Opinion
No. 1 CA-JV 17-0441
03-13-2018
IAN H., Appellant, v. DEPARTMENT OF CHILD SAFETY, G.H., G.H., Appellees.
COUNSEL Law Office of Denise L. Carroll, Scottsdale By Denise Lynn Carroll Counsel for Appellant Arizona Attorney General's Office, Phoenix By Amber E. Pershon 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JS18458
The Honorable William L. Brotherton, Judge (Retired)
AFFIRMED
COUNSEL Law Office of Denise L. Carroll, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined. BEENE, Judge:
¶1 Ian H. ("Father") appeals the termination of his parental rights to his two children, G.I.H. ("Older Sister") and G.I.H. ("Younger Sister") (collectively "the Children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Veronica H. ("Mother") are the biological parents of the Children. In December 2015, Father and Mother admitted Younger Sister to the Yuma Regional Medical Center ("YRMC") for failure to thrive. Upon returning home two days later, Mother took a nap and left Younger Sister in Father's sole care. Mother awoke to Younger Sister crying and the next day observed a bump on her head. Father denied knowing how she received the bump. Mother took her to the YRMC where an ultrasound revealed a hematoma. Father did not inform either Mother or the doctors of the cause of Younger Sister's injuries.
¶3 Younger Sister continued to be irritable, so a few weeks later in January 2016, Mother and Father took her back to the YRMC. During this visit, doctors performed a CT scan on Younger Sister and found significant trauma to her head, including a hematoma of her right parietal skull as well as a skull fracture. YRMC suspected child abuse and called both the Department of Child Safety ("DCS") and the police.
¶4 Father explained to DCS and the police that, after the initial December 2015 YRMC visit, he bumped into the couch while carrying Younger Sister, squeezed her head, and felt a pop, but she did not show signs of injury. Younger Sister's doctor informed the police that her injuries were too severe to have been caused by accidental squeezing and instead would have resulted from a significant blow to the head. After being transported to the Phoenix Children's Hospital ("PCH"), an examination confirmed the skull fracture and noted bleeding and contusions within Younger Sister's brain as well as several diffuse axonal injuries. PCH also noted that Younger Sister was at risk of permanent cortical visual impairment or blindness from her head injury, had life-threatening injuries, and required critical care. After this diagnosis, Father once again told PCH his story of accidentally squeezing Younger Sister's head.
¶5 After DCS put a safety plan in place that prevented Father and Mother from having unsupervised contact with the Children, Father disclosed for the first time that he tripped over a baby gate in the kitchen while carrying Younger Sister, which caused him to hit her head on the edge of the counter and drop her. The PCH medical team indicated that Father's new version of events did not explain the extent of her brain injury.
¶6 In February 2016, DCS took the Children into custody and filed a dependency petition. Shortly after, DCS filed a petition to terminate Father's parental rights to the Children based on his willful abuse of Younger Sister. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(2). During the pendency of the case, DCS provided Father with a psychological evaluation, individual counseling, and parent-aide services. While Father completed both a psychological evaluation and the parent-aide service, he did not participate in individual counseling on the advice of his attorney.
¶7 After conducting Father's psychological evaluation, the examiner noted that one of Father's responses indicated aggressive denial, which "may weaken the validity of the test." The examiner also reported that: (1) Father was a "good historian, was appropriately self-aware and appropriately engaged in the tasks presented;" (2) Father had minimally adequate parenting skills; and (3) she had no concerns about Father's ability to parent.
¶8 The superior court held a contested termination hearing in July 2017. At the hearing, nurse practitioner Roger Blevins, who had experience investigating child physical abuse cases, and who personally treated Younger Sister, testified that neither of Father's explanations accounted for her injuries. He also testified that Younger Sister's injuries were caused by acceleration/deceleration forces and are commonly seen in abuse cases. He further testified that he frequently sees shifting stories or histories with children who are victims of abuse and that difficulties in caring for a child "frequently trigger abuse." He ultimately concluded that Younger Sister was intentionally abused.
¶9 Dr. Philip Keen, testifying on behalf of Father, stated that Younger Sister's injuries were caused by a fall. He testified that the Children did not exhibit typical signs of abuse. He further testified that the fall was "within the realm of accidental" and not planned.
