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Sandra R. v. Department of Child Safety

Court of Appeals of Arizona, First Division

January 29, 2019

SANDRA R., SERGIO C., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, M.R., F.M., J.M., Appellees.

          Appeal from the Superior Court in Maricopa County No. JD20586 JS19097 The Honorable Alison Bachus, Judge.

          John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Sandra R.

          Law Office of H. Clark Jones LLC, Mesa By H. Clark Jones Counsel for Appellant Sergio C.

          Arizona Attorney General's Office, Tucson By Autumn L. Spritzer Counsel for Appellee Department of Child Safety

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

          OPINION

          MCMURDIE, JUDGE.

         ¶1 Sandra R. ("Mother") appeals the termination of her parental rights to her three children: M.R., born in 2008; F.M., born in 2015; and J.M., born in 2017. Sergio C. ("Father") appeals the termination of his rights to their two children in common, F.M. and J.M.[1] We affirm the termination orders and hold: (1) the court committed harmless error by allowing the Department of Child Safety ("DCS") to introduce statements from scientific articles without meeting the foundation requirements of Arizona Rule of Evidence 803(18); (2) sufficient evidence supports the abuse finding related to the shaken-baby injury (nonaccidental trauma) even though the evidence did not prove which parent abused the child; and (3) under Alma S. v. DCS, 245 Ariz. 146 (2018), the "constitutional nexus" requirement established by Linda V. v. ADES, 211 Ariz. 76 (App. 2005), is considered under the totality of the circumstances in determining whether termination is in the best interests of the child.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In 2013, Mother and her five-year-old daughter M.R. began living with Father. Mother subsequently gave birth to F.M. and J.M. In April 2017, six-week-old J.M. slept most of the day and vomited "a lot" that evening. Mother noticed that J.M.'s arms began shaking at various times. Assuming it was a stomach issue, Father went to the store to buy tea for J.M. Meanwhile, J.M.'s condition worsened. J.M. turned pale, started moaning, could not fully open her eyes, and her arms became stiff. After Father returned from the store, Mother and Father took J.M. to an urgent-care center where they waited more than 40 minutes for the doctor to evaluate her. Upon examination, the doctor told Mother and Father to immediately take J.M. to Phoenix Children's Hospital ("PCH").

         ¶3 At PCH, a scan revealed that J.M had a large subdural hemorrhage on the left side of her brain and a smaller subdural hemorrhage on the right. She also had damage to her optic nerve and severe retinal hemorrhaging in both eyes. The hemorrhaging caused her brain to shift out of position and compress her brainstem. Because J.M.'s life was in danger, doctors had to perform emergency neurosurgery. After surgery, Dr. Melissa Jones, a pediatrician with a specialty in child abuse pediatrics, evaluated J.M. After ruling out possible medical causes, Dr. Jones determined the injuries resulted from abusive head trauma and Mother and Father provided no alternative explanation for the cause of J.M.'s injuries. PCH reported the injuries, and DCS took custody of all three children and filed dependency petitions. The juvenile court later established the case plan as severance and adoption.

         ¶4 In July 2017, DCS petitioned to terminate Mother's rights to J.M., F.M., and M.R., and Father's rights to J.M. and F.M., under the abuse ground. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B). Over seven months, DCS offered Mother and Father services, including hair-follicle testing to rule out drug abuse, psychological evaluations, individual counseling, and a parent aide during visits with the children. Although Mother and Father participated in services, in discussions with counselors, they continued to minimize J.M.'s severe injuries and provided no further explanation for how the injury occurred.

         ¶5 The juvenile court held a three-day termination hearing. Dr. Jones testified for DCS, opining that J.M.'s injuries resulted from nonaccidental trauma. Dr. Ruth Bristol, J.M.'s pediatric neurosurgeon, testified on the manner and extent of J.M.'s injuries. Mother and Father's expert, Dr. Joseph Scheller, a pediatric neurologist with specialties in pediatric neurology and neuroimaging, opined that J.M.'s injuries most likely resulted from an unusual complication of a birth injury. The court took the matter under advisement and later issued an order terminating Mother's rights to J.M., F.M., and M.R., and Father's rights to J.M. and F.M. Mother and Father timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

         DISCUSSION

         ¶6 To terminate a parent-child relationship, the court must find at least one statutory ground for termination under A.R.S. § 8-533(B) by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). The court must also find termination is in the child's best interests by a preponderance of the evidence. Id. We review the court's termination determination for an abuse of discretion and will affirm unless no reasonable evidence supports the court's findings. Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). The juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).

         A. The Court Committed Harmless Error by Allowing DCS to Cross-Examine Mother and Father's Expert Witness with Publications in His Field Without Laying Proper Foundation.

         ¶7 Mother and Father assert that DCS failed to lay proper foundation for the scientific articles it used to impeach Mother's and Father's expert witness, Dr. Scheller. Although we agree the court erred by not requiring DCS to lay the proper foundation for the publications, we conclude the error was harmless. See Monica C. v. ADES, 211 Ariz. 89, 94, ¶ 22 (App. 2005) (harmless error applies in juvenile proceedings).

         ¶8 This court will affirm the juvenile court's evidentiary rulings "absent a clear abuse of its discretion and resulting prejudice." Lashonda M. v. ADES, 210 Ariz. 77, 82-83, ¶ 19 (App. 2005). Abuse of discretion occurs when a court's decision is "manifestly unreasonable" or based on "untenable" grounds. Id. (quoting Quigley v. City Court of Tucson, 132 Ariz. 35, 37 (1982)).

         ¶9 Arizona Rule of Evidence 803(18) governs the admission of hearsay statements from learned treatises, periodicals, or pamphlets. Rule 803(18) provides that statements from such publications ...


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