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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           CYNTHIA G., Appellant,

                                        v.

       DEPARTMENT OF CHILD SAFETY, A.G., M.G., Appellees.

                             No. 1 CA-JV 16-0081
                               FILED 10-13-2016


           Appeal from the Superior Court in Maricopa County
                             No. JD527322
               The Honorable Karen L. O’Connor, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee

David W. Bell, Higley
Counsel for Appellant



                       MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
                         CYNTHIA G. v. DCS, et al.
                           Decision of the Court

G O U L D, Judge:

¶1           Cynthia G. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her children. She argues insufficient
evidence supports the statutory grounds for severance and that the
severance was not in the children’s best interests. For the following reasons,
we affirm.

              FACTS AND PROCEDURAL BACKGROUND

¶2             On January 9, 2014, Mother brought her baby, M.G., to the
pediatrician for what she claimed were gastrointestinal problems. While
she was waiting to see the doctor, she observed that M.G. experienced pain
when she moved his right arm; she mentioned this to the pediatrician and
was directed to get x-rays of his arm. X-rays showed M.G. had a condylar
fracture of his right humerus and a metaphyseal fracture of his wrist. A full
skeletal scan also showed he had healing posterior fractures of the 11 th rib
on the right and the 5th, 6th, and 10th ribs on the left. The state of healing of
the fractures indicated they were 10-14 days old. Additionally, M.G. had a
fresh posterior rib fracture, less than 10-14 days old, of his left 7th rib.

¶3           Mother explained that M.G.’s arm could have been fractured
when Father1 lifted him up by his arms. She speculated the rib fractures
could have occurred when M.G. fell off the couch in late December.
However, neither of these explanations would have created the amount of
force required to cause the fractures. Upon discovering the severity and
nature of M.G.’s fractures, the Department of Child Safety (“DCS”) became
involved and took both M.G. and his brother A.G. into care. A.G. was about
one and-a-half years old at the time, and M.G. was two-and-a-half-months
old.

¶4             During the two-year dependency, Mother and Father
complied with the services provided by DCS. However, they failed to make
the necessary behavioral changes in conjunction with the services.
Specifically, while both parents acknowledged they were the sole
caretakers of M.G, neither of them offered any plausible explanation for the
cause of his injuries.

¶5           In May 2015, DCS moved to terminate both Mother’s and
Father’s parental rights. The Department moved for severance on the


1     Father’s parental rights to both children were also terminated at the
severance trial; however, Father is not a party to this appeal.


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                         CYNTHIA G. v. DCS, et al.
                           Decision of the Court

grounds of willful abuse pursuant to Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(2) and out-of-home placement for 15 months or longer
pursuant to A.R.S. § 8-533(B)(8)(c).

¶6            The court held a contested severance hearing as to both
parents. At the severance hearing, DCS presented evidence of the fractures
to M.G.’s arm and ribs. Medical testimony showed these injuries were the
result of non-accidental trauma, or abuse. Additionally, DCS presented
testimony that, given the injuries to M.G., A.G., a vulnerable child who was
diagnosed with Down Syndrome and Hirschprung’s Disease from a young
age, was also at risk of abuse in the home. A DCS supervisor testified the
children were adoptable and severance was in their best interests because
they needed permanency.

¶7           The court terminated Mother’s and Father’s parental rights to
both children, and Mother timely appealed.

                               DISCUSSION

I.     Willful Abuse

¶8            Mother challenges the sufficiency of the evidence regarding
willful abuse. Mother argues that because the evidence was inconclusive
as to how M.G.’s injuries occurred, DCS failed to show by clear and
convincing evidence that Mother had abused or neglected M.G. under
section 8-533(B)(2).

¶9            “[W]e will affirm a termination order that is supported by
reasonable evidence.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18 (App. 2009). As the trier of fact, the juvenile court “’is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.’” Id. (quoting Ariz. Dep't of Econ. Sec.
v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004)). Thus, we “view the evidence
and reasonable inferences to be drawn from it in the light most favorable to
sustaining the court’s decision.” Jordan C., 223 Ariz. at 93, ¶ 18. The juvenile
court “retains great discretion in weighing and balancing the interests of
the child, parent, and state”; and in “the resolution of conflicts in the
evidence.” Jennifer S. v. Dep’t of Child Safety, 1 CA-JV 15-0333, 2016 WL
4193917, at *4, ¶ 16 (Ariz. App. Aug. 9, 2016). We will only reverse a
termination order for insufficient evidence if, “as a matter of law, no
reasonable fact-finder could have found the evidence satisfied the
applicable burden of proof.” Jade K. v. Loraine K., 2 CA-JV 2016-0067, 2016
WL 4978349, at *2, ¶ 6 (Ariz. App. Sept. 16, 2016).



