed pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2) (Supp. 2012). For the following reasons we affirm the termination of parental rights.
We cite to the current version of the statute when no revisions material to this decision have occurred.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father are the biological parents of Adriana, born June 16, 2010, and Lena, born October 17, 2011. Mother also has two children by a different father who are not parties to this appeal. Mother babysat two additional children in her home, A.S. and J.S. A.S. and J.S. were four months old and three years old, respectively, at the time of the dependency action. ¶3 In September 2011, Ms. S., the biological mother of A.S. and J.S., dropped her children off at Mother and Father's home at approximately 7:30 a.m. Mother testified that when Ms. S. dropped A.S. off, A.S. was behaving normally and was smiling. Shortly thereafter, Mother and Father left the house to take Mother's two other children to school. Father gave A.S. a bottle in the van in the school parking lot. At approximately 11:30 a.m., Mother woke A.S. from her nap, and Mother and Father left to pick up one of the children from school. Mother testified that when she woke A.S. up from her nap, she was "fussy," so she gave her a bottle of which A.S. drank approximately between four and five ounces. ¶4 When Mother and Father returned home at approximately 12:15 p.m., Father found a notice regarding an unpaid electric bill that had been placed on their front door. Father went to the front office of the apartment building to make a call regarding the notice, and Mother was alone with the children. Mother testified that A.S. was "fussy" and seemed hot, so she undressed her and placed her in a "bouncy seat." While Mother was making lunch, she heard A.S. vomit. Mother testified, and Ms. S. confirmed, that A.S. had a milk intolerance that caused her to spit up frequently, but Mother testified that on this occasion, A.S. spit up more than usual. Mother took A.S. to the bathtub to wash her off, and as she held A.S. in her arms under the water, A.S. jerked back suddenly. Mother believes that a small amount of water got into A.S.'s nose or mouth, but Mother does not believe that A.S. hit her head on anything. ¶5 Mother laid A.S. on a towel on the floor in her bedroom, and she noticed that A.S. looked pale and seemed "whiny." When Mother picked up A.S., she became limp and looked unconscious. Mother testified she attempted to gently shake A.S. to get her attention and then Mother began to perform CPR. Father returned to the apartment at this time, and Mother told Father to call 911. Mother testified that A.S. began to spit up and vomit, and a small amount of blood came out of A.S.'s mouth. ¶6 A.S. was initially taken to Banner Thunderbird Medical Center and then later transferred to Cardon Children's Medical Center. While at Cardon Children's Medical Center, a hospital social worker called Dr. Coffman, a pediatrician and division chief of the child protection team for another hospital, to evaluate A.S. for suspected abuse. A.S. was found to have bilateral subdural hematomas, retinal hemorrhages, an occipital skull fracture, a right distal tibial fracture, and some aspiration or pneumonia. Initially, however, a CT scan performed at Banner Thunderbird Medical Center did not show any evidence of brain trauma or bleeding, but because the CT scan did not match the "clinical picture" of A.S., she was kept in the hospital. A subsequent MRI scan and EEG showed bleeding and abnormal brain activity. Dr. Coffman opined that the brain bleeds were not seen on the first CT scan because either they weren't there or "the bleeding was so fresh that it had not . . . collected yet." ¶7 After speaking with Ms. S. and the police detective in charge of the investigation, and after reviewing medical records, Dr. Coffman opined to a reasonable degree of medical certainty that A.S. was injured at some point after she finished her last bottle at approximately 11:30 a.m. She explained that a child with a catastrophic head injury would not look, act, or feed normally, and that because Mother claimed A.S. fed normally at approximately 11:30 a.m., the injury likely occurred after that. Dr. Coffman also testified that A.S. most likely suffered an "acceleration/[deceleration] injury," and that A.S.'s ankle injury occurred at an earlier time during the two-and-a-half to three-month period in which Mother had been babysitting A.S. Dr. Coffman was unable to determine when A.S.'s endured the skull fracture. She testified that A.S.'s skull fracture could have happened at the time of the acceleration/deceleration injury or it could have happened at an earlier time. Dr. Coffman explained that an acceleration/deceleration injury occurs when a baby's head goes back and forth, which happens when a baby is involved in a car accident, falls, or is shaken. Dr. Coffman opined that A.S.'s injuries were non-accidental and occurred at a time while she was in the care of Mother and Father. ¶8 Both Phoenix police and CPS investigated Mother and Father and A.S.'s parents. After an investigation, A.S.'s parents were no longer considered suspects in the criminal investigation, and CPS determined that A.S.'s parents did not cause A.S.'s injuries. The State filed a dependency petition as to Adriana in September 2011, and after Lena was born, the State filed a dependency petition as to Lena in November 2011. In December 2011, the State filed a severance petition as to both children. In July 2012, the court terminated Mother's and Father's parental rights to Adriana and Lena pursuant to A.R.S. § 8-533(B)(2), finding that clear and convincing evidence established Mother and Father neglected or willfully abused a child, and severance was in the best interests of their children. Mother and Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007), 12-120.21(A)(1) (2003), and -2101(A)(1) (Supp. 2012).
