Opinion
No. 1 CA-JV 15-0238
01-28-2016
CLEMENTE L., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.X., J.X., F.X., J.X., M.X., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD20531
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 Appellant Clemente L. ("Father") appeals the juvenile court's order terminating his parental rights to KX, JX, FX, JX, and MX (collectively, the "Children"). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Lucero L. ("Mother") are the biological parents of KX, born in August 2003; JX, born in December 2006; FX, born in April 2008; JX, born in March 2010; and MX, born in January 2013. Mother is also the biological mother of IX, born in October 2001. Father and Mother began to date when IX was one month old, and Father helped raise IX.
Mother's parental rights as to IX and the Children were also terminated. Mother is not a party to this appeal.
¶3 In September 2013, IX told Mother and a neighbor that Father touched her inappropriately. IX was eleven years old at the time of the incident. When the police interviewed IX, IX said she was "forced to have relations [without] knowing" and that the last time "something happened" was two or three weeks prior. IX said she was sleeping next to her three-year-old brother JX when she "felt pain in the spot she uses to pee" and awoke to find Father on top of her. When police arrived and interviewed IX, Father's whereabouts were unknown because he had recently moved out of the family home. The police investigation of the incident was rendered pending due to Father's unknown location. Later, it was revealed that Father had left for Mexico.
¶4 Father returned to live with Mother, the Children, and IX sometime between September 2013 and March 2014. In March 2014, a neighbor called the police and said he saw a man molesting a girl in an apartment. The neighbor took pictures of the incident from outside the apartment through a window. The photos showed Father's foot apparently touching the buttocks and vulva area of IX, though it was not entirely clear whether the foot was actually touching IX's buttocks and vulva due to the angle of the photo. Some of the photos also showed fifteen-month-old MX on the couch next to IX while the alleged molestation occurred. When the police arrived, IX made conflicting statements regarding her recollection of the event, but she also made statements about the 2013 incident that were consistent with her previous statements.
¶5 After the 2014 incident, the police conducted forensic interviews of KX and IX, and a forensic medical examiner performed a "rape kit" examination of IX. The physical examination results were normal but did not preclude the possibility of genital contact, and examination of the external genital swabs and IX's clothing identified a trace amount of spermatozoa. Although the DNA sample taken from the genital swabs contained too small an amount of sperm for an exact identification of the sperm's source, DNA analysis showed that "neither [Father] nor any of his paternally related male relatives . . . [could] be excluded as the contributor of [the] DNA." Father was the only adult male in the home at the time of the 2014 incident.
¶6 The Department of Child Safety ("DCS") took the Children into temporary custody and filed a dependency petition immediately after the 2014 incident. The juvenile court found the Children dependent as to Father in April 2014. DCS moved to establish a case plan of severance and adoption for Father in June 2014, alleging that Father had "willfully abused a child or failed to protect a child from willful abuse so as to cause a substantial risk of harm to a child's health or welfare." See Ariz. Rev. Stat. ("A.R.S.") §§ 8-201(2) (Supp. 2015), -533(B)(2) (Supp. 2015).
¶7 The State charged Father with two counts of sexual conduct with a minor and one count of child molestation. As of the contested severance hearing, the charges were pending trial and Father was incarcerated.
¶8 At the contested severance hearing, Father invoked the Fifth Amendment in response to all questions about the 2013 and 2014 incidents. See U.S. Const. amend. V; see also Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000) ("[T]he Fifth Amendment's protections . . . apply to civil proceedings."). Both the DCS case manager and the case agent from the Phoenix Police Department testified that they believed Father had abused IX and that all five of the Children were at risk of abuse in Father's care. The DCS case manager also opined that severance was in the Children's best interest due to the allegations against Father and the Children and IX's placement in a suitable foster home.