¶10 A DCS case manager testified that the Children would be at a substantial risk of harm if returned to Father's care. The case manager also testified that Father posed a risk to the Children, should not have legal access to them, and should never be left alone with them. Father's parent-aide reported that Father had made excellent progress in all his parent aide goals, had a strong bond with the Children, was willing to do anything for them, and had the tools necessary to care for them. During the hearing, the court called Father to testify, but Father refused, invoking his Fifth Amendment right against self-incrimination.
¶11 In July 2017, the court terminated Father's rights to the Children on grounds of abuse and found severance would be in the Children's best interests. Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
I. Standard of Review
¶12 The right to parent one's child is fundamental but not absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). The superior court may terminate parental rights if it finds, "by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533," and by a preponderance of the evidence that termination is in the best interests of the child. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12 (2000); Kent K., 210 Ariz. at 284, ¶ 22.
¶13 "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision," Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009), and we will not reverse unless "there is no reasonable evidence to support" the order, Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings," we will accept its findings of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
II. Sufficiency of the Evidence
¶14 Father first contends that the superior court erred by finding that DCS proved by clear and convincing evidence that his rights to the Children should be severed under A.R.S. § 8-533(B)(2). On this point, he only contends that the court erred by failing to "appropriately consider the evidence[.]" He notes that, regarding reviewing documents admitted into evidence, the court stated "[t]hat's not my job," and "you guys just need to point out to me whatever it is in these exhibits that I need to look at; otherwise if you don't, I won't be looking at them." However, the court later stated, "I've already reviewed all the exhibits and I reviewed what I was given today." Also, throughout the hearing, the parties called, examined, and cross-examined witnesses as well as pointed out specific evidence for the court to review. Thus, we find the superior court considered the evidence.
¶15 Moreover, reasonable evidence supports the superior court's termination of Father's parental rights to Younger Sister on grounds of abuse. Parental rights may be terminated when "the parent has neglected or willfully abused a child." A.R.S. § 8-533(B)(2). "[A]buse 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." Id.
¶16 Here, doctors found significant trauma to Younger Sister's head, including a hematoma of her right parietal skull and a skull fracture that left her developmentally delayed and at risk for cortical blindness. Father admits that he caused the injuries, but argues they were accidental. However, Father changed his story after he learned he could not have unsupervised contact with the Children, and both YRMC and PCH diagnosed Younger Sister with suspected nonaccidental trauma.
¶17 Mr. Blevins testified and determined that none of Father's explanations for Younger Sister's injuries adequately accounted for her injuries and that he frequently sees stories shift with "kids who are victims of abuse." He also testified that Younger Sister's feeding and fussiness issues after birth and before the injury could have led to the abuse, which is often triggered by "soiling the diaper, urinating, and prolonged crying, and difficulties." Mr. Blevins ultimately determined that Younger Sister was intentionally abused. Although Dr. Keen testified that Younger Sister's injuries were "within the realm of accidental," the court found Mr. Blevins's testimony to be more credible than that of Dr. Keen. See Jesus M., 203 Ariz. at 280, ¶ 4 (finding that the superior court is in the best position to weigh the evidence, observe the parties, and judge the credibility of witnesses).
¶18 Reasonable evidence also supports the superior court's termination of Father's rights to Older Sister. "[P]arents who abuse or neglect their children . . . can have their parental rights to their other children terminated even though there is no evidence that the other children were abused or neglected." Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 79, ¶ 14 (App. 2005). "When the grounds for termination of a parent's rights to one child are based on abuse of another child," there must be a "nexus between the prior abuse and the risk of future abuse to the child at issue." Tina T. v. Dep't of Child Safety, 236 Ariz. 295, 299, ¶ 17 (App. 2014).
¶19 Although the court did not expressly find a nexus between the abuse of Younger Sister and the risk to Older Sister, "we will presume that the juvenile court made every finding necessary to support the severance order if reasonable evidence supports the order," and "[i]f the juvenile court fails to expressly make a necessary finding, we may examine the record to determine whether the facts support that implicit finding." Mary Lou C., 207 Ariz. at 50, ¶ 17.
¶20 Here, the DCS case manager testified that both Older Sister and Younger Sister would be at a substantial risk of harm if returned to Father's care. The case manager noted that (1) Younger Sister's injuries came when Father was alone with her, (2) Father did not engage in counseling, and (3) Father's psychological evaluation showed concerns about his honesty as to what occurred. The case manager also explained that counseling is the appropriate service for perpetrators of abuse, and Father's failure to participate in counseling means that the risk he poses to the Children has not been addressed therapeutically. Additionally, the case manager testified that Older Sister was reported to have suffered from nightmares, would pull her hair, pinch her cheeks, and was fearful of men. Thus, we find that reasonable evidence supports the court's decision to terminate Father's parental rights to the Children.