In its July 5, 2012 minute entry, the court noted that the criminal investigation was still open and that Mother and Father were still possible suspects.
DISCUSSION
¶9 We review an order severing parental rights for clear error. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). This Court views the evidence in favor of supporting the juvenile court's findings, but we are not required to accept findings of fact unless they are supported by reasonable evidence. Id. (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000)); see also Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 25, 152 P.3d 1209, 1213 (App. 2007) ("To the extent findings are not adequately supported by the record, they are clearly erroneous.").
I. Severance as to Mother
¶10 Mother raises three arguments on appeal. First, she argues the trial court denied her due process when it allowed the State to remove her children from her home because Mother exercised her right to counsel. Second, she argues the trial court erred by allowing the State to proceed with trial despite having failed to timely disclose documentation in compliance with Rule 44 of the Arizona Rules of Procedure for the Juvenile Court. Finally, she argues the State failed to prove that Mother abused a child or that severance was in the best interests of her children.
a. The State's Removal of Mother's Children From Her Physical Custody ¶11 Mother argues that the State interfered with her fundamental right to custody of her children when, in response to Mother and Father's retention of counsel, a CPS agent removed her children from the home and placed them in the temporary custody of family members. Mother claims the State's removal of her children communicated to her that she must "give up [her] attorney, give up . . . [her] right to silence as guaranteed by the constitution and [she] can maintain custody of [her] children." We agree with the State that this Court lacks jurisdiction to review Mother's challenge to the court's order granting the State's motion to change the physical custody of Adriana and Lena to their grandfather. ¶12 In September 2011, immediately following A.S.'s injury, CPS implemented a safety plan which required Adriana's maternal grandmother to act as a safety monitor responsible for supervising Mother and Father's contact with their children at all times. As part of the safety plan, Mother and Father agreed to cooperate with CPS, and the safety monitor agreed to report to CPS regarding the children's safety. Several days later, Mother and Father told Detective J.C. that they had retained a lawyer and that they had been advised to no longer speak with either the police or CPS. Because Detective J.C. informed CPS of Mother and Father's retention of counsel and refusal to cooperate, a CPS agent visited Mother and Father's home to check on the children. Neither the parents nor the children's grandmother would allow the agent inside the home. Mother called her attorney who arrived shortly thereafter and explained to the agent that he had advised his clients not to speak to CPS. After the attorney arrived, Mother and Father opened the door and allowed the agent to check the apartment and check on the children. The agent testified that she found nothing dangerous in the home and that the children all looked well cared for. However, because she was suspicious of the Mother and Father's behavior and the grandmother's behavior, she terminated the safety plan and removed the children from the home. ¶13 The State filed a dependency petition as to Adriana, and after a hearing, the court issued a preliminary protective order returning physical custody of Adriana to Mother and Father with a safety monitor present at all times. On October 17, 2011, Mother gave birth to Lena, and in November 2011, the trial court granted temporary physical custody of Lena to Mother and Father. On November 25, 2011, after receiving additional information about A.S.'s injuries, the State filed a motion for a change of physical custody of Adriana and Lena. During a pretrial conference hearing, Mother chose not to request an evidentiary hearing, and in December 2011, the court ordered both Adriana and Lena to be in the physical custody of their maternal grandfather. Mother did not appeal this order. ¶14 Mother seems to be challenging on appeal the October 2011 CPS removal of her children immediately following the home visit by the CPS agent. Contrary to Mother's argument, however, the court did not order a change in physical custody at that time. After a hearing on the preliminary protective order, during which Mother was represented by counsel, the court ordered Adriana to remain in the physical custody of Mother and Father. Mother argues that she was denied due process