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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            HAYLEY W., GARY W.,
                                Appellants,

                                         v.

    DEPARTMENT OF CHILD SAFETY, C.W., CHEROKEE NATION,
                         Appellees.

                              No. 1 CA-JV 18-0474
                                FILED 6-6-2019


            Appeal from the Superior Court in Yavapai County
                         No. P1300JD201700090
                 The Honorable Anna C. Young, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant Hayley W.

Berkshire Law Office, P.L.L.C., Tempe
By Keith Berkshire, Erica L. Gadberry
Counsel for Appellant Gary W.

Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
Law Office of Sarah J. Michael, Glendale
By Robert Ian Casey
Guardian Ad Litem for C.W.



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1             Hayley W. (Mother) and Gary W. (Father) appeal the
termination of their parental rights to C.W. (Child), an Indian child. Mother
argues Child’s guardian ad litem (GAL) failed to prove severance was
warranted under Arizona Revised Statutes (A.R.S.) § 8-533 and the Indian
Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 to 1963, by clear and
convincing evidence, and failed to prove termination of her parental rights
was in Child’s best interests. Father argues he was deprived of due process
when the juvenile court declined to continue the termination adjudication
hearing until after resolution of certain criminal charges and by virtue of
ineffective assistance of counsel. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In November 2017, Mother and Father brought five-month-
old Child to the emergency room with an unexplained acute fracture to his
right humerus.1 The emergency room physician reported that neither the
arm injury, nor the seven other fractures he discovered on Child’s ribs and
left arm, correlated to accidental trauma. When questioned by DCS, both
parents denied any traumatic event and suggested the other fractures
occurred when Child fell from a changing table six to eight weeks earlier.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 468-70 (1966), Father admitted to law enforcement that he had pushed
Child’s arm down the night before, causing it to “pop,” when he was
frustrated Child would not take a pacifier. Father also admitted he had
caused the other fractures when he “yanked” Child off the changing table

1       “[W]e view the evidence and reasonable inferences to be drawn from
it in the light most favorable to sustaining the court’s decision.” Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M.
v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).


                                       2
                   HAYLEY W., GARY W. v. DCS, et al.
                        Decision of the Court

because Child would not stop crying. Father stated he dressed Child
carefully and feigned ignorance of the injuries to hide his behavior from
Mother. Father was arrested and charged with two counts of child abuse.

¶3            DCS took temporary custody of Child and filed a petition
alleging he was dependent as to both parents on the grounds of abuse and
neglect. The juvenile court adjudicated Child dependent and adopted a
case plan of family reunification concurrent with severance and adoption.

¶4              A subsequent bone scan revealed two more unexplained
fractures in Child’s left tibia and right big toe. Further evaluation revealed
Child’s bone health and development were normal, and Child had no
medical condition that would have contributed to the injuries. According
to the testifying medical expert, these circumstances indicated Child, a non-
mobile infant, had suffered from multiple distinct episodes of non-
accidental, direct force trauma. Meanwhile, Father recanted his confession
and denied harming Child.

¶5           DCS referred Mother for counseling, parenting classes, and
supervised visitation. Although Mother progressed through her services,
she continued to live with Father, who was ordered through the criminal
court to have no contact with Child. DCS initially noted this was
“somewhat concerning but also understandable” and encouraged Mother
to continue with individual counseling.

¶6            In March 2018, Mother falsely reported that Child’s injuries
were due to “soft bones” caused by inadequate breastmilk. DCS then
expressed concern that Mother had “thus far been unaccepting of th[e] high
probability” that Father caused Child’s injuries and had “thus far chosen to
side with [Father].” Child’s GAL echoed these concerns. DCS again
encouraged Mother to continue with individual counseling and to evaluate
her relationship with Father, “particularly in light of the evidence that
strongly points to [Father] as having caused injuries to their son.”

