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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                         MOHAMMAD K., Appellant,

                                         v.

   DEPARTMENT OF CHILD SAFETY, C.C., J.O., J.J., C.K., N.K., M.K.,
                        Appellees.

                              No. 1 CA-JV 15-0401
                                 FILED 7-28-16


            Appeal from the Superior Court in Maricopa County
                              No. JD511307
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
                      MOHAMMAD K. v. DCS, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Mohammad K. (“Father”) appeals from the superior court’s
order terminating his parental rights to three of his children. For reasons
that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Father and Channtell K. (“Mother”) began their relationship
in 2010. Mother had three older children from previous relationships—
C.C., J.O., and J.J.—who lived with the couple; Father had four children
from previous relationships who lived out of state. Mother and Father are
the biological parents of C.K., born in March 2012, N.K., born in March 2013,
and M.K., born in December 2014.

¶3            In late August 2013, Father took N.K. to the hospital because
the child’s arm was limp and swollen. X-rays showed that N.K. had
suffered multiple fractures consistent with non-accidental trauma and
potentially indicative of abuse: an acute fracture to N.K.’s right elbow, a
healing fracture to his right forearm, healing fractures to the back of two
ribs, and a healing fracture to his lower right leg. The combination of rib
and leg fractures particularly suggested abuse.

¶4            When Father and Mother could not provide an explanation
for the five-month-old child’s multiple broken bones, the hospital contacted
the Department of Child Safety (“DCS”), and DCS took N.K. and the older
children into care. DCS took M.K. into care immediately after his birth in
December 2014.

¶5            The hospital performed additional testing to find the cause of
N.K.’s fractures, but the results did not support any medical cause (e.g.,
nutrient deficiencies or bone abnormalities). A repeat x-ray in September
showed another fracture to N.K.’s upper right leg and a possible rib
fracture, which the doctor posited could have occurred before N.K.’s
removal, and simply became more clearly visible over time as they began
to heal. Subsequent x-rays in February and November 2014—after N.K.


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                      MOHAMMAD K. v. DCS, et al.
                         Decision of the Court

had been in an out-of-home placement for a matter of months—showed no
new fractures.

¶6               The older children also showed signs of abuse. C.C. told a
police officer that Mother and Father hit the children with a belt as
punishment. C.C. also exhibited fear behavior consistent with having
witnessed abusive situations. J.O. similarly indicated that he would be
“whooped with a belt” as punishment, and he had several long, linear
hyperpigmented marks on his legs and a mark on his temple that suggested
patterned injuries resulting from impacts with a stick or the side of a belt.
He also exhibited an abnormal fear of belts, suggesting previous trauma
involving a belt. J.J. stated that Father “‘whoops’ him with a stick all over.”
Like J.O., J.J. had several linear and curvilinear marks and scars on his back,
buttocks, and thighs, suggesting patterned injuries resulting from non-
accidental trauma, consistent with being hit with a stick. J.J. exhibited fear
of belts and sticks, and C.K. was afraid of belts.

¶7            DCS sought to terminate Father’s parental rights to C.K.,
N.K., and (after his birth) M.K., as relevant here, on grounds that he had
willfully abused a child or had failed to protect a child from willful abuse.
See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2).1 At the severance trial, Father
acknowledged using physical discipline—“whooping”—on the children,
although he characterized it as a last resort. He stated that he would spank
the children with his hand, not an object, but admitted hitting each child
with a belt once. He also testified that he and Mother shared responsibility
for punishing the children equally, and that although Mother also used
physical punishment on a few occasions, “[s]he never crossed the line.”
Mother acknowledged “whooping” the children with a belt, but only
approximately four times.

¶8            Father testified that he was the primary caretaker of the
children after N.K. was born, but had hired a babysitter for about two
weeks immediately before N.K.’s fractures were discovered. Father stated
that he had no idea how N.K. had been injured, although he noted that N.K.
had been born premature. He also noted that, beginning at two or three
months old, N.K. would cry and scream in pain when being picked up, but
that the doctor thought it was related to gas or bowel issues. Father
acknowledged pleading guilty in 2008 to corporal injury to one of his other,
out-of-state children, although he denied actually hitting that child.



