Opinion
No. 1 CA-JV 13-0099 No. 1 CA-JV 13-0100
01-02-2014
JESSICA G., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, G.S., Appellees.
The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Devany Counsel for Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT
AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Supreme Court 111(c)
Appeal from the Superior Court in Maricopa County
Nos. JD510076/ JS507247
The Honorable Brian K. Ishikawa, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric Devany
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Peter B. Swann authored the decision of the Court, in which Judge Patricia K. Norris and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Jessica G. ("Mother") appeals the juvenile court's orders adjudicating G.S. ("Son") dependent as to her and severing her parental rights to him. Mother contends that there was insufficient evidence to support the dependency finding and severance determination. Because reasonable evidence supports both orders, we affirm.
The caption has been amended to safeguard the identity of the juvenile pursuant to Administrative Order 2013-0001.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to affirming the juvenile court's order. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶2 Mother and Gilbert S. ("Father") are the biological parents of Son, born in February 2010, and A.G. ("Daughter"), born in March 2012. Daughter died on May 16, 2012, from homicidal blunt force trauma to her head. How two-month old Daughter suffered the injuries that ultimately caused her death remains undetermined, but the record reflects the following.
Father was dismissed as a party to this appeal because he failed to file an opening brief. Facts relating to him are therefore included only as necessary to establish the issues on appeal.
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¶3 Daughter was born with an ischemic brain injury requiring life-long special care. Upon her release three weeks after birth, hospital personnel instructed Mother and Father in how to feed Daughter through a nasogastric tube, medicate her every three to four hours, and perform infant cardiopulmonary resuscitation ("CPR"). Mother and Father were their children's primary caregivers and the only household members who knew how to feed Daughter.
¶4 In the afternoon of May 15, 2012, Mother went to work and left Daughter under her grandmother's supervision. Father returned from work a few hours later, brought Daughter and Son into their shared bedroom, fed Daughter and put her down for a nap. As Father attempted to wake Daughter for her next feeding, he found her unresponsive. Using a stethoscope, Father determined that Daughter's heart was beating but believed she had stopped breathing. Father attempted CPR for approximately five minutes and then drove Daughter to the hospital. He called Mother at work and she immediately drove to the hospital.
¶5 Daughter arrived at the hospital pulseless and unresponsive. She was stabilized and transported to a children's hospital, where she was diagnosed with catastrophic head injury resulting in brain death. An evaluation revealed nine large bilateral skull fractures; multifocal intracranial bleeds; severe diffuse brain injury; severe retinal hemorrhages consistent with shaken-baby syndrome; multiple old and healing rib fractures; cranial vault swelling; an expanding hematoma behind her right ear consistent with blunt injury; multiple bruises on her chest, hands, arms, and legs; and elevated liver function and free fluid in her bowel potentially caused by direct injury to her abdomen. A consulting pediatrician deemed Daughter's injuries nonaccidental and noted the lack of an explanation for them. Child Protective Services ("CPS") removed Son from his parents' care the following morning, and Daughter's physicians took her off life-support that evening.
¶6 According to Mother, hospital personnel attended to Daughter three to four times a week between her post-birth release and death, yet had never reported any injuries or related concerns. Mother later testified that five days before Daughter's death, a group of specialists had told her that Daughter would not need any physical therapy because her parents "were doing fine with her." Four days before her death, Mother brought Daughter to the emergency room complaining of vomiting, but left against medical advice without being seen. Mother again brought Daughter to the hospital for vomiting concerns two days before her death, but no injuries were observed and Daughter was discharged.
¶7 During the ensuing police investigation, Father repeatedly denied causing Daughter any injuries, though he was unable to explain them. Mother likewise denied knowing how Daughter suffered her injuries but suggested that Son may have caused them as he had recently tried to kick Daughter. Eventually, however, Father admitted that when he found Daughter unresponsive, he panicked, squeezed and shook her hard enough to cause injuries, and "slammed" her down hard enough to hear a "thump" sound as her head struck the carpet-covered cement floor. Father also showed a police detective how he had placed an excessive amount of weight on Daughter's head as he attempted CPR. But Father adamantly maintained that he panicked after he found Daughter unresponsive, and refused to acknowledge the fact that Daughter had become unresponsive from trauma and injuries suffered before he attempted CPR.
¶8 In May 2012, the Arizona Department of Economic Security ("DES") petitioned the court to adjudicate Son dependent as to his parents. DES alleged that Mother was unable to parent Son because she had physically abused Daughter or had failed to protect Daughter from physical abuse. In August 2012, DES further petitioned the court to sever Mother's parental rights to Son for the same reasons, arguing that she had created a substantial risk to Son's health and welfare, sufficient to sever her parental rights under A.R.S. § 8-533(B)(2).
¶9 Daughter's autopsy report, issued in September 2012, opined that she had died of blunt force head trauma in a manner of homicide. The report was consistent with the hospital's earlier evaluation and confirmed the presence of multiple old and healing rib fractures. The following month, the CPS case manager noted that Mother had suggested several additional theories for Daughter's injuries despite Father's earlier admission to causing some of them, and further reported that both parents disclaimed responsibility for Daughter's other injuries.
