from the Superior Court in Maricopa County No. JD20586
JS19097 The Honorable Alison Bachus, Judge.
L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for
Appellant Sandra R.
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
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E.
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. 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.
AND PROCEDURAL BACKGROUND
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
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.
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.
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).
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).
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
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
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)).
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