                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               JOSE N., Appellant,

                                         v.

  DEPARTMENT OF CHILD SAFETY, N.N., L.N., T.N., L.N., Appellees.

                              No. 1 CA-JV 15-0159
                                FILED 1-26-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD27991
                   The Honorable Connie Contes, Judge

                                   AFFIRMED


                                    COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
                            JOSE N. v. DCS, et al.
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1             Jose N. (“Father”) appeals the order terminating his parental
rights to four of his children. For the following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Father was married to Mother, and they had four children
(“the Children”). Mother also had an older child that she brought to the
relationship. Father’s step-daughter (“Daughter”) ran away on March 10,
2014, to her maternal grandmother’s (“Grandmother”) house. She told
Grandmother that, while Mother was at work, Father raped her twice that
day. Grandmother immediately called the Maricopa County Sheriff’s
Office (“MCAO”).

¶3               After interviewing Grandmother and Daughter, the
detectives went to Father’s house. No one answered the door, but Father
later fled, telling Mother he “[didn’t] want to go back to jail.” The detectives
subsequently obtained a warrant, located Father, and arrested him the next
day.

¶4            The Department of Child Services (“DCS”) took custody of
the Children and eventually filed a motion to terminate Father’s parental
rights to the Children. The juvenile court granted the motion, finding that
DCS had proven that Father had willfully abused Daughter, and that
termination was in the Children’s best interests. Father appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
8-235(A) and 12-2101(A)(1).2




1 “We view the facts in the light most favorable to upholding the juvenile
court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7,
225 P.3d 604, 606 (App. 2010) (citation omitted).
2 We cite to the current version of the statute unless otherwise noted.



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                            JOSE N. v. DCS, et al.
                            Decision of the Court

                                DISCUSSION

¶5            Father raises three arguments. First, he claims the evidence
was insufficient that he abused Daughter. Second, he contends termination
was not in the best interests of the children. Finally, he claims the juvenile
court violated his due process rights, warranting reversal of the termination
of his parental rights.

¶6             A parent has a constitutional right to raise his or her children,
see Santosky v. Kramer, 455 U.S. 745, 753 (1982), but that right is not absolute,
see Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005).
In order to terminate parental rights, DCS must prove and the juvenile court
must find, by clear and convincing evidence, the existence of at least one of
the statutory grounds stated in A.R.S. § 8-533. A.R.S. § 8-537; Kent K., 210
Ariz. at 281-82, ¶ 7, 110 P.3d at 1015-16. The court must also find by a
preponderance of the evidence that termination would be in the best
interests of the children. Kent K., 210 Ariz. at 288, ¶ 42, 110 P.3d at 1022.
And while we review de novo legal issues requiring the interpretation and
application of A.R.S. § 8-533, Mary Lou C. v. Ariz. Dep’t. of Econ. Sec., 207
Ariz. 43, 47, ¶ 9, 83 P.3d 43, 47 (App. 2004), “[w]e will not disturb the
juvenile court’s disposition absent an abuse of discretion or unless the
court’s findings of fact were clearly erroneous.” Maricopa Cty. Juv. Action
No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996).

A. Sufficiency of the Evidence

¶7           Father argues there was no “significant or reliable
 evidence” that he abused Daughter and notes that, at the time of the
termination hearing, he had not yet been convicted. We disagree.

¶8            Willful abuse of a child justifies termination of parental rights,
A.R.S. § 8-533(B)(2), and “includes serious physical or emotional injury.”
Id. Moreover, the statute “permits termination of parental rights to a child
who has not been abused or neglected, upon proof that the parents abused
or neglected another child.” Mario G. v. Ariz. Dep’t. of Econ. Sec., 227 Ariz.
282, 285, ¶ 15, 257 P.3d 1162, 1165 (App. 2011) (emphasis added) (citing
Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795, 798
(App. 2005)).

¶9          At the trial, and without objection, DCS introduced several
exhibits containing statements Daughter made after she told her
Grandmother about the abuse. Her statements were admissible under
Arizona Rule of Procedure for the Juvenile Court 45(E) because the time,



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                            JOSE N. v. DCS, et al.
                            Decision of the Court

content, and circumstances of her statements provide sufficient indicia of
reliability.

¶10           Daughter’s statements included an interview with a special-
victims-unit detective. She told the detective specific and graphic details
about Father raping her after he told the other Children to go outside,
including his use of force to make her comply and threatening her with
death if she told anyone. She also explained, with details, that afterwards
Father told her to shower and raped her again an hour later.