because CPS removed her children and the State pursued not only dependency, but "went straight to termination" based solely on the fact that Mother and Father had retained counsel and exercised their rights to remain silent. ¶15 The record does not support Mother's interpretation of events. After a hearing, the court returned the children back to Mother and Father and did not order a change in physical custody until December 2011 following the receipt of additional medical reports. Likewise, the State did not file a petition for severance until December 2011. Moreover, Mother was afforded due process after the temporary removal of her children. Mother and Father received a hearing on the preliminary protective order in October 2011, and both Mother and Father were represented by counsel. See Mara M. v. Ariz. Dep't of Econ. Sec., 201 Ariz. 503, 507, ¶ 24, 38 P.3d 41, 45 (App. 2002) (stating due process includes "notice reasonably calculated . . . to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections." (citation omitted)). ¶16 To the extent Mother claims the temporary removal of her children in October 2011 influenced the December 2011 order to change the children's physical custody, this Court lacks jurisdiction because Mother failed to appeal the December 2011 order. "[A]n aggrieved party may appeal an order issued pursuant to the juvenile court's periodic review of a determination of dependency or of a custodial arrangement . . . ." Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 14, 680 P.2d 146, 150 (1984); see also Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, 404, ¶ 7, 187 P.3d 1115, 1117 (App. 2008) ("An order awarding custody of a dependent child as well as a subsequent order ratifying or changing a child's placement is final and appealable."). "The failure to file an appeal in a timely fashion deprives the appellate court of jurisdiction." Pima Cnty. Juv. Action No. S-933, 135 Ariz. 278, 279, 660 P.2d 1205, 1206 (1982). Furthermore, although Mother initially contested the State's November 2011 motion for a change in physical custody, she later withdrew her request for an evidentiary hearing. Mother cannot now claim on appeal that she did not receive due process.
b. The State's Untimely Disclosure ¶17 Mother next argues that the court erred in admitting several of the State's exhibits over Parents' objections. Mother claims that she was denied due process because her ability to provide evidence on her own behalf as well as her ability to impeach witnesses was limited because of the State's untimely disclosure of evidence. We agree with the State that Mother did not object to the admission of evidence based on untimely disclosure, and Mother was not prejudiced by the admission of this evidence. ¶18 On the first day of trial, the State moved to admit Exhibits 4, 5, 7, 8, 9, 10, and 11. Exhibit 4 was the police report and related documents pertaining to the September 13, 2011 injury of A.S., and Exhibit 5 was a collection of photographs accompanying the police report. Exhibits 7 through 11 were various medical reports pertaining to A.S.'s injuries. Mother objected to the admission of these exhibits based on hearsay. Mother claims on appeal that she joined Father's objections to the State's untimely disclosure of Exhibit 7, but the record does not support this assertion. After Mother objected on hearsay grounds, Father joined in Mother's objections and then made his own objections claiming Exhibit 7 was untimely disclosed, and Exhibits 8, 9, 10, and 11 were cumulative. Later, Father's counsel renewed his objection to the admission of Exhibit 4 because of its late disclosure and because it was incomplete. Contrary to Mother's argument, Mother did not then join in Father's additional objections. After hearing arguments from both sides, the court admitted all the exhibits into evidence. ¶19 "A trial court has broad discretion in admitting or excluding evidence, and we will not disturb its decision absent a clear abuse of its discretion . . . ." Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App. 2005). However, a party's "objection on one ground does not preserve the issue on another ground[,] and when a party fails to object properly, we review solely for fundamental error." Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239, ¶ 13, 282 P.3d 437, 440 (App. 2012) (citation and internal punctuation omitted); see also Sulpher Springs Valley Elec. Coop., Inc. v. Verdugo, 14 Ariz. App. 141, 146, 481 P.2d 511, 516 (1971) ("An appellant may not stand on one ground of objection in the trial court and urge another on the appellate level . . . ."). "To prevail on a claim of fundamental error, the appellant must also demonstrate prejudice." Ruben M., 230 Ariz. at 239, ¶ 16, 282 P.3d at 440. ¶20 Without deciding whether there was any error, we conclude Mother cannot demonstrate fundamental error. First, Mother argues that the State failed to disclose a complete police report, and that parts of the report remained missing even at the time of trial. The record, however, shows that the State disclosed everything that it had. The court noted that in an ongoing investigation, it is logical that a police report would be incomplete, and thus, the court stood by its original ruling to admit the police report into evidence. The court did, however, release a copy of a supplement that had not been disclosed to all parties "so that everyone [could] take a look at it and, . . . if something else need[ed] to be done . . . [they] [could] talk about that." Later, the court ensured that Mother's counsel had time to review the supplement and offered Mother's counsel the opportunity to ask questions based on the supplement, which Mother's counsel declined. Because the State disclosed all of the police report documents in its possession, and because Mother's counsel was afforded the opportunity to review a recently disclosed supplement and ask questions based on that supplement, Mother was not prejudiced by its late disclosure. ¶21 Mother also argues she was denied due process when the court admitted Exhibit 7 over Father's objection to its untimely disclosure. Exhibit 7 is an eight-page report from one of A.S.'s treating doctors, which according to the attached affidavit, was prepared on March 5, 2012, over one month before trial. The affidavits attached to Exhibits 8, 9, 10, and 11, which include the expansive medical records from Banner Thunderbird Medical Center, Phoenix Children's Hospital, Cardon Children's Medical Center, and Arrowhead Pediatrics, indicate that all of those exhibits were prepared well before March 2012, and there was no objection at trial based on untimely disclosure of any of these medical records. Accordingly, Mother had ample opportunity to call expert witnesses on her own behalf and to properly defend herself. In response to Father's objection, the court confirmed that although the State's disclosure of Exhibit 7 was past the deadline, Father's counsel had a chance to review it. Furthermore, given the large volume of medical records admitted into evidence as Exhibits 8 through 11, the information contained in Exhibit 7 is cumulative. Thus, Mother has not shown she was prejudiced by the court's admission of any untimely disclosed evidence.
c. Sufficiency of Evidence ¶22 "To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (citation omitted). Section 8-533(B)(2) provides: "Evidence [is] sufficient to justify the termination of the parent-child relationship [when] . . . the parent has neglected or wilfully abused a child." The court may terminate parental rights to a child who has not been abused or neglected upon proof that the child's parents abused or neglected another child, Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795, 798 (App. 2005), provided that there is "a nexus between the abuse or neglect committed on the child who was abused . . . and the risk that such abuse would occur to a different child . . . to whom parental rights [are] being severed," id. at 80 n.3, ¶ 17, 117 P.3d at 799 n.3. On this record and given that we must construe the evidence in the light most favorable to affirm the trial court, reasonable evidence supports the trial court's order to sever Mother's parental rights on the grounds of abuse. ¶23 Mother specifically argues that the court failed to consider evidence that A.S.'s initial tests performed at Banner Thunderbird Medical Center did not show brain bleeds, and it was only after A.S. suffered seizures that there was evidence of brain injury. Mother claims this evidence was inconsistent with Dr. Coffman's conclusions, and because of the discrepancy, Mother argues the court's order was not supported by clear and convincing evidence. ¶24 Contrary to Mother's assertion, reasonable evidence established that A.S. suffered severe physical injuries, and that these injuries occurred while A.S. was in Mother's sole custody. Dr. Coffman concluded that A.S.'s injuries would have had to have occurred after A.S. fed normally. According to Mother's own testimony, A.S. ate approximately four to five ounces shortly after 7:30 a.m., and she ate approximately three to four ounces at some point between 11:30 a.m. and noon. Mother testified that shortly after eating the last bottle between 11:30 a.m. and noon, A.S. may have aspirated water, she became unconscious and limp, and a small amount of blood came out of her mouth. Dr. Coffman testified that A.S.'s injuries were consistent with an acceleration/deceleration injury which was inconsistent