                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                             TINA T., Appellant,

                                      v.

           DEPARTMENT OF CHILD SAFETY, B.H., Appellees.

                            No. 1 CA-JV 14-0092
                             FILED 12-11-2014


           Appeal from the Superior Court in Maricopa County
                         Nos. JD22619, JS17302
              The Honorable Bradley H. Astrowsky, Judge

                                AFFIRMED


                                 COUNSEL

Maricopa County Public Advocate, Mesa
By Eric Devany
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety



                                 OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.


B R O W N, Judge:
                           TINA T. v. DCS, B.H.
                           Opinion of the Court

¶1             Tina T. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her daughter, B.H., on the grounds of
willful abuse under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(2).
Mother argues the court’s decision is not supported by reasonable evidence.
However, because she decided not to contest the allegations of the petition
to terminate, our review in this case is limited to determining whether the
Department of Child Safety (“DCS”)1 presented evidence demonstrating a
factual basis for the allegations. For the following reasons, we conclude that
the record contains such evidence, and therefore affirm.

                             BACKGROUND

¶2           Mother and Nicholas H. (“Father”)2 are the biological parents
of B.H., who was born in 2012. Mother’s two older children, A.N. and C.B.,
were born in 2002 and 2007, respectively. In January 2003, police and
emergency personnel responded to Mother’s apartment after a 9-1-1 call
reported that A.N., then three months old, was not breathing. A.N. later
died from injuries consistent with “shaken baby syndrome.”

¶3            When police questioned Mother about the incident, she
reported that A.N. was with her then-boyfriend, Pedro, and Mother was
not present because she was physically disciplining C.B. in a different room.
Mother also reported that both she and Pedro often disciplined C.B. by
spanking him and Pedro admitted to shaking A.N. In a later interview,
Mother admitted she had seen Pedro shake A.N. previously.

¶4            Mother was charged with one count of child abuse, a class 2
felony, relating to A.N.’s death. In March 2005, Mother pled guilty to
attempted child abuse, a class 3 felony. She was sentenced to one year in
prison and placed on lifetime probation, the terms of which prohibited any
contact with minor children. When Mother was released from prison in
2006, her probation was modified to permit supervised contact with C.B.




1      Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
For ease of reference, we refer to DCS throughout this decision even though
these proceedings commenced prior to the statutory change.

2      A motion to terminate Father’s parental rights is pending in the
juvenile court.


                                      2
                            TINA T. v. DCS, B.H.
                            Opinion of the Court

¶5           In August 2007, witnesses reported that Mother had
physically abused C.B. at a store by punching him in the face and dragging
him outside. Mother was indicted on two counts of child abuse and later
pled guilty to one count of child abuse, a class 6 felony. Mother was
sentenced to one year in prison along with reinstatement of the
probationary condition that she have no contact with minor children.

¶6           When Mother gave birth to B.H. in August 2012, DCS
removed the infant from Mother’s care but did not immediately seek court
intervention because B.H. had been placed in Father’s care. Mother and
Father remained in contact, however, and because Father did not follow the
established safety plan, DCS filed a dependency petition against both
parents, and B.H. was taken into care and placed with family members.

¶7            After the court found B.H. dependent as to Mother, DCS filed
its petition to terminate Mother’s parental rights to B.H., alleging that
Mother had “neglected and/or willfully abused a child or failed to protect
a child from neglect and/or willful abuse under A.R.S. 8-533(B)(2)” and that
termination was in the best interests of B.H. At the initial hearing, Mother
stated that she wished to contest the petition.

¶8             Mother appeared at the scheduled adjudication hearing, but
at the outset informed the court through counsel she no longer wished to
contest termination. After discussing with Mother the rights she would be
waiving, the court determined on the record that she knowingly,
intelligently, and voluntarily waived her right to a contested termination
hearing. Mother then left the courtroom, but her counsel remained and
participated in the hearing. The court also excused Mother’s probation
officer, who was prepared to testify as a witness for DCS.

¶9            DCS presented the testimony of DCS unit supervisor Shannon
Robinson, who testified that B.H. could not be reunited with Mother
because the terms of her probation prevented contact with any minor child.3
Robinson explained that Mother’s history of child abuse put B.H. at a risk
of abuse that could only be prevented by terminating Mother’s parental
rights because, despite receiving services relating to her first conviction for
attempted child abuse, she subsequently abused another child, resulting in
another felony conviction. Based on these facts, Robinson opined that
Mother posed a threat of harm to “[a]ny child in her care.” According to


3      On three occasions between November 2012 and August 2013,
Mother unsuccessfully requested that the superior court modify the terms
of her probation to permit supervised visits with B.H.


                                      3
                            TINA T. v. DCS, B.H.
                            Opinion of the Court

Robinson, B.H. was adoptable, thriving in her current placement with her
paternal aunt and uncle, and her best interests would be served by
terminating Mother’s parental rights.