III. Fifth Amendment
¶21 Father next contends that his Fifth Amendment rights against self-incrimination were violated. He argues that the superior court's negative inference against him for exercising his privilege against self-incrimination and not testifying at the severance hearing violated his constitutional rights. He further argues that the court "seemingly shifted the burden of proof" when it called him to the stand and that the threat of a negative inference against him "effectively 'compelled' [him] to testify in violation of the Fifth Amendment[.]" He contends that "[w]hen a parent cannot safely testify in their Children's Severance trial, the parent is forced to choose between conflicting fundamental rights."
¶22 A witness may claim the Fifth Amendment privilege against compulsory self-incrimination in any proceeding. Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79, ¶ 13 (App. 2001). While the State cannot impose certain penalties for the exercise of the privilege, the superior court may draw a negative inference from the invocation of the Fifth Amendment in civil litigation. Montoya v. Superior Court, 173 Ariz. 129, 131 (App. 1992); see Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (finding that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them").
¶23 Here, the superior court did not err by drawing a negative inference against Father for his failure to testify. The court stated that Father's testimony would have been helpful in resolving whether the injury to Younger Sister was accidental and gave Father the opportunity to testify, which he declined to do. The court had the authority to call Father as a witness. See Ariz. R. Evid. 614(a) ("The court may call a witness on its own"). Father chose not to testify and to subject himself to the risk of the court drawing a negative inference, which the court was entitled to do. See Wohlstrom v. Buchanan, 180 Ariz. 389, 391 n.2 (1994) ("[I]n civil cases, fact finders are entitled to draw negative inferences against those who assert Fifth Amendment rights against self-incrimination."). Therefore, the court did not err by drawing a negative inference.
IV. Best Interests
¶24 Lastly, Father contends the superior court erred in finding that the termination was in the Children's best interests. "Whether severance is in the child's best interests is a question of fact for the juvenile court to determine," and we draw all reasonable inferences in favor of the superior court's findings. Jesus M., 203 Ariz. at 282, ¶ 13. DCS "must present credible evidence demonstrating how the child[ren] would benefit from a severance or be harmed by the continuation of the relationship." Lawrence R. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 585, 587, ¶ 8 (App. 2008) (internal quotations omitted).
¶25 "While the severance-ground inquiry focuses on the parent, the best-interests inquiry primarily focuses on the child." Alma S. v. Dep't of Child Safety, 778 Ariz. Adv. Rep. 24, ¶ 14 (App. Nov. 14, 2017). "Best interests is a fact-specific, case-by-case determination in which the court balances a parent's interest in maintaining a relationship with his or her child (diluted by the existence of a severance ground) against the child's interest in a safe and stable home life." Id. A severance must either affirmatively benefit the child or eliminate a detriment of the parental relationship. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98, ¶ 8 (App. 2016).
¶26 Father argues that the evidence showed: (1) he had a strong bond with the Children; (2) he had made excellent progress in all his parent aide goals, was willing to do anything for the Children, and had the tools necessary to care for them; and (3) he "will be able to demonstrate minimally adequate parenting skills in the foreseeable future." He contends that DCS failed to prove beyond a preponderance of the evidence that either the Children would accrue an affirmative benefit from his parental rights being severed or incur a detriment by continuing in the relationship.
¶27 Here, reasonable evidence supports the superior court's determination that the Children would benefit from severance from Father. After hearing testimony from the DCS case manager that Mother was meeting the Children's basic and special needs, the court found that "Mother is caring for the child[ren] and doing a good job," which is "in the best interest of the children[.]" The court also found that severance from Father would be in the Children's best interests because if Mother "dies or becomes incapacitated in some way," then "Father would be presumed to be the one who takes the child[ren]" even though "the Court has made a determination that there has been willful abuse." Previously, the court had found Mr. Blevins's testimony that Younger Sister was intentionally abused to be more credible than Dr. Keen's testimony regarding the cause of Younger Sister's injuries. Severance would certainly affirmatively benefit the Children as they would not be subjected to Father's abuse if left alone with him while in his custody. Dominique M., 240 Ariz. at 98, ¶ 8. Therefore, the court did not err in finding that severance from Father was in the Children's best interests.
CONCLUSION
¶28 Accordingly, we affirm the superior court's termination of Father's parental rights to the Children pursuant to A.R.S. § 8-533(B)(2).