¶7            Thereafter, when DCS raised its concern about Mother’s
relationship with Father, Mother would “divert the conversation . . . saying
that she would wait until [Father] was either found guilty or not guilty in
court.” Although Mother stated she would end the relationship if Father
were convicted, recorded phone calls from the jail revealed the two had no
plans to divorce; rather, the parents anticipated Child would return to
Mother’s care, after which they would “reunite following the pretense of
divorce” and raise Child together.




                                      3
                   HAYLEY W., GARY W. v. DCS, et al.
                        Decision of the Court

¶8           In June 2018, the GAL moved to terminate Mother’s and
Father’s parental rights to Child on the grounds of abuse, neglect, and the
length of time in out-of-home care. The juvenile court set a termination
adjudication hearing for September.

¶9              By the time of the termination adjudication hearing, neither
parent had accepted any responsibility for Child’s injuries or
acknowledged them as non-accidental. An ICWA expert testified that DCS
had gone “above and beyond” and “done all they could do” to provide
remedial services for Child’s family. However, so long as the parents
remained in denial, the circumstances leading to the abuse could not be
identified or resolved. Indeed, there were no services capable of remedying
the physical harm that had already occurred. And although Mother acted
as an appropriate parent during her short visits with Child, she had not
engaged in any unsupervised or extended parenting time “where it can get
really stressful and hard to manage.” Given these circumstances and
Child’s inability to protect himself at his young age, Mother’s counselor, the
DCS case manager, and the ICWA expert all testified that Child remained
at risk for serious emotional or physical injury in either parent’s care.

¶10            The counselor, DCS case manager, and ICWA expert likewise
agreed termination of Mother’s and Father’s parental rights was in Child’s
best interests. Child was adoptable and in an adoptive placement with his
maternal grandparents, and severance would give him an opportunity for
permanency in a safe home. The ICWA expert added that, after nearly ten
months in out-of-home care, Child deserved permanency — not to wait and
see if Father would be convicted or if Mother would move on from the
relationship.

¶11           During the parents’ testimony, Mother admitted she and
Father had been Child’s primary caretakers, but both parents asserted a
Fifth Amendment right to refuse questions regarding the cause of Child’s
injuries while Father’s criminal case remained pending. Mother added that
she did not believe Father had harmed Child or posed any present danger
to Child and affirmed that she would remain in a relationship with him
unless and until he was found guilty of the criminal charges.

¶12            After taking the matter under advisement, the juvenile court
found evidence beyond a reasonable doubt, including the testimony of an
ICWA specialist, that DCS had made active efforts to prevent the breakup
of the Indian family but that continued custody with the parents would
likely result in serious emotional or physical harm to Child. The court
determined the GAL had proved by clear and convincing evidence that


                                      4
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

termination of both parents’ parental rights was warranted because each
had either willfully abused Child or failed to protect him from neglect and
abuse, see A.R.S. § 8-533(B)(2),2 and termination of Mother’s parental rights
was further warranted because she had “substantially neglected or willfully
refused to remedy the circumstances” causing Child to be in an out-of-
home placement for more than six months, see A.R.S. § 8-533(B)(8)(b). The
court also found the GAL had proved by a preponderance of the evidence
that severance from both parents was in Child’s best interests and entered
an order terminating Mother’s and Father’s parental rights. Both parents
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).

                                DISCUSSION

I.     The Juvenile Court’s Findings and Conclusions Regarding
       Termination of Mother’s Parental Rights are Supported by the
       Record.

