Connie S. v. ADES et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CONNIE S., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, JESSICA S. CODY, W, ) ) Appellees. ) _______________________________) DIVISION ONE FILED: 02/092010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-JV 09-0120 DEPARTMENT E MEMORANDUM DECISION Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD15381 The Honorable J. Richard Gama, Judge AFFIRMED Janell A. McEachern Attorney for Appellant-Mother Chandler Terry Goddard, Attorney General By David M. Osterfeld, Assistant Attorney General Attorney for Arizona Department of Economic Security Phoenix G E M M I L L, Judge ¶1 Connie S. appeals the juvenile court s order terminating her parental rights to thirteen-year-old J.S. and six-year-old C.W. Finding no error, we affirm. Facts and Procedural History ¶2 We view the evidence in the light most favorable to upholding the juvenile court s ruling. See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000). ¶3 In December 2006, J.S. reported to her school nurse that her mother had hit her repeatedly with a baseball bat. There were bruises on J.S. s forearms, outer-thighs, and hips. Child Protective Services ( CPS ) was notified, and J.S. was examined by a doctor who noted she had parallel linear areas of bruising that are characteristic of injury inflicted with a linear implement. He concluded [t]he constellation of cutaneous injuries is highly suggestive of abuse and [t]he appearance of these bruises is consistent with blunt force trauma from an object, possibly a bat as has been alleged. ¶4 CPS removed J.S. and C.W. from Connie s care, and the Arizona Department petition alleging Revised Statutes of the Economic children ( A.R.S. ) Security ( ADES ) filed a were dependent under Arizona section 8-201(13) (Supp. 2009). Specifically, the petition alleged Connie had physically abused J.S., neglected her medical needs, and neglected C.W. s dental 2 needs.1 On December 22, 2006, the juvenile court found both J.S. and C.W. were dependent as to Connie. ¶5 The initial plan children with Connie. services to services, help visits necessary. the case was to reunify the The State provided Connie with several fulfill individual classes, for this therapy, with J.S. plan, including psychological and C.W., and parent exams, aide parenting transportation if She also participated in urinalysis testing, which was discontinued after she consistently tested negative. successfully completed the parenting classes and Connie individual therapy, but she did not successfully complete the parent aide services. ¶6 The parent Connie s first aide parent services aide, Lori began in Williams, January assigned 2007. her educational modules on effective parenting, but she failed to complete the assigned lessons. during supervised visits was Her contact with the children sometimes inappropriate. For example, Connie once told J.S. that she was coming home, and on several occasions Connie failed to bring games or activities for the children. During one visit with C.W., Connie kissed a blister on his tongue and then ran her tongue up and down [his] face. The children told Williams they wanted to leave the 1 Connie admitted she had stopped giving J.S. her prescribed medication, and the record indicates C.W. s front teeth were rotted and needed extensive dental work. 3 visits early and were concerned about being physically abused. C.W. exhibited anxiety and became physically ill around visitation time. ¶7 In February 2008, the juvenile court assigned Connie a second parent aide, Linda Apostolakos. Apostolakos became the parent aide for C.W., while Williams remained the parent aide for J.S. Connie Apostolakos. She performed significantly completed Apostolakos assigned, certificate of completion. educational her reached the objectives, Her interactions better modules and with under that earned C.W. a were appropriate, and C.W. had a good time during the visits and, apart from the first few visits, showed no signs of anxiety. Apostolakos recommended that Connie have increased visitation time with C.W., but CPS denied the request because C.W. was stressed out at the visits, an assessment Apostolakos did not agree with. ¶8 In May 2008, the juvenile court granted the State s request to change the case plan to severance and adoption. ADES then filed a petition to terminate Connie s parental rights to the children on the following grounds: 1) Connie had willfully abused a child; 2) she was unable to discharge her parental responsibilities due to mental illness, and 3) the children had been in an out-of-home placement for fifteen months or longer and it was likely Connie would not be able to exercise proper 4 parental care in the near future. ¶9 The juvenile court conducted a nine-day severance hearing, receiving testimony from Connie, Williams, Apostolakos, Connie s two therapists, a psychologist who evaluated J.S. and C.W., Connie s sister, and the CPS case manager. Connie s twenty-one-year-old daughter, At the conclusion of the hearing, the court found that the State had proven all three grounds for termination by clear and convincing evidence and that termination was in the children s best interest. ¶10 Connie timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007) and 12-2101(B) (2003). Analysis ¶11 A parent s right to care, custody, and control of her children is fundamental, Linda V. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 76, 78, ¶ 6, 117 P.3d 795, 797 (App. 2005), but it is not absolute. 684. Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at In Arizona, termination of parental rights is governed by A.R.S. § 8-533 (Supp. 2009). Id. at 249, ¶ 12, 995 P.2d at 685. To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child. Id. ¶12 The juvenile court found three statutory grounds for 5 severing Connie s parental rights. If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). Connie does not challenge the court s finding that severance was in the children s best interest, and we do not address that finding. ¶13 The juvenile court first found that severance was warranted under § 8-533(B)(2). Under that subsection, parental rights can be terminated willfully abused a child. when the parent has A.R.S. § 8-533(B)(2). neglected or Abuse is defined in Title 8, in pertinent part, as the infliction or allowing of physical injury, impairment of bodily function or disfigurement. ¶14 A.R.S. § 8-201(2) (Supp. 2009). The record in this case contains sufficient evidence of abuse. The juvenile court heard testimony that J.S. told her school nurse that Connie had hit her repeatedly with a baseball bat. CPS reports following the incident described bruising on Jessica s body, and the doctor who examined her concluded the bruises were highly suggestive of abuse and consistent with blunt force trauma from an object, possibly a bat. ¶15 A psychologist who examined J.S. diagnosed her as a victim of physical abuse. During the examination, J.S. told him 6 that her mother had hit her, and he found J.S. exhibited hyper vigilance, which he testified can be indicative of past physical abuse. In addition, J.S. told parent aide Williams that had her mother hit [her] with a stick, and on one occasion she told Williams to not tell Connie she had been bad because she was afraid for her mom to know because her mom would hit her. ¶16 Connie implicitly argues in her opening brief that the court erred in finding clear and convincing evidence of abuse in light of testimony from Connie s sister and Connie s eldest daughter that J.S. did not have a reputation for truthfulness. And Connie points out that she has consistently denied abusing J.S. and that, following the report of abuse, the police searched her home for a baseball bat and found none.2 ¶17 Although there was evidence to the contrary, we find there was sufficient evidence to support the juvenile court s finding of abuse. We do not reweigh the evidence. See Lashonda M. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 77, 81, ¶ 13, 107 P.3d 923, 927 (App. 2005). 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 resolve disputed facts. 2 Ariz. Dep t of Econ. The CPS case worker testified, however, that Connie reported she did indeed possess a small collector s bat. 7 had Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). We do not review the record on appeal to determine if we would have reached different conclusions if we were the triers of fact. Instead, we review to see if sufficient evidence supports the findings of the juvenile court. Because there is such evidence here, we conclude that the juvenile court did not err in finding clear and convincing evidence of abuse. ¶18 A parent who abuses one child can have their parental rights to their other child terminated even though there is no evidence the other child was abused. ¶ 14, 117 P.3d at 798. Linda V., 211 Ariz. at 79, Because there was sufficient evidence that Connie abused J.S., the trial court did not err by also severing Connie s parental rights to C.W.3 ¶19 Having concluded that the See id. evidence supports the juvenile court s finding of abuse, we need not address the other two statutory bases for severance. 280, ¶ 3, 53 P.3d at 205. See Jesus M., 203 Ariz. at And Connie does not challenge the best interests finding. ¶20 After reviewing this record and the arguments of the parties, we acknowledge there was much evidence showing Connie had made significant progress toward her reunification goals. Her parent aide Apostolakos and her individual therapists all 3 We note that a psychologist who evaluated C.W. found possible physical abuse against C.W. And C.W., like J.S., reported to Williams that he had been hit with a stick. 8 testified Connie had learned the necessary parenting skills and that reunification should be the case plan. Moreover, Connie had achieved full-time employment and seemingly had established safe and stable housing for her children. There is other evidence supporting the court s decision, however, as summarized in ¶¶ 3, 6, 14, and 15 supra. On this record, we must affirm. Conclusion ¶21 For the foregoing reasons, we affirm the juvenile court s order terminating Connie s parental rights to J.S. and C.W. ______/s/____________________ JOHN C. GEMMILL, Judge CONCURRING: _____/s/______________________________ SHELDON H. WEISBERG, Presiding Judge _____/s/______________________________ PHILIP HALL, Judge 9

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