¶11           She had also told the same detailed story to her Grandmother
and boyfriend on March 10. Additionally, the results of her forensic
medical examination were consistent with her testimony, including the
injuries caused by Father. And her then six-year-old sister, who was still
inside the house, told a forensic interviewer that she saw Father pulling
Daughter by her hair, and that she heard Daughter crying and screaming
for “help.”

¶12           In addition, the documents revealed that Daughter told the
authorities that Father had also physically abused her; the most recent
episode occurred when Father beat her with a closed fist and “busted her
eye open,” leaving a scar above her left eye. Her statement about the
physical abuse was corroborated by Mother, Grandmother, and Daughter’s
grandfather.

¶13             “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence . . . .” Jordan C. v.
Ariz. Dep’t. of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009)
(internal quotation marks and citation omitted). Based on the record, there
was sufficient evidence for the court to conclude that Father willfully
abused Daughter. And because Arizona law does not require a conviction
to prove abuse, see Pima Cty. Juv. Severance Action No. S-2462, 162 Ariz. 536,
539, 785 P.2d 56, 59 (App. 1989), the court did not abuse its discretion by
finding there was sufficient evidence to terminate Father’s parental rights.

B. Best Interests

¶14           Father also contends the court erred in finding that
termination was in the best interests of the Children. He claims DCS failed
to show that reunification would be detrimental to the Children, and argues
that, because Mother’s rights were not terminated, the court should have
simply ordered supervised visitation. We disagree.




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                            JOSE N. v. DCS, et al.
                            Decision of the Court

¶15            First, we presume that “the interests of the parent and child
diverge because the court has already found the existence of one of the
statutory grounds for termination by clear and convincing evidence.” Kent
K., 210 Ariz. at 286, ¶ 35, 110 P.3d at 1020. And we give great weight to a
child’s interest in being in a safe, loving, and stable home. See id. at 287, ¶
37, 110 P.3d at 1021. Therefore, to establish best interests, DCS had to prove
that “the [Children] would benefit from a severance or be harmed by the
continuation of [their] relationship” with Father. See Maricopa Cty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations
omitted).

¶16             Here, Mother complied with the dependency case plan, had
the Children returned to her, and divorced Father. She was a witness at the
termination trial, and testified that his rights should be terminated because
“he raped [Daughter] . . . [and] I need to protect my other daughters.” The
juvenile court, as a result of her testimony and the other evidence,
concluded that termination was in the Children’s best interests because
DCS had proven that continuation of the relationship would be a detriment
to all five children because Father physically and sexually abused Daughter
and it would guarantee that all the children would be safe from him in the
future. We find no factual or legal error with the court’s conclusion that
termination of Father’s parental rights was in the best interests of the
Children.

C. Due Process Violations

¶17           Father argues the court violated his rights because Daughter
did not testify at trial, and because the court drew a negative inference
when he invoked his Fifth-Amendment rights at the termination hearing.
We disagree.

¶18            First, Father did not make these arguments below. But
“[b]ecause of the constitutional ramifications inherent in termination
proceedings,” we will still address his arguments for fundamental error.
See Monica C. v. Ariz. Dep’t. of Econ. Sec., 211 Ariz. 89, 94, ¶ 23, 118 P.3d 37,
42 (App. 2005). Fundamental error is “error going to the foundation of the
case, error that takes from the defendant a right essential to his defense, and
error of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982
(1984).




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                            JOSE N. v. DCS, et al.
                            Decision of the Court

¶19           Father claims he had a right to confront Daughter about her
allegations against him. He, however, did not call her to testify, try to
subpoena her, and never asked the juvenile court to cross-examine
Daughter. More importantly, the constitutional right to confront an accuser
“has no direct application in proceedings to terminate parental rights,
which are essentially civil in nature.” Maricopa Cty. Juv. Action No. JS-7499,
163 Ariz. 153, 157, 786 P.2d 1004, 1008 (App. 1989).

¶20           Father also contends that the juvenile court erred by drawing
negative inferences after he invoked his Fifth Amendment right not to
incriminate himself during his cross-examination. The court did not err.
Although Father had the “constitutional right to refuse to answer
potentially incriminating questions,” see Montoya v. Superior Court, 173 Ariz.
129, 130, 840 P.2d 305, 306 (App. 1992), a court, in a civil case, can “draw a
negative inference from” the invocation of the Fifth Amendment. Id. at 131,
840 P.2d at 307; see also Wohlstrom v. Buchanan, 180 Ariz. 389, 391 n.2, 884
P.2d 687, 689 n.2 (1994); Castro v. Ballesteros-Suarez, 222 Ariz. 48, 53, ¶ 20,
213 P.3d 197, 202 (App. 2009).

                              CONCLUSION

¶21           We affirm the termination of Father’s parental rights.




                                 :ama




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