¶13            Generally, the juvenile court may terminate parental rights if
it finds that a statutory ground exists and termination is in the child’s best
interests. Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 334, ¶ 9 (2009)
(citing A.R.S. §§ 8-533(B), -537(B), and Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 22 (2005)). When the child is an Indian child, ICWA requires two
additional findings. First, the court must find by clear and convincing
evidence that active efforts at “remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family” were made
and were unsuccessful. 25 U.S.C. § 1912(d); Ariz. R.P. Juv. Ct. 66(C); see also
Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421, ¶ 26 (App. 2011)
(holding “the necessary ICWA ‘active efforts’ finding must . . . be made
under the clear and convincing evidence standard”). Second, the court
must make “a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). We
review the court’s findings regarding the statutory grounds for severance,
the best interests of the child, and the additional ICWA requirements for an
abuse of discretion and will affirm “unless we must say as a matter of law
that no one could reasonably find the evidence” sufficient to support them.



2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                        5
                   HAYLEY W., GARY W. v. DCS, et al.
                        Decision of the Court

See Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10 (App. 2009)
(internal quotation omitted).

       A.     Active Efforts

¶14           Mother argues active efforts were not made to prevent the
break-up of the Indian family because she was never told she had to live
separately from Father to achieve reunification. She separately contends
this omission deprived her of due process.

¶15           What constitutes “active efforts” varies depending upon the
circumstances and the asserted grounds for severance and “will not always
implicate formal public services.” S.S. v. Stephanie H., 241 Ariz. 419, 425,
¶¶ 21-23 (App. 2017) (explaining that active efforts to prevent a parent from
abandoning a child might include simply keeping a parent informed and
encouraging meaningful contact). The requirement of active efforts is
generally satisfied so long as the parent is given the time and opportunity
to become an effective parent. See Maricopa Cty. Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994).

¶16            Mother was not, as she contends, “expected to figure out how
to satisfy DCS and/or the trial court that she was able to protect [Child].”
Rather, Mother was provided with uncontradicted medical evidence that
her non-mobile infant had suffered nearly a dozen skeletal fractures caused
by several distinct episodes of non-accidental, direct force trauma. Indeed,
Father initially admitted having inflicted the injuries while frustrated with
Child, for whom he was a primary caregiver. Mother was also advised that
her continued allegiance to Father was concerning and was encouraged to
evaluate her relationship with him given the likelihood that he had
physically abused Child. Mother chose to ignore the circumstances, relying
instead upon cryptic references to unidentified and undisclosed records
“that prove otherwise” to support her decision to remain with Father. And
although Mother did attend counseling and parent aide services, she
focused on general parenting skills and grief counseling, rather than on her
ability to identify unsafe situations or the challenges posed by her
relationship with Father.

¶17            A parent cannot be forced to act appropriately. Yvonne L., 227
Ariz. at 423, ¶ 34 (citing JS-501904, 180 Ariz. at 353). The evidence is
sufficient to support the juvenile court’s conclusion that Mother was given
the information, time, and opportunity needed to appreciate, acknowledge,
and address the risk Father posed to Child. Therefore, active efforts were




                                      6
                   HAYLEY W., GARY W. v. DCS, et al.
                        Decision of the Court

made to prevent the breakup of the Indian family, and Mother has failed to
prove any error or due process violation.

       B.     Serious Emotional or Physical Damage

¶18            Mother argues the juvenile court erred in finding that
Mother’s continued custody of Child was likely to cause him serious
emotional or physical damage. See 25 U.S.C. § 1912(f). A determination
that an Indian child will likely suffer serious harm if returned to the custody
of the parent requires evidence “both that the parent’s conduct is likely to
harm the child and that the parent is unlikely to change her conduct.”
Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 566, 571-72 (2008) (quoting
E.A. v. State, 46 P.3d 986, 992 (Alaska 2002), and citing Thomas H. v. State,
184 P.3d 9, 19 (Alaska 2008)).

¶19           To support her argument, Mother points to evidence
indicating she did not directly harm Child and believed she could and
would protect him. But we do not reweigh evidence on appeal; the juvenile
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and make appropriate findings.” Jesus
M., 203 Ariz. at 205, ¶ 4 (citing Pima Cty. Dependency Action No. 93511, 154
Ariz. 543, 546 (App. 1987)); see also Kocher v. Dep’t of Revenue of Ariz., 206
Ariz. 480, 482, ¶ 9 (App. 2003) (“A finding of fact is not clearly erroneous if
substantial evidence supports it, even if substantial conflicting evidence
exists.”).

