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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           MANUEL M., Appellant,

                                        v.

    DEPARTMENT OF CHILD SAFETY, M.M., A.H., S.H., Appellees.

                             No. 1 CA-JV 14-0232
                               FILED 4-9-2015


           Appeal from the Superior Court in Maricopa County
                              N. JD22924
                  The Honorable Connie Contes, Judge

                                  AFFIRMED


                                   COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee



                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Donn Kessler and Chief Judge Diane M. Johnsen joined.
                        MANUEL M. v. DCS, et al.
                         Decision of the Court

G E M M I L L, Judge:

¶1              Manuel M. (Father) appeals the juvenile court’s order
terminating his parent-child relationship with three children, M.M., A.H.,
and S.H., pursuant to Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(1), (2),
(3), (8)(a), and (8)(b). For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Mendoza and Yvonne H. (Mother) are the biological parents
of M.M. (born 2004), A.H. (born 2005), and S.H. (born 2012). Mother also
has children with different fathers, including daughter E.H. (born 1999).
On July 3, 2012, DCS received a report alleging sexual abuse and neglect by
Father against E.H. Mother told DCS that Father no longer lived in the
home, and that the family had not had contact with Father since 2008.
Further attempts by DCS to speak with Mother and the children were
unsuccessful as Mother did not respond to knocks on the door or cards left
in the door. On September 17, 2012, when E.H. was 12 years old, DCS
received another report alleging sexual abuse and neglect by Father against
her.

¶3            Phoenix Police Detective K.A. investigated E.H.’s allegations
against Father. E.H. reported two incidents. The first occurred one night
between October 2010 and April 2011. E.H. told the detective that she had
felt someone moving her when she was sleeping and when she woke up,
Father’s hand was inside of her pants, “on her vagina, on her skin.” E.H.
reported that during this incident, Mother woke up and confronted Father
about what was going on, and that Father later apologized for what
happened. The second incident occurred about a year later when Mother
was at the hospital having a baby. E.H. reported that Father touched her
breast over her shirt and told her not to tell anyone.1

¶4            As a part of the investigation regarding E.H.’s claims, DCS
referred Father for a psychosexual evaluation in February 2013. The clinical
psychologist’s report concluded that Father’s behavior invalidated his test
results. The report stated that Father was “highly deceptive and


1 E.H. also admitted she had made a false allegation of physical abuse
against Father in the past. She said she made the allegation because she did
not want Mother to be with Father because they fight and Father yells at the
children. Charges were not filed based on that allegation because there was
no evidence to support the charges.


                                     2
                        MANUEL M. v. DCS, et al.
                         Decision of the Court

uncooperative with the testing process.” The clinical psychologist
recommended that Father attend individual therapy to assess Father for
any deviant sexual arousal, interests, or preferences. The report also noted
that there is a history of domestic violence in the home, with Mother once
stabbing Father. The stabbing allegedly occurred after Mother learned of
Father having sex with a fourteen year old girl; however, the accuracy of
this claim is unknown. Father participated in individual counseling
beginning in May 2013.

¶5            In August 2013, DCS filed a motion for termination of Father’s
parental rights regarding M.M., A.H., and S.H on the grounds of
abandonment and willful abuse. DCS later amended its motion for
termination to allege that the children had been in out-of-home placement
for nine months. In September 2013, Father began to participate in parent-
aide services and supervised visitation. In the three-month period from
October 2013 to December 2013, Father missed two of thirty-two total
scheduled visitations. Father’s visitations and parent-aide sessions were
interrupted when Father was taken into custody by immigration officials in
January 2014. Father remained in custody for two-and-a-half months.
After his release, Father once attempted to contact DCS by leaving a
voicemail with the DCS caseworker. The caseworker was unable to
understand Father’s contact information to call him back. Father never
contacted DCS again.

¶6            An evidentiary hearing on DCS’s motion to terminate
Father’s parental rights was held in March and June of 2014. During the
hearing, a DCS caseworker testified that the three children were in a stable
placement with their maternal grandfather where they have resided for
more than 15 months, the longest period of time that they have had a stable
home. The caseworker also testified that the maternal grandfather is
committed to adopting the children and if he were not approved, the
children are otherwise adoptable.