¶10            After admitting various exhibits offered by DCS and
considering arguments from counsel, the court granted the request for
termination, explaining on the record that DCS had shown by clear and
convincing evidence that Mother willfully abused a child. The court found
that Mother (1) knew about the serious physical abuse to A.N. and failed to
protect him; (2) physically abused C.B. while Pedro was abusing A.N.; and
(3) physically abused C.B. in 2007. Based on these circumstances, the court
determined a nexus existed between prior abuse and the risk to B.H.
because Mother failed to correct her behavior after the first child abuse
incident and she has been on lifetime probation since her conviction in 2005.
The court also found that DCS proved by a preponderance of the evidence
that termination is in B.H.’s best interests. The court incorporated these
findings in a signed minute entry and Mother timely appealed.

                               DISCUSSION

¶11             Before a parent’s rights may be terminated, the juvenile court
holds an initial hearing, the purpose of which is to ensure service is
complete and to determine whether the parent contests termination. Ariz.
R.P. Juv. Ct. 65(A); A.R.S. § 8-535. If the parent wishes to contest the request
for termination, the court sets the matter for a termination adjudication
hearing. A.R.S. §§ 8-535(E), -537(A). The purpose of that hearing is to
determine whether the party seeking termination has met the burden of
proving a ground for termination by clear and convincing evidence and
proving termination is in the best interests of the child by a preponderance
of the evidence. Ariz. R.P. Juv. Ct. 66(A), (C). The presentation of evidence
at the hearing “shall be as informal as the requirements of due process and
fairness permit and shall generally proceed in a manner similar to the trial
of a civil action before the court without a jury.” Ariz. R.P. Juv. Ct. 66(D).

¶12           A parent, however, “may waive the right to trial on the
allegations contained in the motion or petition for termination of parental
rights by admitting or not contesting the allegations.” Ariz. R.P. Juv. Ct.
66(D)(1). “An admission or plea of no contest may be oral or in writing.”
Id. When accepting a parent’s “admission or plea of no contest[,]” the court
must proceed as follows:

       (a) Determine whether the party understands the rights being
       waived;



                                       4
                           TINA T. v. DCS, B.H.
                           Opinion of the Court

       (b) Determine whether the admission or plea of no contest is
       knowingly, intelligently and voluntarily made;

       (c) Determine whether a factual basis exists to support the
       termination of parental rights; and

       (d) Proceed with entering the findings and orders as set forth
       in subsection (F)[.]

Id. (emphasis added). If the party seeking termination has met its burden
of proof, Rule 66(F)(2)(a) requires the court to “[m]ake specific findings of
fact in support of the termination of parental rights and grant the motion or
petition for termination.”

¶13           Because Mother initially desired to contest the termination,
the juvenile court scheduled a contested termination adjudication hearing.
After Mother’s counsel informed the court that Mother no longer wished to
contest termination, the court informed Mother of the rights she would be
waiving and then determined she knowingly, voluntarily, and intelligently
waived such rights. Mother does not argue that she did not understand the
rights she waived nor does she contest the validity of her waiver. Nor does
Mother contend the court failed to make findings required under Rule
66(D)(1)(d) and (F)(2). Instead, Mother argues that no reasonable evidence
supports the court’s termination order. Specifically, she challenges (1) the
court’s finding that a sufficient nexus exists between the prior incidents of
abuse and the risk to B.H., and (2) the court’s determination that
termination is in B.H.’s best interests.

¶14           As a threshold matter, Mother’s arguments fail to recognize
she waived her right to a contested termination hearing when she chose not
to challenge the allegations of DCS’s petition and thereby entered her plea
of no contest. In doing so, she implicitly acknowledged that the procedures
for evaluating DCS’s uncontested petition would be substantially different
than the procedures the court and the parties would have followed had she
contested termination. Thus, Mother cannot challenge the sufficiency of the
evidence as if the juvenile court had conducted a contested termination
adjudication hearing. Rather, her right to appellate review is confined to
raising issues contemplated by the waiver procedure outlined in Rule
66(D)(1), including the existence of a factual basis. Construing Rule
66(D)(1) to permit Mother to assert a broad attack on the sufficiency of the
evidence would be contrary to her voluntary decision to enter a plea of no
contest and would inject uncertainty and delay in the proceedings at a point
when timely resolution of the matter is critical for the benefit of the child.



                                      5
                           TINA T. v. DCS, B.H.
                           Opinion of the Court

See Ariz. R.P. Juv. Ct. 36 (“The [termination] rules should be interpreted in
a manner designed to protect the best interests of the child, giving
paramount consideration to the health and safety of the child.”).