¶20           The juvenile court was entitled to draw a negative inference
from Mother’s invocation of her right against self-incrimination when
questioned about the source of Child’s injuries. See Montoya v. Superior
Court, 173 Ariz. 129, 131 (App. 1992); see also Baxter v. Palmigiano, 425 U.S.
308, 318 (1976) (recognizing “the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to testify in
response to probative evidence offered against them”). But even if Mother
did not directly injure Child, she never acknowledged that the injuries were
non-accidental or that they were most likely inflicted by Father over the
course of multiple fits of frustration. Instead, Mother remained in a
romantic relationship with Father and maintained his innocence nearly a
year after the dependency proceedings were initiated, despite Father’s
confession, the existing medical opinions, and the lack of any other credible
explanation for Child’s injuries. Mother’s willful ignorance of the danger
Father poses to Child creates a risk of continuing harm, and her actions
during the dependency support a finding that she is unlikely to change her
conduct. On this record, we find no error in the determination that


                                      7
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

Mother’s continued custody of Child was likely to cause him serious
emotional or physical damage.

       C.     Statutory Grounds for Severance

¶21              Mother argues the GAL failed to prove the statutory grounds
for severance by clear and convincing evidence. A parent’s rights may be
terminated pursuant to A.R.S. § 8-533(B)(8)(b) when a child under three
“has been in an out-of-home placement for . . . six months or longer . . . and
the parent has substantially neglected or wil[l]fully refused to remedy the
circumstances that cause the child to be in an out-of-home placement.”
Because this subsection was adopted to address the growing number of
children lingering in foster care while “parents maintain parental rights but
refuse to assume their parental responsibilities,” severance based upon a
child’s time in an out-of-home placement is not limited to those who have
completely neglected to remedy the circumstances or completely failed to
participate in services. Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz.
571, 577 (App. 1994). Thus, although a parent who makes “appreciable,
good faith efforts” at reunification “will not be found to have substantially
neglected to remedy the circumstances that caused out-of-home placement,
. . . a trial court is well within its discretion in finding substantial neglect”
where the parent “expend[s] only minimal effort.” Id. at 576.

¶22            “[I]t is difficult to define the level of effort that would exempt
a parent from severance” upon this ground, see id. at 576 n.1, but we find no
clear error in the juvenile court’s conclusion here. Child was placed in out-
of-home care after Father admitted causing serious physical injuries to
Child out of frustration. Mother admitted she and Father were Child’s
primary caregivers but, inexplicably, denied either parent had harmed
Child and refused to acknowledge the injuries were non-accidental.
Mother participated in services designed to improve her parenting, but she
continued to reside with Father, knowing DCS, the GAL, and the court
viewed him as a threat to Child, and knowing Child could not return to her
and Father’s shared home as a result of the criminal no-contact order.
Although Mother sometimes indicated she would separate from her
relationship and home with Father, she did not take any steps to do so.

¶23           Mother’s actions here were not the “appreciable, good faith
efforts” contemplated by A.R.S. § 8-533(B)(8)(b). See JS-501568, 177 Ariz. at
576. Rather, her steadfast refusal to acknowledge the danger Father posed
to Child is commensurate with substantial neglect or willful refusal to
remedy the circumstances causing Child’s out-of-home placement; Mother




                                       8
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

cannot defeat severance by simply refusing to accept the factual
circumstances underlying the dependency.3 We find no error.

