Clint H. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CLINT H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, X.H., X.H., Appellees.
No. 1 CA-JV 20-0352
FILED 8-31-2021
Appeal from the Superior Court in Maricopa County
No. JD 39247
JS 20498
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
John L. Popilek, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee, Department of Child Safety
CLINT H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.
B R O W N, Judge:
¶1 Clint H. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his sons, L.H., born in 2018, and I.H.,1
born in 2019. Because reasonable evidence supports the order, we affirm.
BACKGROUND
¶2 Father and Illana J. (“Mother”) are the biological parents of
I.H. and L.H. Mother is not a party to this appeal. The Department of Child
Services (“DCS”) first became involved in March 2020, when Father and
Mother (collectively “Parents”) brought I.H. to Phoenix Children’s Hospital
due to a swollen head and seizures.
¶3 While at the hospital, Mother disclosed that I.H. had a history
of breathing problems. She and Father identified five instances in early
2020 when the child had difficulty breathing, including the March incident.
Mother reported she thought the child had died during one of those
episodes. During the March incident, I.H. turned blue and Mother called
Father at work to tell him what happened. Father drove home and took
Mother and I.H. to the hospital. Due to the hospital’s COVID-19
procedures, only one parent was allowed in the building with I.H., so
Father waited outside. A doctor and a nurse practitioner determined I.H.
had many injuries, including: a large skull fracture, evidence of two
separate brain bleeds, a history of potential seizures (the breathing
episodes), evidence that his arm had been previously broken in two places,
ear bruising, and a torn upper frenulum.
¶4 The “frenulum” is a piece of connective tissue that extends
from the inside surface of the upper lip to the upper portion of the gum on
the top part of the jaw. A doctor who treated I.H. explained that a torn
1 Because the children’s first names begin with the same letter, we
distinguish them by their middle initials.
2
CLINT H. v. DCS, et al.
Decision of the Court
frenulum is highly suggestive of abuse because it does not tear without
severe force.
¶5 I.H. was also severely malnourished and dropped from the
70th percentile for weight to less than the first percentile for weight, gaining
only a third of a pound in 19 weeks. Medical staff described the child as so
thin that he had loose skin around his body, protruding bones, and a visibly
swollen head. A nurse practitioner also noted I.H. had injuries usually
present with traumatic brain injuries and common with abuse including,
thrombosed bridging veins, cervical ligament swelling, and a nasal
hematoma. Hospital staff contacted the police, and an officer arrived after
Mother left. Police then went to Parents’ home to execute a search warrant.
Mother claimed I.H.’s injuries resulted from falling off a bed a few days
earlier.
¶6 I.H. had been born four months premature and spent the first
“two to three months” of his life at the hospital. After he was released,
Parents soon stopped taking I.H. to his appointments because they felt the
hospital staff did not respect their decisions regarding the child. A nurse
practitioner reported that I.H. was given pear juice, water, and baby food
starting at seven months of age (adjusted age of three months) instead of
formula. Once I.H. received formula, he began gaining weight.
¶7 In connection with the March incident, medical staff also
evaluated L.H. and discovered his growth rate had slowed significantly. In
just five months, L.H. dropped from the 95-97th to the 75-80th percentile in
weight and gained only one pound five ounces, which is considered
extremely slow for a 19-month-old child.
¶8 After DCS took custody of both children, I.H. was released
from the hospital and DCS filed a dependency petition. About a month
later, DCS petitioned for termination, alleging Father either willfully
abused and neglected the children or failed to protect them from abuse and
neglect. The court held a consolidated dependency/termination hearing
over the course of three days, hearing testimony from numerous witnesses,
including a detective, hospital social worker, DCS contracted case worker,
doctor, nurse practitioner, hospital dietician, and the Parents. The juvenile
court granted the dependency petition and the termination petition, finding
“clear and convincing evidence that [I.H.] was abused and neglected by his
parents, or that they were aware of the abuse and neglect and failed to
protect him.” The court also found clear and convincing evidence that L.H.
would be at risk of future harm. Father timely appealed and we have
jurisdiction under A.R.S. § 8-235(A).
3
CLINT H. v. DCS, et al.
Decision of the Court
DISCUSSION
¶9 To terminate parental rights, a court must find (1) by clear and
convincing evidence that at least one statutory ground in A.R.S. § 8–533 has
been proven, and (2) by a preponderance of the evidence that termination
is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety, 240 Ariz.