with Mother's explanation of events. Dr. Coffman testified that she believed A.S.'s injuries were non-accidental and caused while in the care of Mother and Father. ¶25 Although Mother argues that conflicting medical evidence existed, Dr. Coffman explained the inconsistency between A.S.'s initial CT scan at Banner Thunderbird Medical Center and subsequent tests. Dr. Coffman testified that A.S.'s brain bleeds may not have shown up on A.S.'s initial CT scan because the "bleeding was so fresh that it had not . . . collected yet." Dr. Coffman explained that although the bleeds may not have been perceptible on the CT scan, she presumed they must have existed because A.S. was unresponsive and had already been injured upon arriving at the hospital. Dr. Coffman further explained that even though the first CT scan did not show any abnormalities, the hospital chose to keep the child because the CT scan results "did not mesh [with] the clinical picture of the child." ¶26 Contrary to Mother's assertion, the court did consider the evidence of A.S.'s initial CT scans and adopted the findings of Dr. Coffman. In its July 5, 2012 minute entry, the court recognized that "[t]he first CT scan at the hospital was read as normal, but that did not fit with the child's clinical picture." "The juvenile court is in the best position to measure the credibility of witnesses. We do not reweigh evidence, but only look to determine if there is evidence to sustain the juvenile court's ruling." Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996) (internal citation omitted). ¶27 Furthermore, the record supports a finding that there is a nexus between A.S.'s injuries and the risk of harm to Adriana and Lena. First, Dr. Coffman testified that if A.S.'s injuries were non-accidental and occurred while A.S.'s was in the care of Mother and Father, any other children in the care of Mother and Father would also be at risk for abuse or neglect. She later testified that in her opinion, A.S.'s injuries were non-accidental, and that based upon a reasonable degree of medical certainty, she believed they occurred while in Mother and Father's care. A CPS agent also testified that Adriana and Lena would be in danger and "detrimentally affected by maintaining a relationship with their parents." This finding is also outlined in CPS's report to the juvenile court in which the agent concluded that "[t]here [was] an ongoing concern for the safety of any child in this home due to the severity of the injury suffered by [A.S.] who was in the care of [Mother] and [Father] at the time the incident occurred." Similarly, a CPS case manager testified that she had concerns about Adriana and Lena being returned to the care of Mother and Father because their ages were similar to that of A.S., and "they might be at risk of similar injuries." She testified that she believed it would be detrimental to Adriana and Lena if they remained in Mother and Father's care. She explained that Adriana's and Lena's ages were a concern because "[the] children are so young and vulnerable that they could not report abuse to anyone." Although the court did not explicitly find that a nexus existed, our examination of the record establishes that evidence supports that implicit finding. See Mary Lou C., 207 Ariz. at 50, ¶ 17, 83 P.3d at 50. ¶28 Mother makes two additional related claims in her argument that the evidence was insufficient to support severance. First, she argues that the State's late disclosure of evidence prevented her from calling her own expert witnesses to testify. As discussed above, Mother never objected below to the late disclosure of any evidence, and even if she did, Mother had ample opportunity to review all medical records and present her own expert witness. Moreover, Mother never requested the court grant her a continuance so that she could gather additional evidence on her behalf. Second, Mother argues that if Dr. Coffman's findings regarding the cause of A.S.'s injuries were so conclusive, Mother would have been charged with a crime. Whether or not Mother was criminally charged bears no weight on the juvenile court's findings because the burden of proving criminal culpability is much higher than that of establishing abuse in a severance action. See Pima Cnty. Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App. 1994). II. Severance as to Father ¶29 Father raises two issues on appeal. First, Father argues that the court erred in granting the State's severance petition because the State failed to establish Father abused or neglected his children. Second, Father argues that the court's findings did not support the conclusion that severance was in the best interests of the children. We find the court did not err in granting the State's severance motion.
