                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                          SETH M., Appellant,

                                   v.

                   ARIENNE M., J.M., E.M., Appellees.

                          No. 1 CA-JV 18-0007
                            FILED 9-6-2018


           Appeal from the Superior Court in Navajo County
                        No. S0900SV201700016
              The Honorable Michala M. Ruechel, Judge

                              AFFIRMED


                              COUNSEL

Bearnson & Caldwell, LLC, Cave Creek
By Wayne K. Caldwell
Counsel for Appellant

Riggs, Ellsworth & Porter, PLC, Show Low
By Michael R. Ellsworth, Joshua G. Crandell
Counsel for Appellees
                        SETH M. v. ARIENNE M., et al.
                            Opinion of the Court



                                 OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


P E R K I N S, Judge:

¶1             Seth M. (“Father”) appeals the termination of his parental
rights to the two minor children (“the Children”) he has in common with
Arienne M. (“Mother”). The juvenile court terminated Father’s parental
rights to the Children after Mother filed a petition for termination under
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(2) and (B)(4) (2018).
Father’s admitted sexual abuse of his stepdaughter constitutes willful abuse
of a child under § 8-533(B)(2), a statutory ground supporting termination of
Father’s parental rights to the Children. Further, the removal of detriments
to the Children, including instability and safety concerns, supports a
finding that termination is in the Children’s best interests. We thus affirm
the juvenile court’s termination ruling.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Father and Mother married in 2012 and lived in Utah.
Mother’s four children from a prior marriage lived with them. The parties
had the Children involved in this severance action after they were married.

¶3            In January 2016, Father twice climbed into the bed of his
twelve-year-old stepdaughter (“Stepdaughter”) and rubbed her breasts
when he thought she was asleep. Father confessed to abusing Stepdaughter
in June 2016, after initially denying it. Soon after, Mother moved with all of
her children to Snowflake, Arizona. Father has not seen the Children since
that time and has had no contact with the Children since January 2017.

¶4            In February 2017, a Utah court convicted Father of sexual
abuse of a child, a class 2 felony. Later that year, Mother filed for divorce
and filed a petition to terminate Father’s rights to the Children. Father then
was released from jail on probation, which prohibited him from having
contact with any person under the age of eighteen, but this restriction could
be lifted at the discretion of Father’s probation officer. At the time of
termination, Father’s probation officer had not approved contact with any
minors.



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                       SETH M. v. ARIENNE M., et al.
                           Opinion of the Court

¶5             The juvenile court terminated Father’s rights on two grounds:
first, “Father has neglected or willfully abused a child and this abuse has
caused serious emotional injury to the child”; second, “Father has been
deprived of civil liberties due to the conviction of a felony which is of such
nature as to prove the unfitness of Father to have future custody and control
of the [C]hildren.” It also found that termination was in the Children’s best
interests because termination would remove the detriments of instability
and safety concerns, and a stepparent adoption would be available to the
Children in the foreseeable future, which provides the Children a benefit.

¶6           On appeal, Father challenges the statutory grounds for
termination. He argues that because Mother did not sufficiently prove
emotional harm, there was insufficient evidence to support a finding of
abuse and that the crime for which he was convicted is not a type that
proves parental unfitness. He also argues that the juvenile court erred in
terminating his parental rights because the Children are not immediately
adoptable.

                                DISCUSSION

¶7            The issue before us is whether Father’s admitted sexual abuse
of Stepdaughter supports a statutory ground for termination based on the
plain language of § 8-533(B)(2). “[W]e 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 (App. 2004). We will accept the
juvenile court’s factual findings supporting the severance unless they are
clearly erroneous. James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 354, ¶ 10
(App. 1998).

¶8            A court may terminate parental rights if it finds by clear and
convincing evidence “[t]hat the parent has neglected or wilfully abused a
child. This abuse includes serious physical or emotional injury . . . .” A.R.S.
§ 8-533(B)(2); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 12
(2000). It is a matter of first impression whether a court can terminate
parental rights under § 8-533(B)(2) when the parent has abused a child with
whom the parent has no familial relationship. “Our task in statutory
construction is to effectuate the text if it is clear and unambiguous.” BSI
Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19, ¶ 9 (2018). We hold
that Stepdaughter, twelve years old at the time of the offense, is “a child”
within the unambiguous, plain terms of § 8-533(B)(2), which is sufficient to
support termination of Father’s rights to Children.