282, 286, ¶ 15 (App. 2016). We will affirm an order terminating parental
rights so long as reasonable evidence supports the order. Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). “The 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
make appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002).
¶10 When seeking termination based on abuse or neglect, DCS
must prove a parent “has neglected or wilfully abused a child. This abuse
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.” A.R.S. § 8–533(B)(2).
¶11 Father argues I.H.’s injuries were not the result of any
intentional or willful abuse; at most, there were issues with the care of a
complicated child that could have been easily resolved through additional
training. Father is essentially asking us to reweigh the evidence, which we
will not do. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018)
(citations omitted) (“The resolution of conflicting evidence is ‘uniquely the
province of the juvenile court’ . . . even when ‘sharply disputed’ facts
exist.”). According to medical staff who examined I.H., he was so thin that
“you could see his bones,” he had loose skin, he was cachectic (muscle
wasting), and his head was visibly swollen. The doctor and nurse
practitioner both testified that I.H.’s prematurity would not explain any of
the injuries. The juvenile court found that Parents had either abused and
neglected I.H., or they were aware of the abuse and neglect but refused to
protect him. The evidence supports this finding, and the court did not err
in determining that the injuries were not attributable to I.H.’s premature
birth.
¶12 Father also contends DCS failed to prove neglect or abuse
because he was not the primary caretaker and was away from the home at
work during most of the breathing episodes and when I.H. fell off the bed.
Father suggests he could not have reasonably been expected to know I.H.
needed medical care.
4
CLINT H. v. DCS, et al.
Decision of the Court
¶13 Both children, however, were in the sole care of Mother and
Father. DCS did not need to prove which parent abused the child; instead,
it could show that either Father abused the child, or he knew or should have
known that Mother did. See generally Sandra R. v. Dep’t of Child Safety, 248
Ariz. 224 (2020) (affirming termination without deciding which parent
caused the abuse). As the juvenile court explained, it may have been
possible for any of these injuries to occur and for Father not to have caused
them or not have known they were cause for concern. But the chance of all
these things happening and Father not causing them or knowing about
them is “miniscule to nil.” And while Father may have been at work during
most of the breathing episodes, he was told about them and was home
during one of them. Further, the treating doctor testified I.H.’s swollen
head was apparent to a lay person. The treating nurse practitioner also
testified that a reasonable person would have sought medical attention for
I.H. based solely on his general appearance due to malnourishment. Father
was not excused from his parental responsibilities simply because Mother
was the primary caretaker. Thus, the court did not err in terminating
Father’s parental rights to I.H. on grounds of abuse and neglect.
¶14 Citing Sandra R., Father argues DCS failed to prove any
ground of severance as to L.H. because there were no signs L.H. was abused
or neglected. “[T]o terminate parental rights to children who exhibit no
evidence of neglect or abuse, under § 8-533(B)(2), the juvenile court must
find during the parental unfitness inquiry, by clear and convincing
evidence, that there is a risk of harm to those children.” Sandra R., 248 Ariz.
at 228, ¶ 17. The court found that “at a minimum” Father failed “to
recognize the existence or importance of severe injuries and
malnourishment of” I.H. The court also determined “[t]he evidence is clear
and convincing that Father lacks the sort of protective capacity that is
necessary to keep [L.H.] safe.” The record supports these findings. Given
Father’s inability or unwillingness to protect I.H. from abuse and neglect,
and recognizing the severity of his injuries, the court did not err in finding
there was a risk of harm to L.H.
¶15 Lastly, Father summarily argues DCS failed to provide him
with services that would address any issues he had and enable him to
reunite with L.H. Because Father did not object in the juvenile court to the
adequacy of the services he was provided, he has waived the right to
challenge on appeal the juvenile court’s finding that DCS made diligent
efforts to provide reunification services. See Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179, ¶ 16 (App. 2014). In any event, reasonable
evidence supports the court’s finding. Initially, Father declined all services,
aside from visitation, and he waited several months before indicating he
5
CLINT H. v. DCS, et al.
Decision of the Court
was willing to participate. At the time of the evidentiary hearing, parent
aide services had not been started, although a referral had been made. The
delay in services, or the limited offering of services, was largely attributable
to Father’s decision to initially decline to participate. Thus, we will not
overturn the court’s rulings based on Father’s assertion that DCS failed to
make diligent reunification efforts.
CONCLUSION
¶16 We affirm the juvenile court’s order terminating Father’s
parental rights to L.H. and I.H.
AMY M. WOOD • Clerk of the Court
FILED: AA
6