¶10 The juvenile court held a consolidated dependency and severance hearing in January and February 2013, during which it heard testimony from, among others, Daughter's consulting pediatrician, the CPS case manager, and Mother. The pediatrician testified that Daughter had sustained some of her rib fractures at least a week before her death and that they were "very specific for the kind of force that occurs when a child is squeezed very, very hard" which "happens very commonly" when someone is shaking a baby. Daughter's "many, many, many retinal hemorrhages in all layers of the retina" were also "very specific for acceleration-deceleration injury." The pediatrician further testified that Daughter's rib fractures would have caused severe pain with breathing, crying, and moving, and that an observant parent would have noticed the discomfort. In the pediatrician's opinion, a doctor would have detected symptoms if she had been seen within one or two days of receiving the rib fractures, but any later and they would already have been forming calluses. The pediatrician refuted all previously offered explanations for Daughter's injuries, including that they were caused by Father's attempted life-saving measures, transport between hospitals, complications at birth or a rambunctious two-year-old brother, and concluded that no reasonable explanation had been provided for Daughter's injuries.
¶11 The CPS case manager in turn opined that the parents' failure to take responsibility for Daughter's injuries posed a continued risk that they would also abuse or neglect Son. The case manager testified that DES had not ruled out the possibility that Mother herself had injured Daughter, and further opined that Mother should have known of Daughter's injuries as a primary caregiver even if she had not caused them. On the last day of trial, having heard the foregoing testimony, Mother testified that she still did not know how Daughter was injured. She explained that she remained with Father because "even with all the accusations . . . he's proven he's innocent." Mother did, however, testify that if given "the option of just getting [Son] back," she would be willing to "cut off whatever connection to [Father]."
¶12 The juvenile court found Son dependent and severed Mother's parental rights under A.R.S. § 8-533(B)(2), finding that Mother knew or should have known about Daughter's rib fractures and also failed to provide reasonable explanations for how those and other injuries had occurred. Mother timely appeals.
STANDARD OF REVIEW
¶13 Because the juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings, we accept the juvenile court's findings of fact unless no reasonable evidence supports them. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). We will not reverse a severance order unless it is clearly erroneous. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997).
DISCUSSION
¶14 Mother contends that DES did not present sufficient evidence to prove that Son was dependent as to her or to warrant severance of her parental rights under the statutory ground the court found. We disagree.
¶15 To adjudicate Son dependent, the court had to find by a preponderance of the evidence that he was (1) "[i]n need of proper and effective parental care and control and [had] no parent . . . capable of exercising such care and control," or (2) that his "home [was] unfit by reason of abuse, neglect, cruelty or depravity by a parent." A.R.S. § 8-201(13)(a)(i), (iii); Ariz. R.P. Juv. Ct. 55(C). And to e Mother's parental rights to Son, the court had to find by clear and convincing evidence the existence of at least one statutory ground for severance, and by a preponderance of the evidence that severance was in the best interests of the child. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C). Clear and convincing evidence is that which makes the alleged facts highly probable or reasonably certain. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 93, ¶ 2, 210 P.3d 1263, 1264 (App. 2009).
¶16 Under A.R.S. § 8-533(B)(2), the parent-child relationship can be severed when a "parent has neglected or wilfully abused a child." The statute defines abuse to include "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. "[P]arents who abuse or neglect their children, or who permit another person to abuse or neglect their children, can have their parental rights to their other children severed 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, 117 P.3d 795, 798 (App. 2005). When severance is based on abuse or neglect of another child, an adequate nexus must be established between the abuse or neglect of the other child and the risk of future abuse to a different child. Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 283, ¶ 1, 257 P.3d 1162, 1163 (App. 2011).
¶17 In this case, it remains undetermined who inflicted which of Daughter's numerous injuries. Regardless, the evidence clearly shows that two-month-old Daughter was severely abused in Mother and Father's care at a time when two-year-old Son was completely dependent on them as his primary caregivers. Even after Daughter's autopsy confirmed that she had been killed by blunt force head trauma, Mother persistently failed to explain how Daughter's injuries had occurred and instead offered several untenable theories -- including placing the blame on a toddler. And despite Father's admission to the police that he had caused some of Daughter's injuries in the course of performing CPR, Mother testified that she believed he had proven himself innocent of causing any of Daughter's other injuries.
¶18 Mother asserts that none of the hospital personnel who saw Daughter in the five days preceding her death made any mention of injuries, and argues that the evidence therefore was inadequate to show that she had failed to protect Daughter from abuse. However, Daughter's pediatrician testified that some of her nonaccidental rib fractures were at least a week old when she died, and that a doctor who saw her more than two days after she received them would have been less likely to notice. In the event Mother did not cause Daughter's injuries, trial testimony still established that she had failed to act when Daughter's rib fractures caused pain severe enough for an observant parent to realize something was wrong.
¶19 On appeal, Mother "essentially asks us to reweigh the evidence presented to the court and to replace its judgment with our own, something we will not do." Xavier R. v. Joseph R., 230 Ariz. 96, 100, ¶ 12, 280 P.3d 640, 644 (App. 2012). Rather, we conclude that reasonable evidence supports the juvenile court's finding that Mother "knew or reasonably should have known that a person was abusing or neglecting" Daughter. See A.R.S. § 8-533(B)(2). Her refusal to take any responsibility for Daughter's injuries supports an inference that she would be unable or unwilling to protect Son from future abuse or neglect.
CONCLUSION
¶20 For the foregoing reasons, we affirm.