1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                        MOHAMMAD K. v. DCS, et al.
                           Decision of the Court

¶9             Mother and Father presented a report from an expert who
concluded N.K. was not a victim of child abuse, and that his fractures could
be explained medically by temporary bone fragility. A board certified child
abuse pediatrician testified to the contrary, however, stating that temporary
brittle bone is not a legitimate medical condition and that N.K.’s fractures
were highly specific for child abuse. The pediatrician further testified that
none of the follow-up testing that was conducted suggested any bone
abnormalities that would explain N.K.’s fractures, and that the absence of
additional fractures after N.K. was removed was inconsistent with a genetic
condition causing bone fragility.

¶10           The superior court found grounds for termination based on
willful abuse or failure to protect from willful abuse, found that severance
would be in each child’s best interests, and terminated Father’s parental
rights to C.K., N.K., and M.K.2 Father timely appealed, and we have
jurisdiction under A.R.S. § 8-235.

                                 DISCUSSION

¶11             The superior court may terminate the parent–child
relationship if there is clear and convincing evidence of at least one
statutory ground for severance and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8–533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the superior court’s
severance ruling for an abuse of discretion, deferring to the court’s
credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).




2        At the same hearing, the court found M.K. to be dependent as to
Mother and Father. Father does not challenge the dependency finding on
appeal.
         The court found additional grounds for severance as to C.K. and
N.K. based on 15 months’ time in care under A.R.S. § 8-533(B)(8)(c). We
need not address the ground because we affirm on the basis of abuse or
failure to protect. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251,
¶ 27 (2000).
         The superior court also terminated Mother’s parental rights to C.C.,
J.O., J.J., C.K., N.K., and M.K. Although she appealed the severance ruling,
this court later dismissed her appeal after her attorney certified that he had
found no non-frivolous issues to raise.


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                      MOHAMMAD K. v. DCS, et al.
                         Decision of the Court

¶12           Under A.R.S. § 8-533(B)(2), severance may be justified if “the
parent has neglected or wilfully abused a child.” The statute expressly
includes “situations in which the parent knew or reasonably should have
known that a person was abusing or neglecting a child.” Id. “Abuse”
includes causing or allowing either physical or serious emotional injury.
A.R.S. §§ 8-201(2), -533(B)(2). Abuse of one child supports termination of
parental rights to other children, even absent evidence that the other
children were abused. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79,
¶ 14 (App. 2005).

¶13           Father argues the superior court erred because the evidence
did not establish the cause of the children’s injuries; he does not challenge
the court’s best interests determination. He asserts that both DCS and the
court simply assumed that “the children showed evidence of injuries,
therefore, Father either was the abuser or failed to protect the children.”

¶14           We disagree. The evidence showed that N.K.’s fractures were
highly specific for child abuse. Additional testing effectively ruled out
other, non-trauma medical causes. And although Father and Mother
presented a contrary medical opinion concluding that N.K.’s injuries did
not indicate abuse, the superior court weighed the conflicting evidence and
concluded otherwise. See Jesus M., 203 Ariz. at 280, ¶ 4.

¶15           Moreover, substantial evidence showed that Father was
responsible for the children’s injuries or should have known of the abuse.
Although Father argues that Mother was responsible for the physical
discipline and that he did not know and could not have known if she
injured the children, he was the children’s primary caretaker at the time
they were injured. Additionally, the older children stated that both Father
and Mother used a belt to impose physical punishment; J.J. specified that
Father punished him by hitting him with a stick. Two of the older children
had patterned marks and scars on their bodies consistent with being hit
with a belt or stick, and all four older children exhibited abnormal fear
behavior, three of them specifically triggered by belts. Father himself
acknowledged “whooping” the children. Although he denied doing so
regularly, using an implement like a stick or belt, or ever leaving a mark,
there was evidence to the contrary, and we defer to the superior court’s
assessment of conflicting evidence and witness credibility. Id.

¶16            Although, as DCS acknowledged, Father cared deeply for the
children, participated in services, and made significant progress in other
areas, the record supports the superior court’s determination that severance




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                    MOHAMMAD K. v. DCS, et al.
                       Decision of the Court

was warranted on grounds of abuse. Accordingly, the court did not err by
terminating Father’s parental rights to C.K., N.K., and M.K.

                            CONCLUSION

¶17          The judgment is affirmed.




                                 :jt


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