Sharece N. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHARECE N., Appellant,

v.

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

No. 1 CA-JV 18-0473
FILED 6-11-2019

Appeal from the Superior Court in Maricopa County
No. JD31837
The Honorable Jeanne M. Garcia, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
 SHARECE N. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.

W I N T H R O P, Judge:

¶1 Sharece N. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to child R.F. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 R.F. was born in 2006, and she is the youngest of Mother’s
three children. The Department of Child Safety (“DCS”) first became
involved with the family when all three children were removed from the
home due to allegations that Mother had failed to protect R.F. and her older
sister (J.F.) from sexual abuse by Mother’s boyfriend. R.F. told relatives that
Mother’s boyfriend once performed oral sex on her while she was in the
bathroom, and her sister reported the boyfriend once got in her bed while
he was intoxicated and naked and touched her breasts. The children’s aunt
and grandmother tried to help them tell Mother about the abuse, but
“[Mother] became angry, insisted that the girls were lying, and refused to
listen.”

¶3 The aunt then called the police in October 2015 to report the
children’s statements. Both girls completed forensic interviews in
November 2015 and repeated their allegations. R.F.’s sister stated she did
not feel that she and R.F. were safe at home. In December 2015, DCS took
all three children into custody and filed a dependency petition alleging
Mother had failed to protect R.F. and her older sister from sexual abuse by
Mother’s boyfriend.1 The girls then completed a second forensic interview.
At that time, however, they began to make inconsistent statements about
the abuse. Specifically, R.F. asserted that the boyfriend did not touch her in
the bathroom and that she had lied because “she was mad at her mom for
not spending time with her.” Yet later in the same interview, R.F. stated
that she was “mad about what [boyfriend] had done to her” and about

1 Mother contested the allegations in the petition, and a dependency
hearing was held in August 2016.

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Mother not standing up for her and instead choosing to “stick up” for the
boyfriend. R.F.’s sister stated the incident was an accident and she had
begun locking the bedroom door so that the “accident” would not happen
again.

¶4 Throughout the dependency process, both girls attempted to
talk to Mother about the abuse, but Mother refused to listen. At the
dependency hearings, Mother asserted the incident with R.F.’s sister was
an accident and the boyfriend got into the wrong bed because he was
intoxicated. Mother also stated that R.F. was lying because the boyfriend
had broken his leg and was incapacitated at the time of the alleged abuse.
The juvenile court adjudicated all three children dependent in August 2016.

¶5 As part of the proposed plan for reunification, DCS offered
Mother counseling services. She completed a recommended psychological
evaluation in August 2016, and the evaluating psychologist opined that the
children should not be returned unless Mother could “show a commitment
to protect her children from being exposed to the alleged abuser.”2

¶6 The juvenile court granted Mother unsupervised visitation
for the girls in June 2017. At a report and review hearing, Mother assured
the court that she had ended her relationship with the boyfriend. The girls,
however, told their grandmother that during one unsupervised visit
Mother picked up the boyfriend from work with the girls in the car. The
girls also stated that during another unsupervised visit the boyfriend was
in the home arguing with Mother. After the case manager reported these
incidents, the juvenile court revoked Mother’s unsupervised visits.

¶7 On January 23, 2018, DCS filed a motion to terminate
Mother’s parental rights as to R.F. Mother contested the motion and a
termination adjudication hearing was held in September 2018. At the
hearing, the grandmother testified that Mother had told her she did not
need to stop seeing the boyfriend because the allegations of abuse had not
been proven. Mother denied making that statement and asserted she had

2 The sisters’ older brother was returned to Mother’s custody in 2017
because he was almost eighteen years old, which the court considered “old
enough to protect himself,” so that he was not subject to the same safety
concerns as the girls.

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not talked to the boyfriend since the children were taken away in 2015.3 She
testified that she and the boyfriend were in the same location once in 2018
but they did not speak to each other.

¶8 The case manager testified that just because the children
recanted their reports on different occasions did not mean their original
accounts of abuse were false. She stated Mother would regularly interrupt
the girls when they tried to talk about the alleged abuse during their
scheduled meetings, telling the girls they better “shut [their] mouth” before
they said anything to jeopardize her parental rights. After these
confrontations, the girls would recant their allegations, and in December
2016, R.F. reported that Mother had pressured her to lie about the abuse.
The case manager explained that the children’s behavior was consistent
with that of other children who have been abused and opined that, based
on all the relevant considerations, R.F. probably had been abused.

¶9 After a two-day trial, the juvenile court took the matter under
advisement and subsequently terminated Mother’s parental rights, finding
Mother failed to protect R.F. from future abuse pursuant to Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(2) (2019).4 Alternatively, the
court found Mother was unable to remedy the circumstances causing R.F.’s
out-of-home placement pursuant to § 8-533(B)(8)(a) and (B)(8)(c). The court
also found that termination of Mother’s parental rights was in R.F.’s best
interests.5 Mother timely appealed, and we have jurisdiction under A.R.S.
§ 8-235(A).6

3 In contrast to her testimony, Mother admitted in a progress report
submitted to the court in 2017 that she was having “minimal contact” with
the boyfriend.

4 Absent material revision after the relevant dates, we cite the current
version of the statutes.

5 The juvenile court granted a petition for guardianship as to R.F.’s
older sister. Originally, Mother filed a notice of appeal challenging both the
guardianship and the termination of rights for R.F.; however, in her
opening brief, Mother abandoned her appeal as to the grant of
guardianship for R.F.’s sister.