¶7            The juvenile court found that Father willfully abused E.H. so
as to cause a substantial risk of harm to the health and welfare of M.M.,
A.H., and S.H. See A.R.S. §§ 8-201(2), -533(B)(2). The court also found that
the children had been in out-of-home placement for nine months and that
Father had refused to remedy the circumstances causing the out-of-home
placement. Because the maternal grandfather was committed to adoption
and providing a safe environment for the children, the court concluded that
severance was in the children’s best interests. Accordingly, the court
terminated Father’s parental rights regarding M.M., A.H., and S.H.



                                     3
                          MANUEL M. v. DCS, et al.
                           Decision of the Court


¶8             Father timely appealed the juvenile court’s order. This court
has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. § 8-235(A).

                                 DISCUSSION

¶9            A parent’s right to custody of his or her child is fundamental
but not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶
11–12, 995 P.2d 682, 684 (2000). To terminate the parent-child relationship,
the juvenile court “must find, by clear and convincing evidence, at least one
of the statutory grounds set out in [A.R.S.] section 8-533, and also that
termination is in the best interest of the child.” Id. at 249, ¶ 12, 995 P.2d at
685. As the trier of fact, the juvenile court is in “the best position to weigh
the evidence, judge the credibility of the parties, observe the parties, and
make appropriate factual findings.” In re Pima Cnty. Dependency Action No.
93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). This court will
uphold the juvenile court’s termination of parental rights “absent an abuse
of discretion or unless the court’s findings of fact were clearly erroneous.”
Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748,
750 (App. 1996).

I.     Severance Based on Willful Abuse

¶10            Under A.R.S. § 8-533(B)(2), the juvenile court may sever a
parent’s rights if “the parent has neglected or willfully abused a child. This
abuse includes serious physical or emotional injury[.]” This court has
previously applied § 8-533(B)(2) to terminate parental rights to a child who
has not been abused when there is proof that the parent abused another
child. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795,
798 (App. 2005). The definition of “abuse” under § 8-201(2)(a) includes
“[i]nflicting or allowing sexual abuse pursuant to § 13-1404, sexual conduct
with a minor pursuant to § 13-1405,” and “molestation of a child pursuant
to § 13-1410.” Father argues there was insufficient evidence to support the
juvenile court’s findings that DCS had proven the abuse ground. We
disagree and conclude that reasonable evidence in the record supports the
juvenile court’s finding that Father willfully abused E.H.

¶11          The police report admitted at trial contains E.H.’s account of
the abuse and molestation. See A.R.S. § 8-237 (“[O]ut of court statements . .
. of a minor regarding acts of abuse or neglect perpetrated on him are
admissible for all purposes” in a dependency hearing); see also Ariz. R.P.



                                        4
                         MANUEL M. v. DCS, et al.
                          Decision of the Court

Juv. Ct. 45(E). Regarding the first incident, E.H. stated that Father began
touching her in her “private part” while she was sleeping. Mother woke up
and confronted Father about what was going on but did not want to believe
that Father had been touching E.H. In the second incident detailed in the
police report, E.H. said that Father told her he had seen her changing
clothes; he then touched one of her breasts on the outside of her clothing.
In the police report, E.H. stated Mother did not originally believe E.H.’s
claims that Father had been touching her. According to E.H., Father lied
when confronted by Mother and stated that E.H. took off her clothes and
propositioned Father for sex.

¶12           In addition to E.H.’s report, the juvenile court found that
other evidence and testimony at trial also supported a finding that Father
abused E.H. This included testimony from the investigating officer and a
child safety specialist with DCS, a psychological evaluation of Father,
medical records of E.H., and a police report. Father’s psychological
evaluation concluded that Father has cognitive distortions related to the
incident in which E.H. allegedly took her clothes off in front of him. It also
stated that Father appears to have more than a moderate degree of risk of
sexual offending. The evaluation recommended that Father be referred to
an individual therapist skilled in the treatment of sexual offending
behavior, with a focus on assessing Father for any deviant sexual arousal or
interests.