¶9 In July 2015, the juvenile court terminated Father's parental rights on the grounds that Father "willfully abused a child or failed to protect a child from willful abuse so as to cause a substantial risk of harm to a child's health or welfare" pursuant to A.R.S. §§ 8-201(2) and -533(B)(2). The court found that Father had sexually abused IX on at least two occasions and that a reasonable nexus between Father's molestation of IX and the risk of harm to the other five children existed. The court based its "nexus" finding on Father's history of sexual abuse, including Father's admission at trial that he had impregnated at least two other under-age girls; KX's report that Father had previously touched him inappropriately; and Father's exposure of least two of the Children to his abuse of IX. The court concluded that termination of Father's parental rights to the Children was in the Children's best interest.
"When the grounds for termination of a parent's rights to one child are based on abuse of another child, DCS must show a constitutional 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).
¶10 Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2014).
DISCUSSION
¶11 "Parents have a fundamental right to raise their children as they see fit, but that right is not without limitation." Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). To justify severance of the parent-child relationship, the State must prove one of the grounds for severance in A.R.S. § 8-533 by clear and convincing evidence. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Additionally, the State must prove by a preponderance of the evidence that severance of the relationship is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); see also A.R.S. § 8-533(B). If we find sufficient evidence for one ground for severance, "we need not consider whether the trial court's findings justified severance on the other grounds announced by the court." Michael J., 196 Ariz. at 251, ¶ 27.
¶12 Because the juvenile court is in the best position to weigh evidence and judge credibility, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶13 One of the grounds for severance is "neglect[ing] or willfully abus[ing] a child." A.R.S. § 8-533(B)(2). "Abuse" includes sexual conduct with a minor and child molestation pursuant to A.R.S. §§ 13-1405 (Supp. 2015) and -1410 (2010), respectively. A.R.S. § 8-201(2)(a).
¶14 Father challenges the sufficiency of the evidence, arguing that the evidence related to the 2014 incident was insufficient to support the juvenile court's finding that Father "neglected or willfully abused a child." We disagree.
Father does not challenge the juvenile court's best interests or reasonable nexus findings so we do not address them here. The State argues in part that because Father does not contest the sufficiency of the evidence for the 2013 abuse, Father's arguments about the 2014 abuse are moot. We do not address the mootness argument because the evidence of each alleged act of abuse is sufficient independently to support the court's decision to sever Father's parental rights. --------
¶15 The police interviews with IX and the accompanying police reports contain IX's accounts of the 2013 and 2014 incidents. See A.R.S. § 8-237 (2014) ("[O]ut of court statements . . . of a minor regarding acts of abuse or neglect perpetrated on him are admissible for all purposes in any . . . termination of parental rights proceeding under this title . . . ."). Although IX made inconsistent statements regarding the 2014 incident, her statements about the 2013 incident alone are sufficient to support the juvenile court's severance findings. Regarding the 2013 incident, IX stated that she was sleeping with her little brother JX when she "felt pain in the spot she uses to pee." She said that when she awoke, Father was on top of her and told her to "shhh," Father's body was moving "back and forth," and she felt something "going in and out of [her]" that "felt like getting cut with a knife but bigger." Later, when interviewed after the 2014 incident, IX made statements consistent with her statements from 2013.
¶16 In addition to IX's statements, there was sufficient evidence for the juvenile court to conclude that Father had abused IX in 2014. The photos of the 2014 event, coupled with the testimony of IX, the witness who took the photos, and the fact that Father was the only adult male in the home at the time of the abuse, all support the court's conclusion. Although the DNA sample taken from the 2014 genital swabs contained too small an amount of sperm for an exact identification of the sperm's source, DNA analysis showed that "neither [Father] nor any of his paternally related male relatives . . . [could] be excluded as the contributor of [the] DNA." Finally, Father invoked the Fifth Amendment protection at the severance hearing to avoid answering any questions about either incident of abuse, allowing the court to make a negative inference. See Glanzer, 232 F.3d at 1264 ("[I]n civil proceedings adverse inferences can be drawn from a party's invocation of this Fifth Amendment right."). Based on this record, sufficient evidence existed to support the court's finding that Father had willfully abused IX in 2014 in the presence of one of the Children.
CONCLUSION
¶17 Having found sufficient evidence to support the juvenile court's findings, we affirm the order to terminate Father's parental rights to the Children pursuant to A.R.S. § 8-533(B)(2).