                                       3
                          CYNTHIA G. v. DCS, et al.
                            Decision of the Court

¶10            “To justify termination of the parent-child relationship, the
trial court must find, by clear and convincing evidence, at least one of the
statutory grounds set out in section 8-533, and also that termination is in
the best interest of the child.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 249, ¶ 12 (2000). A.R.S. § 8-533(B)(2) “justifies termination if ‘a child’ is
abused or neglected by either the parent or another person and the parent
knew or should have known about the abuse or neglect.” Linda V. v. Ariz.
Dept. of Econ. Sec., 211 Ariz. 76, 78, ¶ 9 (App. 2005). Under subsection (B)(2)
a parent who “abuse[s] or neglect[s] [her child], or who permit[s] another
person to abuse or neglect [her child], can have [her] parental rights to [any
of her] other children terminated even though there is no evidence that the
other children were abused or neglected.” Id. at 79, ¶ 14. To prove the
statutory ground, “[c]ircumstantial evidence has the same probative value
as direct evidence.” Castro v. Ballesteros-Suarez, 222 Ariz. 48, 54, ¶ 21 (App.
2009).

¶11           Clear and convincing evidence supports the juvenile court’s
findings that Mother willfully abused M.G. or reasonably should have
known M.G. was being abused by Father. At the severance trial, both the
treating physician and the pediatric nurse practitioner testified that the
nature of M.G.’s fractures indicated they were caused by multiple instances
of severe non-accidental trauma. The parents’ proffered explanations for
M.G.’s injuries did not explain the fractures and were refuted by the
medical testimony. M.G.’s treating physician testified the fracture to M.G.’s
right arm was an exceedingly unusual fracture in a two-and-a-half-month
old, and that it could not have been caused by the child’s movement or by
being lifted by his arms. The doctor opined that the arm fracture, coupled
with the presence of both healed and acute rib fractures, also made
accidental trauma an unlikely cause of the injuries.

¶12           Circumstantial evidence establishes that Mother either was
the abuser or Mother knew Father was the abuser and Mother failed to
protect M.G. from Father. Throughout the dependency and severance
proceedings Mother continued to deny that either she or Father was
responsible for M.G.’s fractures. However, both parents maintained that
they were the only caregivers for the children, and that neither of the
children had been left alone with another individual other than for medical
procedures. As the sole caregivers of the children, Mother and Father
should be able to identify the abuser; yet, Mother continues to deny that she
or Father did anything to hurt M.G.




                                        4
                         CYNTHIA G. v. DCS, et al.
                           Decision of the Court

¶13           Accordingly, DCS presented sufficient evidence on which the
court could find that Mother knew or should have known M.G. was being
abused.

¶14            The record also shows there was sufficient evidence to
terminate Mother’s rights to A.G. We note that Mother does not specifically
challenge the termination of her parental rights to A.G. Nonetheless, our
review of the record shows that having found severance was justified as to
M.G. on the grounds of willful abuse, the juvenile court was warranted in
severing Mother’s rights to A.G. Specifically, the record shows “a nexus
between the abuse or neglect committed on [M.G.] . . . and the risk that such
abuse would occur to [A.G.]” a vulnerable, special needs toddler. Mario G.
v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 15 (App. 2011).2

II.    Best Interests

¶15            Mother also challenges the court’s best interests finding. In a
best interests inquiry, “the interests of the parent and child diverge because
the court has already found the existence of one of the statutory grounds
for termination by clear and convincing evidence.” Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 4, ¶ 15 (2016) (quoting Kent K. v. Bobby M., 210 Ariz. 279, 286,
¶ 35 (2005)).

¶16           DCS must show by a preponderance of the evidence that
severance is in the children’s best interests. Kent K., 210 Ariz. at 288, ¶ 41.
DCS can do so by presenting credible evidence “demonstrating how the
child would benefit from a severance or be harmed by the continuation of
the relationship.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50,
¶ 19 (App. 2004). The Department could also show the children are
adoptable, or that the current placement is meeting the children’s needs.
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998);
Maricopa Cny. Juv. Act. No. JS-501904, 280 Ariz. 348, 352 (App. 1994).

¶17           Here, the DCS supervisor testified that severance was in the
children’s best interests because the children would not be safe if they
remained in Mother’s care. The record supports the court’s finding that the
children are both very young and vulnerable. The record also supports the
court’s finding that because Mother and Father had still not addressed the


2      Having found severance was justified on the grounds of willful
abuse, we need not consider whether the juvenile court’s findings justified
severance on the ground of 15-months’ time in care. Michael J., 196 Ariz. at
251, ¶ 27.


                                       5
                        CYNTHIA G. v. DCS, et al.
                          Decision of the Court

issues of M.G.’s abuse, the children would be at risk of abuse if returned to
the home. The court further found the children are adoptable and
severance would afford them the opportunity to have a permanent, safe
and loving home. We find no error.

                              CONCLUSION

¶18           For the reasons above, we affirm the termination of Mother’s
parental rights to A.G. and M.G.




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




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