¶13           The juvenile court found E.H.’s report that Father sexually
abused her on “multiple occasions” to be credible and that it supported a
finding of willful abuse. The results of the psychological evaluation also
support a finding that Father posed a continuing risk of such abuse. We
conclude this evidence is sufficient to support the court’s finding that
willful abuse occurred. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
282, ¶ 12, 53 P.3d 203, 207 (App. 2002) (explaining that this court will not
reweigh the evidence on appeal but instead defers to the trial court’s
findings unless they are clearly erroneous.) Additionally, we disagree with
Father’s argument that because there was no evidence of serious physical
harm to E.H., the juvenile court therefore shifted the burden of proof to
Father. The evidence permitted the juvenile court to find willful abuse by
Father of E.H. and the burden of proof remained on DCS.

II.    Constitutional Nexus

¶14          Under A.R.S. § 8-533(B)(2), a finding of substantial abuse as to
one child permits termination of parental rights to a different child only if



                                       5
                        MANUEL M. v. DCS, et al.
                         Decision of the Court

there is a “constitutional nexus” between the prior incident and the risk of
future abuse. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285–86, ¶
16, 257 P.3d 1162, 1165–66 (App. 2011). In Mario G., for example, this court
upheld the juvenile court’s order terminating the father’s parental rights to
his biological son and daughter based on the father’s abuse of mother’s
child from a prior relationship. Id. at 283, ¶ 2, 287, ¶ 20, 257 P.3d at 1163,
1167. This court found that father’s parental rights to his biological
daughter could be terminated even though she was born after the abuse of
a different child. A sufficient nexus existed between the past and potential
future abuse because the father and mother still lived together, the injuries
were severe, the injuries occurred on three separate occasions over a one-
year period, and the physical abuse occurred within three years prior to
removal of the child from the father’s care. Id. at 286–87, ¶¶ 19–20, 257 P.3d
at 1166–67.

¶15           Under the standard set forth in Mario G., we agree with the
juvenile court that a sufficient constitutional nexus is present in this case.
Sexual molestation is a severe injury and the two incidents involving E.H.
occurred over a one-year period when E.H. was 12 years old. The juvenile
court found that Father treated E.H. as his own child and, because of the
incidents involving E.H., all of Father’s biological children, now 10, 9, and
3 years old, are at an ongoing risk of abuse. The evidence of abuse to an
unrelated child in this case is sufficient to support the termination of
parental rights to Father’s biological children.2

III.   Best Interests Findings

¶16           Finally, Father contends that the juvenile court erred in
finding that severance was in the best interests of the children, arguing that
in so doing, it failed to consider the length and strength of his existing
relationship with the children. In determining whether termination is in
the children’s best interests, the juvenile court should consider whether an
adoptive placement that meets the needs of the children is immediately


2  Because we find that the court did not err in terminating Father’s rights
on the basis of willful abuse, we need not reach the question of whether the
court was correct in finding that Father willfully refused to remedy the
circumstances leading to out-of-home placement. See Michael J. v. Ariz.
Dept. of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000)
(explaining that if one ground for severance is proven by clear and
convincing evidence, “we need not consider whether the trial court’s
findings justified severance on the other grounds” considered by the court).


                                      6
                        MANUEL M. v. DCS, et al.
                         Decision of the Court

available and whether the children are adoptable. Raymond F. v. Ariz. Dep’t
of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). The
Department must also prove how the children would either benefit from
severance or be harmed if the parental relationship was continued. Id.

¶17           We disagree with Father’s argument. The court specifically
found the children were adoptable and that their maternal grandfather was
committed to adoption. It also found that the maternal grandfather was
providing a safe and stable home for the children. Even if the maternal
grandfather is not able to adopt, as Father contends may be the case, the
court further noted that the children were otherwise adoptable. The court
also ruled that keeping Father’s parental rights intact would pose a risk of
harm to the children because of Father’s prolonged and repeated abuse of
E.H. Accordingly, sufficient evidence supports the juvenile court’s finding
that termination of Father’s parental rights was in the best interests of the
children. The court did not err.

                                 CONCLUSION

¶18           For these reasons, we affirm the severance of Father’s
parental rights regarding M.M., A.H., and S.H.




                                 :ama




                                        7