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                       SETH M. v. ARIENNE M., et al.
                           Opinion of the Court

¶9             In holding the term “a child” unambiguous, we depart from
a prior opinion of this Court. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz.
76, 78, ¶ 10 (App. 2005) (“We first note that the phrase ‘a child’ contained
in § 8-533(B)(2) is ambiguous because it is readily capable of vastly different
interpretations.”). The Linda V. court deemed the phrase “a child”
ambiguous because the same phrase appears elsewhere in the termination
statute where the context requires that the provisions apply to the child at
issue, not just any child. Id. at 78–79, ¶¶ 11–13. In other words, elsewhere
in the statute, the plain language limits “a child” to a specific child. The
context of the section at issue here does not require such a limited reading
of the phrase “a child.” Our disagreement with Linda V. is confined to its
determination of ambiguity and does not extend to its holding. Id. at 79, ¶
14 (“[P]arents 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.”).

¶10           The juvenile court found that Father sexually abused
Stepdaughter and was convicted of that offense. Section 13-1404 explicitly
describes the conduct to which Father admitted, and that criminal provision
is incorporated into the definition of abuse found in A.R.S. § 8-201(2)(a). See
A.R.S. 13-1404(A) (“A person commits sexual abuse by intentionally or
knowingly engaging in sexual contact . . . with any person who is under
fifteen years of age if the sexual contact involves only the female breast.”).
Therefore, the juvenile court’s findings support its determination that
Father willfully abused a child.

¶11             We have previously required an additional showing when
“the grounds for termination of a parent’s rights to one child are based on
abuse of another child.” Tina T. v. Dep’t of Child Safety, 236 Ariz. 295, 299, ¶
17 (App. 2014). Specifically, we have asked the party seeking termination
of rights to “show a constitutional nexus between the prior abuse and the
risk of future abuse to the child at issue.” Id. This “constitutional nexus”
requirement first appeared in a footnote in the Linda V. opinion, although
that opinion does not identify any legal source for such a requirement and
it is not present in the statute itself. Linda V., 211 Ariz. at 80 n.3, ¶ 17. We
need not pass on the validity of such a requirement today because the
juvenile court record supports a finding of sufficient nexus. Father testified
at trial that: he is addicted to pornography and engaged in voyeurism;
Stepdaughter was not the first person that he had unlawfully or
inappropriately touched; and he has a problem with telling the truth and
initially lied about this sexual abuse to the officer. Further, one of the



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                      SETH M. v. ARIENNE M., et al.
                          Opinion of the Court

Children was in the same room as Stepdaughter during both instances of
sexual abuse, and both Children were in the home during the sexual abuse.

¶12           Father’s argument that Mother failed to properly demonstrate
serious emotional injury is correct, but ultimately unavailing. “Serious
emotional injury” must be “diagnosed by a medical doctor or
psychologist.” A.R.S. § 8-201(32). Mother presented no evidence that a
medical doctor or psychologist had diagnosed Stepdaughter with such an
injury. The only evidence for Stepdaughter’s emotional injury came from
the testimony of Mother, Father, and two family acquaintances who
observed her. Therefore, the evidence could not support the juvenile court’s
finding that Father had inflicted serious emotional injury. See E.R. v. Dep’t
of Child Safety, 237 Ariz. 56, 59, ¶ 12 (App. 2015) (“[T]he diagnosis of a
medical doctor or psychologist is required to establish serious physical or
emotional injury.”). However, a determination of serious emotional injury
was not necessary to the juvenile court’s finding of abuse. The term “abuse”
as used in A.R.S. § 8-533(B)(2) and defined in § 8-201(2) does not require a
showing of serious emotional injury or a diagnosis of a medical doctor or
psychologist. Id. at 59, ¶ 15. Thus, though the juvenile court erred in finding
that Father had inflicted serious emotional injury on Stepdaughter, this
error does not negate the court’s findings of abuse.

¶13            We hold that the juvenile court’s findings of abuse support a
ground for termination and we need not, therefore, consider the other
ground the court cited in terminating Father’s rights. See Michael J., 196 Ariz.
at 251, ¶ 27 (“Because we affirm the trial court’s order granting severance
on the basis of abandonment, we need not consider whether the trial court’s
findings justified severance on the other grounds announced by the
court.”).

¶14            Father also argues that because Mother and Father were still
married at the time of termination, the Children were not immediately
adoptable, and the juvenile court therefore erred in finding termination
would be in the Children’s best interests. The best interests analysis
requires the court to consider whether termination would result in an
affirmative benefit to the child or would eliminate a detriment caused by
the continuation of the parental relationship. Dominique M. v. Dep’t of Child
Safety, 240 Ariz. 96, 98, ¶ 8 (App. 2016). Making the child available for a
prospective adoption is a benefit that can support a best interests finding.
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). In addition to the
benefit of the potential adoptability of the Children following termination,
the juvenile court relied on the removal of detriments—instability and
safety concerns posed by Father’s admitted sexual abuse history—in


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                      SETH M. v. ARIENNE M., et al.
                          Opinion of the Court

reaching its best interests determination. Thus, the juvenile court’s finding
that termination was in the Children’s best interests was not clearly
erroneous.

                              CONCLUSION

¶15          We affirm the termination of Father’s parental rights to the
Children.




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




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