       D.     Best Interests

¶24             Mother argues the juvenile court abused its discretion in
concluding termination was in Child’s best interests because she shares a
bond with him and has made efforts to improve her ability to parent.
Termination is in a child’s best interests if, given the particular
circumstances, the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004); accord
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). The existence of a bond
between the parent and child is relevant but not dispositive, Dominique M.
v. DCS, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (citing Bennigno R. v. Ariz. Dep’t
of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)), and a child will generally
benefit from the opportunity for permanency in lieu of remaining with an
unfit parent, see Oscar O., 209 Ariz. at 337, ¶ 16 (quoting JS-6520, 157 Ariz.
at 243). The court may also consider whether the presence of a statutory
ground for severance will have a negative effect upon the child. Bennigno
R., 233 Ariz. at 350, ¶ 23 (quoting Maricopa Cty. Juv. Action No. JS-6831, 155
Ariz. 556, 559 (App. 1988)).

¶25            Here, the juvenile court found that Child could not safely
return to Mother and that termination would free him for adoption into a
safe, stable home free from physical abuse. The court also found Child was
adoptable and in an ICWA-compliant adoptive placement with his
maternal grandparents. The record supports these findings and provides
an adequate basis to conclude severance was in Child’s best interests. We
will not second-guess the court’s assessment of the evidence on appeal. See
Oscar O., 209 Ariz. at 334, ¶ 4 (citing Jesus M., 203 Ariz. at 280, ¶ 4).
Accordingly, we find no abuse of discretion.



3       Because we find clear and convincing evidence supports the
termination order based upon the time Child was in out-of-home care, we
need not, and do not, consider whether the remaining grounds are
supported by the record. Jesus M., 203 Ariz. at 280, ¶ 3 (“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.”) (citing Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 251, ¶ 27 (2000), and Maricopa Cty. Juv. Action No. JS-6520,
157 Ariz. 238, 242 (App. 1988)).


                                       9
                   HAYLEY W., GARY W. v. DCS, et al.
                        Decision of the Court

II.    Father Did Not Preserve or Prove any Due Process Violation.

       A.     Continuance

¶26            Father argues the juvenile court abused its discretion and
deprived him of due process when it denied his request to continue the
termination adjudication hearing until after his criminal charges were
resolved. We review an order denying a continuance for an abuse of
discretion. See Yavapai Cty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App.
1988) (citation omitted). Whether a party is afforded due process presents
a question of law reviewed de novo. Jeff D. v. DCS, 239 Ariz. 205, 207, ¶ 6
(App. 2016) (citing Herman v. City of Tucson, 197 Ariz. 430, 432, ¶ 5 (App.
1999)).

¶27            After a motion to terminate parental rights is filed, the
juvenile court must set a termination adjudication hearing within ninety
days of the permanency hearing. A.R.S. § 8-862(D)(2); accord Ariz. R.P. Juv.
Ct. 66(B). Given the court’s paramount goal of “prompt finality that
protects the child’s interests,” Pima Cty. Juv. Severance Action No. S-114487,
179 Ariz. 86, 97 (1994), continuances are limited:

       The court may continue the hearing beyond the ninety (90)
       day time limit for a period of thirty (30) days if it finds that
       the continuance is necessary for the full, fair and proper
       presentation of evidence, and the best interests of the child
       would not be adversely affected. Any continuance beyond
       thirty (30) days shall only be granted upon a finding of
       extraordinary circumstances.

Ariz. R.P. Juv. Ct. 66(B). Extraordinary circumstances “include, but are not
limited to, acts or omissions that are unfor[e]seen or unavoidable” and, by
rule, must be timely asserted in a written motion for extension of time. Id.

¶28          The record reflects Mother filed a motion for an eight-day
continuance of the September 2018 termination adjudication hearing to
accommodate a scheduled medical procedure. During discussion on that
motion, Father’s counsel indicated a preference for “a continuance that
would place the trial after the father’s criminal case concludes” in December
— more than seven months after the termination motion was filed. Both
DCS and the GAL objected to a continuance beyond the statutory
timeframe.