The State must prove the best interests element by a preponderance of the evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
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a. Sufficiency of the Evidence ¶30 For the reasons discussed in paragraphs 22 through 27 above supporting severance as to Mother, reasonable evidence supports the trial court's order severing Father's parental rights. Pursuant to A.R.S. § 8-533(B)(2), abuse includes "situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." Father argues that because he was not physically present when A.S. was injured and because he responded appropriately when he learned of her injuries, he poses no risk to his children. Father distinguishes the case at bar from situations like those in Linda V., 211 Ariz. at 80, ¶ 17, 117 P.3d at 799, and Mario G. v. Arizona Department of Economic Security, 227 Ariz. 282, 288, ¶ 25, 257 P.3d 1162, 1168 (App. 2011), in which the parent knew about the abuse and failed to protect the children. Here, Father claims that if Mother's rights were terminated, he would have obeyed the court order and refused her unsupervised access to the children, and he testified as such. Although Father believes that the evidence was insufficient to support a finding that Mother injured A.S., even assuming the evidence was sufficient, Father argues the State did not prove that he posed any risk to his children. ¶31 As discussed above, reasonable evidence supports a finding that Mother abused A.S. Although Father points to evidence that A.S.'s biological parents could have caused A.S.'s injuries, this Court's inquiry is not whether conflicting evidence exists, but whether sufficient evidence supports the court's ruling. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004) ("A 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 resolve disputed facts. We therefore . . . affirm its severance order unless the order is clearly erroneous." (citation omitted)). ¶32 Although Father testified that if Mother's rights were terminated he would deny her unsupervised visitation, he also testified, despite the overwhelming evidence, that he had no concerns about Mother's parenting and he did not think Mother posed a risk to any child. Father testified that he would only believe Mother caused A.S.'s injuries "[i]f there was actual proof that she did it," and that he wasn't convinced by the evidence presented because "science is not exact." Father also clarified that if Mother's rights were terminated, he would refuse to give Mother unsupervised visitation, not because he had concerns about her parenting ability, but only because he would want to avoid interference with his own parental rights. ¶33 The court made the following findings:
Father does not believe that Mother harmed [A.S.]. He does not believe Mother is a risk to children. He would only be concerned if it was proven to his satisfaction that Mother injured [A.S.]. What Father is implying is that unless he actually saw Mother injure [A.S.] with his own eyes, he will not believe that she could hurt a child. This places children in his care at risk.While the court did not make explicit findings regarding the credibility of Father's statement that he would obey a court's order and refuse Mother unsupervised visits, we find that the record supports an implicit finding that the court did not find Father's statements credible. See Mary Lou C., 207 Ariz. at 50, ¶ 17, 83 P.3d at 50 ("We will presume that the juvenile court made every finding necessary to support the severance order if reasonable evidence supports the order. If the juvenile court fails to expressly make a necessary finding, we may examine the record to determine whether the facts support that implicit finding." (citations omitted)). The court found that Adriana and Lena would be at risk in Father's care because Father did not believe Mother could hurt a child; thus, we can infer that the court did not find Father's assurance that he would obey court orders to be credible. Accordingly, evidence supports a nexus between A.S.'s injuries and the ability of Father to protect his children from harm.
b. Children's Best Interests ¶34 Father next argues that the court erred in finding that severance was in the best interests of the children because the court failed to find that a specific adoption plan was in place. Father argues that the court's finding "that these two children are adoptable" was insufficient to determine severance was in their bests interests. We disagree. ¶35 "[W]here there is clear and convincing evidence of parental unfitness which has not been remedied . . . and which detrimentally affects the child's well-being, severance may be warranted and appropriate even in the absence of a plan for adoption." Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158, 781 P.2d 634, 636 (App. 1989). Here, the court found that it would be detrimental for the children to remain in the care of Mother and Father. The court also found that the children did not have any special needs or behavioral issues and that there were many family members willing to adopt them. There is no evidence on this record to suggest that there was no available adoptive placement. In fact, Mother testified that the children's maternal grandfather was willing to adopt them if necessary and that she had no concerns about his ability to care for them. Additionally, Mother testified that the children's uncle, aunt, and paternal grandparents were also willing to adopt the children. In any event, the availability of adoption is not the sole criterion for determining the best interests of the children. Id. at 158, 781 P.2d at 636. Thus, the court did not abuse its discretion in finding that severance was in the best interests of the children.
CONCLUSION
¶36 For the foregoing reasons, we affirm the juvenile court's order terminating Mother and Father's parental rights.
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DONN KESSLER, Judge
CONCURRING: _______________
JOHN C. GEMMILL, Presiding Judge
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JON W. THOMPSON, Judge