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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          GABRIELLE F., Appellant,

                                        v.

        DEPARTMENT OF CHILD SAFETY, R.A., F.R., Appellees.

                             No. 1 CA-JV 17-0089
                               FILED 9-12-2017


           Appeal from the Superior Court in Mohave County
                        No. B8015JD201604028
               The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellees
                       GABRIELLE F. v. DCS, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Peter B. Swann joined.


B E E N E, Judge:

¶1             Gabrielle F. (“Mother”) appeals the termination of her
parental rights to her children, R.A. (born in 2011) and F.R. (born in 2015)
(collectively “the Children”). For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             In March 2016, Mother was reunified with R.A. after a second
dependency petition against her was dismissed. Mother lived with D.R.,
F.R.’s, biological father.1 Twelve days after R.A. was returned to Mother’s
care, the Department of Child Safety (“DCS”) removed the Children from
Mother’s custody after D.R. physically abused R.A.

¶3             R.A. told police that D.R. hit and kicked him while he was in
the shower. The physical abuse resulted in bruising across his back, neck,
and buttocks, and lumps on his head. DCS initiated a third dependency
action alleging Mother failed to protect the Children against physical abuse.
Two months later, DCS filed a petition to terminate Mother’s parental rights
as to (1) R.A. and F.R. on the grounds that she failed to protect them from
abuse under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(2) (2017)2
and (2) R.A. because he was removed from Mother’s home within eighteen
months of a prior dependency under A.R.S. § 8-533(B)(11)(d).

¶4            The superior court held a combined dependency and
termination hearing in November 2016 and January 2017. The court
adjudicated the Children dependent and terminated Mother’s parental
rights to the Children on both grounds alleged in the petition. Mother



1      D.R.’s parental rights to F.R. were also severed, however, he is not a
party to this appeal.

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


                                     2
                         GABRIELLE F. v. DCS, et al.
                           Decision of the Court

timely appealed the order terminating her parental rights. We have
jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21, and -2101(A)(1).

                                 DISCUSSION

¶5             Custody of one’s children is a fundamental, but not absolute,
right. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12
(2000). The superior court may terminate a parent’s rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8–533(B),
and upon finding by a preponderance of the evidence that termination is in
the best interests of the child. Id. at 248–49, ¶ 12. We review the superior
court’s termination order for an abuse of discretion and will affirm the
order “unless its factual findings are clearly erroneous, that is, unless there
is no reasonable evidence to support them.” Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998).

¶6            Parental rights may be terminated when “the parent has
neglected or willfully abused a child.” A.R.S. § 8-533(B)(2). “[A]buse
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.; see also E.R. v. Dep’t of Child Safety, 237 Ariz. 56,
59, ¶¶ 12–13 (App. 2015) (stating that abuse includes the “allowing of
physical injury, impairment of bodily function or disfigurement”) (citation
omitted).

¶7            Under § 8-533(B)(2), parents who permit another person to
abuse or neglect their children can have their parental rights to their other
children terminated even absent evidence that the other children were
abused or neglected. Tina T. v. Dep’t of Child Safety, 236 Ariz. 295, 299, ¶ 17
(App. 2014). “When the grounds for termination of a parent’s rights to one
child are based on abuse of another child,” there must be a “nexus between
the prior abuse and the risk of future abuse to the child at issue.” Id.

¶8            Here, there is reasonable evidence to support the court’s order
terminating Mother’s parental rights to the Children. R.A. told police and
DCS that D.R. hit and kicked him resulting in “quarter-size lumps” on his
head. A DCS case manager testified that R.A. had bruises on his back, neck,
and buttocks. In fact, one of the bruises on R.A.’s buttocks appeared to be
a handprint. Mother refused to acknowledge the possibility that R.A. was
physically abused by D.R., claiming that she was unaware of the bruises on
R.A.’s buttocks. The court found “[Mother and Father’s testimony]
inconsistent and/or evasive in addressing how [R.A.] could have received
those injuries.” See Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18



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                         GABRIELLE F. v. DCS, et al.
                           Decision of the Court

(App. 2009) (stating that the superior court is in the best position to weigh
evidence, observe the parties, and judge the credibility of witnesses).
Despite R.A.’s claims of abuse and the dependency proceeding, Mother
continued to live with D.R. Mother took no steps to protect R.A. from
physical abuse.

¶9             Likewise, there is reasonable evidence supporting the
superior court’s order terminating Mother’s parental rights to F.R.
Although the court did not expressly find a nexus between the abuse of R.A.
and the risk to F.R., “we will presume that the juvenile court made every
finding necessary to support the severance order if reasonable evidence
supports the order” and, “[i]f the juvenile court fails to expressly make a
necessary finding, we may examine the record to determine whether the
facts support that implicit finding.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 50, ¶ 17 (App. 2004).

¶10            Another DCS case manager testified that F.R. would be
abused if left in Mother’s care. The case manager stated that “Mother has
demonstrated a failure to protect [R.A. in the past and in the present]. Past
behavior is the best predictor of future behavior, and it is likely she would
continue to fail to protect her children.” The case manager further stated
that despite D.R.’s abuse of R.A., “[he] has not addressed [that abuse] or
even considered the possibility that the discipline was physical abuse” —
which is indicative of his inability to understand the nature of his actions.
Accordingly, we find that reasonable evidence supports the court’s decision
to terminate Mother’s parental rights to F.R. under A.R.S. § 8-533(B)(2).3

¶11           Lastly, Mother contends the superior court erred by finding
that severance was in the Children’s best interests. “Whether severance is
in the child’s best interests is a question of fact for the juvenile court to
determine,” and we draw all reasonable inferences in favor of the superior
court’s findings. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13
(App. 2002) (citations omitted). “[T]hat the best interests of the child will
be served by removal from a custodial relationship may be established by

3      Because we find that the evidence supports termination of Mother’s
parental rights on the grounds that she failed to protect the Children from
abuse, we need not address her argument that reasonable evidence did not
support termination of her rights to R.A. pursuant to Arizona Revised
Statutes section 8-533(B)(11). Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 3 (App. 2002) (“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.”).


                                       4
                        GABRIELLE F. v. DCS, et al.
                          Decision of the Court

either showing an affirmative benefit to the child by removal or a detriment
to the child by continuing in the relationship.” Id. at 282, ¶ 14 (internal
quotation omitted). “One factor the court may properly consider in favor
of severance is the immediate availability of an adoptive placement.
Another is whether an existing placement is meeting the needs of the child.”
Audra T., 194 Ariz. at 377, ¶ 5 (internal citation omitted).

¶12           Here, the superior court found, by a preponderance of the
evidence, that severance was in the Children’s best interests. As to F.R., she
was not developing emotionally in Mother’s care. F.R.’s current placement,
however, provides her with care for several health issues Mother failed to
treat, and she has exhibited significant emotional growth. As to R.A., his
current placement with paternal grandfather provides him a home free of
abuse. Additionally, although not specifically relied on by the superior
court, we note the testimony showed R.A. will suffer a detriment of
potential abuse by Mother’s failure to protect him if his relationship with
her continues. Both F.R. and R.A. are in “potentially adoptive placements
that are able to care for their respective needs.” Because reasonable
evidence supports the superior court’s findings that severance was in the
Children’s best interests, the court did not err.

                              CONCLUSION

¶13          For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to the Children.




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




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