¶29         Father did not file a motion to continue the termination
adjudication hearing and did not articulate any extraordinary


                                     10
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

circumstances he believed would justify a lengthy continuance. Because
Father did not comply with Rule 66(B) and did not assert the continuance
to be “necessary for the full, fair and proper presentation of evidence,” id.,
or without adverse affect to Child’s best interests,4 we cannot say the
juvenile court acted outside of its discretion in declining his request.

¶30            Nor has Father shown that the denial of the continuance
violated his due process. The U.S. Constitution affords a parent in a
termination proceeding the privilege of asserting his Fifth Amendment
right against self-incrimination. See U.S. Const. amend. V; Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 13 (App. 2001) (citing In re Gault, 387
U.S. 1, 47-48 (1967)). The decision to assert the privilege is not without
consequence. A parent is bound to his silence; he “cannot testify for his . . .
own advantage and then invoke the privilege and claim the right to be free
from cross-examination.” Montoya, 173 Ariz. at 131 (citing Brown v. United
States, 356 U.S. 148, 155-56 (1958), and State v. Taylor, 99 Ariz. 85, 91 (1965)).
Additionally, the trial judge is free to draw a negative inference from the
invocation. Id. (citing Buzard v. Griffin, 89 Ariz. 42, 48 (1960), and Ikeda v.
Curtis, 261 P.2d 684, 690 (Wash. 1953)).

¶31           But neither does the decision to assert the privilege against
self-incrimination deprive a parent of a meaningful opportunity to be heard
at the termination adjudication hearing. A parent who chooses to avoid the
possibility of self-incrimination by remaining silent retains his right to
participate in the proceedings and present other evidence to support his
position. Cf. Brenda D. v. DCS, 243 Ariz. 437, 446, ¶ 30 (2018) (concluding a
parent’s due process rights were satisfied even without her participation

4       Father urges us to adopt the three-factor test identified by the
Alabama Court of Civil Appeals in R.B. v. Elmore County Department of
Human Resources, 75 So. 3d 1195 (Ala. Civ. App. 2011), for determining
whether a parent’s intent to assert the privilege against self-incrimination
justified continuance of a related severance proceeding. We decline to do
so. The R.B. factors — whether the juvenile and criminal proceedings are
parallel, whether the parent’s constitutional rights will be threatened, and
the balance of those constitutional rights against the child’s interest in
permanency, see id. at 1201 (quoting Ex parte Rawls, 953 So. 2d 374, 378 (Ala.
2006)) — are encompassed within Rule 66(B), which already directs the
juvenile court to consider, when exercising its discretion to continue a
termination adjudication hearing, the existence of extraordinary
circumstances, as well as whether “the continuance is necessary for the full,
fair and proper presentation of evidence,” and whether “the best interests
of the child would . . . be adversely affected.”


                                       11
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

where “the absent parent’s counsel has a right to fully participate in the
hearing on the parent’s behalf, including a right to cross-examine the state’s
witnesses, object to proffered evidence, and present witnesses or other
evidence”). Father was present at the hearing and had ample opportunity
to advance his position that Child’s injuries were accidental through
Mother’s testimony, cross-examination of the medical professionals, and
reports summarizing his position. Accordingly, we find no due process
violation.

       B.      Assistance of Counsel

¶32            Father also argues he was deprived of due process because
his counsel was ineffective. Assuming without deciding that ineffective
assistance of counsel provides a basis for reversible error in a severance
proceeding, the parent must show “that counsel’s representation fell below
prevailing professional norms.” John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz.
320, 322-23, 325, ¶¶ 8, 17 (App. 2007) (citing Strickland v. Washington, 466
U.S. 668, 688 (1984), and Pima Cty. Severance Action No. S-2397, 161 Ariz. 574,
578 (App. 1989)). Moreover:

       [N]o reversal of a termination order is justified by inadequacy
       of counsel unless, at a minimum, a parent can demonstrate
       that counsel’s alleged errors were sufficient to “undermine
       confidence in the outcome” of the severance proceeding and
       give rise to a reasonable probability that, but for counsel’s
       errors, the result would have been different.

