Byron H. v. Dep't of Child Safety

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BYRON H., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.H., Appellees.

No. 1 CA-JV 21-0243

Court of Appeals of Arizona, First Division

January 13, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Nos. JS20691 JD40104 The Honorable Todd F. Lang, Judge

Denise L. Carroll Esq., Scottsdale By Denise L. Carroll Counsel for Appellant

Arizona Attorney General's Office, Mesa By Dawn R Williams Counsel for Appellee, Department of Child Safety

Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Maria Elena Cruz and Judge Samuel A Thumma joined.

MEMORANDUM DECISION

BROWN JUDGE

¶1 Byron H. ("Father") appeals the juvenile court's order terminating his parental rights to his son, A.H., born in August 2020. For the following reasons, we affirm.

BACKGROUND

¶2 Father and Sierra A. ("Mother") are A.H.'s biological parents. On the night of October 5, 2020, Mother went to work and Father cared for the child. The next morning, A.H. was admitted to a hospital after Mother came home from work and found him almost nonresponsive, with a bruise on his right eye and a small laceration on the top of his head. Father told Mother he accidentally dropped a shampoo bottle on A.H.'s face while giving him a bath, and he "might have squeezed [A.H.]" when they were sleeping in the same bed.

¶3 Testing revealed that A.H. had two skull fractures and acute subdural hemorrhages. A subsequent skeletal survey showed that A.H. had two healing rib fractures, a healing left tibia metaphyseal fracture, and a healing left humeral metaphyseal fracture. Doctors identified swelling and bruising of both eyes, bruising of the scalp with an abrasion, bruising of the abdomen, and a healing abrasion on the inner upper lip. These injuries were deemed to be "non-accidental trauma-based injuries."

¶4 On the same day of A.H.'s hospital admission, the Department of Child Safety ("DCS") and the Phoenix Police Department spoke with both parents about the injuries, and the parents reported that they were A.H.'s only caregivers. Both parents then completed drug tests, and as relevant here, Father tested positive for amphetamine, methamphetamine, cocaine, benzoylecgonine, m-hydroxycocaine, and THC metabolite. Both parents later admitted they had used methamphetamines while taking care of A.H.

¶5 Ten days later, A.H. was discharged from the hospital and placed with his maternal grandmother. DCS then filed a dependency petition as to both parents. As to Father, DCS alleged that he was "unwilling or unable to provide the child with proper and effective parental care due to physical abuse" or "failing to protect" the child from abuse. DCS further alleged that Father was unable to provide proper care due to substance abuse, noting "he would smoke methamphetamines outside the home, but then would be responsible for caring for his infant son while under the influence."

¶6 During a November 2020 hearing, the juvenile court ordered that both parents receive services, including a parent aide, substance abuse assessment and treatment, substance abuse testing, and transportation as needed. DCS petitioned for termination of Mother's and Father's parental rights shortly thereafter. DCS alleged in part that "Father has willfully abused" A.H. or "failed to protect" him from willful abuse under A.R.S. § 8-533(B)(2). It further alleged that continuing "the parent-child relationship would be detrimental" to A.H. because it would leave him in care for an indeterminate period given that he "does not have parents who are able to care for him free from physical abuse."

¶7 In a March 2021 report to the juvenile court, DCS explained in part that Father was resistant to services provided by TERROS and that he had tested positive for methamphetamine and THC for the majority of his random drug tests. DCS further expressed concern that "he is still resistant to accepting assistance with changing his behaviors." Also in March 2021, the juvenile court found A.H. dependent as to both parents after accepting their no contest pleas. The court ordered that DCS expedite Father's parent aide referral, as he had not received that service.

¶8 The court then held a termination hearing over a period of four days in April 2021. Father testified that he accidentally dropped the shampoo bottle on the child, and it landed on his right eye. Father surmised that A.H. received the fractures that day from Father rolling over and squeezing A.H. while sleeping, in addition to dropping the bottle on his head. Father could not explain how A.H. received rib fractures. Father testified that he tested positive for methamphetamine because he had smoked from a "cart pen" that had methamphetamine residue and from one time that he found and smoked a cigarette in his apartment complex that tasted like methamphetamine. The court also heard testimony from medical experts who opined that Father's explanation did not account for all of A.H.'s injuries, that the pattern of injuries was consistent with abuse, and that A.H. did not suffer from any abnormality that would account for his bruising or fractures, such as issues with bone fragility, blood clotting, or a bleeding disorder.

¶9 Addressing safety concerns, DCS case manager Valerie Padilla testified that Father had not acknowledged his substance abuse issue, and that continued substance abuse would impact his ability to parent. She also explained DCS's concerns about Father's physical abuse of A.H., and the "multiple stories" Father offered as to how A.H. was seriously injured. As to services, Padilla explained on cross-examination that although the juvenile court ordered DCS to "put in a referral for a parent aide," the referral was not made because Father tested positive for methamphetamine shortly after the court's order and services are "not a component" of the "physical abuse ground."

¶10 In its termination ruling, the juvenile court addressed the services DCS offered to both parents. The court noted in part that Father was provided with substance abuse treatment and counseling services, but that he had not completed that treatment and continued to use methamphetamine throughout the proceedings. The court found that DCS failed to comply with the order to provide Father with a parent aide and that while DCS may have been justified in not providing such a service due to his ongoing substance abuse, it should have requested relief from the court's order. The court concluded, however, that because services are not required when the alleged ground for termination is abuse, DCS's failure to provide a parent aide did not mandate denial of the petition.

¶11 The court then outlined the medical expert testimony and found that "Father's testimony regarding his ongoing drug use is not credible and his implausible explanation of the possible causes of the Child's various injuries is unpersuasive." The court further concluded that DCS had proven abuse, by clear and convincing evidence, as a ground for termination of Father's parental rights. As to Mother, the court found that DCS failed to prove neglect by clear and convincing evidence, noting that Mother demonstrated "significant rehabilitation and sobriety." In considering the child's best interests, the court noted that the child is doing well with his maternal grandparents. The court then focused on Mother's sobriety and engagement in caring for A.H., concluding that termination of parental rights was not in the child's best interests but did not specifically state whether it was making that finding for both parents.

¶12 DCS filed both a notice of appeal and a motion for clarification, requesting in part that the juvenile court clarify its best interests findings as to Father. DCS explained that while the court found a statutory ground for terminating Father's parental rights, it was unclear whether the court determined it was in the child's best interests to terminate Father's parental rights. DCS also asserted that if the court intended to deny the petition as to Father, its reasoning was not evident. In Father's response to the motion for clarification, he argued in part that DCS was improperly asking the superior court to "reweigh the evidence and change its ruling." This court stayed the appeal and revested jurisdiction with the juvenile court to allow that court to rule on the motion for clarification.

¶13 The juvenile court concluded that the motion for clarification was "well-taken," and treated it as a motion for reconsideration. The court issued an amended order, granting DCS's petition to terminate Father's parental rights. The court reiterated that it did not find credible Father's explanations relating to the child's injuries or his positive drug tests. The court thus concluded that DCS had presented clear and convincing evidence of abuse. The court also found by a preponderance of the evidence that termination of Father's parental rights was in A.H.'s best interests. Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶14 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,...