¶15            Addressing Mother’s challenge as an appeal from a contested
termination hearing would also be unfair to the other parties to the
proceeding, as well as the juvenile court, all of whom relied on Mother’s
knowing, voluntary, and intelligent decision to not contest the allegations
of the petition. We therefore construe Mother’s arguments on appeal as
presenting a narrow question of whether a factual basis exists to support
termination. Ariz. R.P. Juv. Ct. 66(D)(1)(c). Because our research has
revealed no case law involving a challenge to a factual basis in connection
with a no contest plea in a termination proceeding, we turn for guidance to
the analogous context of guilty or no contest pleas made by criminal
defendants, when the trial court also must determine whether a factual
basis exists for each element of the crime. Ariz. R. Crim. P. 17.3; State v.
Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994). The purpose of
requiring this limited evidentiary showing is to substantiate a guilty or no
contest plea and prevent conviction of an obviously innocent defendant
solely on the basis of the defendant’s unwillingness to contest the charges.
See State v. Johnson, 181 Ariz. 346, 349, 890 P.2d 641, 644 (App. 1995) (“A
factual basis is required for the purpose of shielding the innocent from
conviction, rather than to provide a back-door for defendants to obviate
finality by challenging their guilty pleas.”).

¶16           Similarly, the purpose of requiring the juvenile court to
determine whether a factual basis exists to support termination under Rule
66(D)(1) is to ensure that parents do not lose their parental rights solely
based on their unwillingness to contest the allegations of the petition. Cf.
In re Termination of Parental Rights of Brittany Ann H., 607 N.W.2d 607, 619
(Wis. 2000) (“We conclude that the legislature intended the circuit court to
hear testimony in support of the allegations because testimony safeguards
accurate fact-finding and protects the parents.”). Thus, simply because
parents decide not to contest a request for termination does not mean their
rights are automatically severed. Instead, the juvenile court must comply
with Rule 66(D)(1), which includes determining whether the party seeking
termination has presented evidence establishing the existence of a factual
basis to support the alleged grounds for termination. On appeal, our task
is to discern whether the juvenile court record includes evidence that, if
believed, would establish the statutory grounds for termination of Mother’s
parental rights.




                                     6
                            TINA T. v. DCS, B.H.
                            Opinion of the Court

¶17            DCS sought to terminate Mother’s parental rights under
A.R.S. § 8-533(B)(2), which provides for termination when a parent has
neglected or willfully abused a child. 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.” Id.
DCS alleged that Mother’s prior abuse of A.N. and C.B. supported
termination of her parental rights to B.H, who was born after those
incidents of abuse. Under § 8-533(B)(2), “parents who abuse or neglect their
children, or who permit another person to abuse or neglect their children,
can have their parental rights to their other children terminated even
though there is no evidence that the other children were abused or
neglected.” Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117
P.3d 795, 798 (App. 2005). 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. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶
16, 257 P. 3d 1162, 1165 (App. 2011).

¶18            The juvenile court found that DCS met its burden of proving
that Mother had willfully abused her children and there was a
constitutional nexus between the prior abuse and B.H. such that abuse
would likely occur again. DCS supervisor Robinson opined that because
Mother had abused (or was aware of the abuse of) her two older children,
she posed a threat of harm to any children in her care. This testimony,
together with the exhibits describing Mother’s involvement in the prior
incidents of abuse and the conditions of her probation, supports a finding
that DCS satisfied its obligation under Rule 66(D)(1) to establish a factual
basis supporting the statutory ground for termination.4 See Mario G., 227
Ariz. at 285, ¶ 16, 257 P. 3d at 1165 (affirming the juvenile court’s finding
that termination was appropriate because although child was born three
years after the incidents involving the prior abuse, a sufficient nexus existed
between the prior abuse and the risk that such abuse would occur to the
child).

¶19          Given Robinson’s testimony that B.H. was thriving in her
current placement, the record also supports the juvenile court’s finding that
termination was in the child’s best interests. See Audra T. v. Ariz. Dep’t of

4       The juvenile court did not specifically state that it had determined a
“factual basis” existed in support of DCS’s petition for termination. But
that finding is implicit in the court’s statements made on the record and in
its minute entry, where the court outlined the evidence presented and
found that DCS satisfied its burden of proof.


                                       7
                            TINA T. v. DCS, B.H.
                            Opinion of the Court

Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating
that juvenile court, in determining best interests, may properly consider
“whether an existing placement is meeting the needs of the child”); James S.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App.
1998) (stating that the juvenile court must find that the “child will benefit
from termination of the relationship or that the child would be harmed by
continuation of the parental relationship”). Therefore, the record plainly
indicates that DCS established a factual basis showing termination of
Mother’s parental rights was in B.H.’s best interests.

                              CONCLUSION

¶20           We affirm the juvenile court’s order terminating Mother’s
parental rights to her daughter, B.H.




                                     :ama




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