Id. at 325, ¶ 18 (citing Strickland, 466 U.S. at 692-94).

¶33           Father complains his counsel was ineffective because she:
(1) did not properly request a continuance; (2) did not question Father on
direct or cross-examination; (3) did not subpoena the law enforcement
officers who took Father’s confession; and (4) did not cross-examine the
medical expert who testified regarding Child’s injuries. But “a court must
indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, . . . that, under the
circumstances, the challenged action might be considered sound trial
strategy.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 7 (2017) (quoting Strickland,
466 U.S. at 689). Thus, “reviewing courts must be very cautious in deeming
trial counsel’s assistance ineffective when counsel’s challenged acts or
omissions might have a reasonable explanation.” Id. And it takes no great
imagination to see how the actions Father now complains of could have
undermined his position: Father could have been convicted of the criminal



                                        12
                    HAYLEY W., GARY W. v. DCS, et al.
                         Decision of the Court

charges, and further testimony from Father, law enforcement, or the nurse
practitioner could have strengthened the case against him. Father has not
overcome the presumption that these actions represented reasonable,
strategic decisions of competent counsel. See S-2397, 161 Ariz. at 578.

¶34            Father also complains his counsel was ineffective because she:
(1) did not object to the admission of the police report; and (2) did not object
when the medical expert testified regarding purportedly undisclosed
medical records. But the contents of the police report — namely, Father’s
confession to harming Child — are cumulative to and consistent with other
properly admitted testimony. See State v. Fulminante, 161 Ariz. 237, 245-46
(1988) (holding that the admission of evidence is harmless when it is
cumulative to and consistent with other properly admitted evidence);
Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 239, ¶ 17 (App. 2012)
(finding no prejudice in the erroneous admission of evidence where “other
overwhelming evidence” established the parent’s abuse of the children).
Additionally, Father fails to state any legal basis justifying exclusion of the
facts underlying the medical expert’s testimony that were otherwise
admissible under Arizona Rule of Evidence 703 (permitting an expert to
testify about the facts or data underlying her opinion, even if otherwise
inadmissible, if helpful to the factfinder).

¶35            Finally, Father argues his counsel was ineffective because she
did not offer any evidence or testimony that would suggest Child’s injuries
resulted from something other than physical abuse. Even assuming trial
counsel was deficient in this regard — a fact we need not resolve — we
cannot say the proceedings were fundamentally unfair, that the result is
unreliable, or that, had counsel conducted herself differently, the juvenile
court would have reached a different result. See John M., 217 Ariz. at 325,
¶ 19. To the contrary, the evidence and testimony, including Father’s post-
Miranda confession that he “yanked” and pushed at the non-mobile infant
with enough force to cause multiple skeletal fractures on at least two
occasions because he was frustrated, overwhelmingly supports the juvenile
court’s findings and conclusions regarding Father’s role in Child’s injuries.
Cf. State v. Encinas, 132 Ariz. 493, 497 (1982) (finding no prejudice where the
“[a]ppellant’s own confession proved the elements of all the crimes
charged”); State v. Spreitz, 190 Ariz. 129, 142 (1997) (“[W]e have no difficulty
concluding beyond a reasonable doubt by reason of the overwhelming
evidence against the defendant, including, most importantly, his own
uncoerced confession, that the jury would have found him guilty without
the [challenged evidence].”); accord State v. Amaya-Ruiz, 166 Ariz. 152, 182
(1990). Accordingly, Father has not proved prejudice on this final ground
and therefore fails to state a basis for reversal.


                                      13
                  HAYLEY W., GARY W. v. DCS, et al.
                       Decision of the Court

                             CONCLUSION

¶36           The juvenile court’s order terminating Mother’s and Father’s
parental rights to Child is affirmed.




                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT

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