6 The juvenile court also terminated parental rights for R.F.’s father,
but he is not a party to this appeal.

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 SHARECE N. v. DCS, et al.
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ANALYSIS

I. Standard of Review

¶10 To terminate parental rights, a juvenile court must find by
clear and convincing evidence at least one statutory ground for termination
pursuant to A.R.S. § 8-533(B) and that termination is in the best interests of
the child. See Kent K. v. Bobby M., 210 Ariz. 279, 281-82, ¶ 7 (2005); Maricopa
Cty. Juvenile Action No. JS–6520, 157 Ariz. 238, 242 (App. 1988). We review
the decision of the juvenile court for an abuse of discretion and will affirm
if it is supported by sufficient evidence. Kenneth B. v. Tina B., 226 Ariz. 33,
36, ¶ 12 (App. 2010) (citation omitted). We view the evidence in the light
most favorable to sustaining the juvenile court’s ruling, Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20 (2000), and “we will not reverse a
termination order for insufficient evidence unless, 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., 240 Ariz. 414, 416, ¶ 6
(App. 2016) (citation omitted).

II. Sufficient Evidence Supports the Termination of Mother’s Parental
Rights Under A.R.S. § 8-533(B)(2)

¶11 Mother contends that insufficient evidence supports the
termination of her parental rights under A.R.S. § 8-533(B)(2), 3(B)(8)(a), and
(B)(8)(c). Because we determine sufficient evidence supports the
termination pursuant to A.R.S. § 8-533(B)(2), we do not address the other
statutory grounds for termination. 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.”).

¶12 Section 8-533(B)(2) allows the juvenile court to terminate
parental rights upon a finding of abuse or neglect by the parent. This
includes “situations in which the parent knew or reasonably should have
known that a person was abusing or neglecting a child.” Id. If there are
multiple children in the home, a finding that one child was abused is
sufficient evidence to terminate the rights for the other child—even if there
is no evidence of abuse as to the other child. Linda V. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 76, 79, ¶ 14 (App. 2005) (“[W]e hold that § 8-533(B)(2) can
mean that parents . . . 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.”). To justify termination on that basis, there must be a

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connection, or “nexus,” between the established abuse and the risk of future
abuse to the other child at issue. Id. at 80 n.3, ¶ 17.7

¶13 Mother first argues the juvenile court could not have relied on
R.F.’s testimony that the boyfriend performed oral sex on her as evidence
to support the termination order because R.F. recanted her statements.
Mother asserts that when a child “recants their reports of abuse, with no
corroborating evidence, then this cannot be ‘clear and convincing’
evidence.”

¶14 DCS provided evidence that R.F. recanted her report of abuse
under duress and only because “Mother told both girls that they would be
taken away if they told the truth.” DCS also provided statements from
R.F.’s relatives, teachers, and evaluating doctors showing that R.F.
consistently reported to others the sexual acts committed by the boyfriend.
In addition, the case manager opined that R.F.’s contradictory statements
to DCS were consistent with her being a molestation victim.

¶15 The termination order is unclear as to the extent the superior
court relied on R.F.’s statements to support the finding under § 8-533(B)(2).
Nevertheless, the record—including the statements provided by other
family members, teachers and health care providers—affords sufficient
evidence outside R.F.’s statements to support a determination that the
abuse to R.F. occurred, and that Mother knew of the abuse towards R.F. but
simply chose to believe otherwise. See Ruben M. v. Ariz. Dep’t of Econ. Sec.,
230 Ariz. 236, 240, ¶ 22 (App. 2012) (holding the court’s legal conclusion for
the statutory ground at a termination hearing must be sufficiently
supported by at least one factual finding).

7 In Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 154, ¶ 32-33 (2018),
our supreme court held that once a statutory ground for termination under
§ 8-533(B) has been established, the relevant inquiry then becomes whether
termination is in the child’s best interests. Recently, a panel of this court,
interpreting Alma S., concluded that the issue of “whether a connection
exists between a parent’s abuse of one of their children and the risk of abuse
to their other children” was not a factual finding that could support
grounds for termination under § 8-533(B)(2). See Sandra R. v. Dep’t of Child
Safety, 246 Ariz. 180, 187, ¶ 22 (App. 2019). Instead, such evidence is more
properly considered as a part of the best interests inquiry. Id. Here, the
juvenile court addressed the connection between the incident with the older
sister and R.F.’s risk for future abuse in both the statutory grounds for
termination and best interest analyses.

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¶16 As to the alternative analysis, relying on a finding of abuse of
R.F.’s sister to support termination of parental rights as to R.F., Mother
asserts that the proof concerning the boyfriend’s alleged abuse of R.F.’s
sister is insufficient to support termination under § 8-533(B) and, in any
event, she could not have known the boyfriend would get in the bed with
R.F.’s sister while intoxicated. As such, Mother contends this one incident
involving another child could not support a finding that R.F. was at risk for
future acts of abuse. We disagree. The record shows DCS provided
sufficient evidence to support the finding that the abuse occurred, and that
a “nexus” existed between the established incident involving R.F.’s sister
and the risk of abuse to R.F.

¶17 First, Mother concedes she knew that the boyfriend got into
the bed and inappropriately touched her older daughter, but she asserts the
incident was an accident. Even so, R.F.’s sister reported that she was afraid
it would happen again and began locking her bedroom door.
Notwithstanding that her daughter feared future incidents, Mother failed
to take protective action—the boyfriend continued living at the house until
DCS removed the children from the home.

¶18 Moreover, even after the children were adjudicated
dependent due to the alleged abuse, Mother admitted in April 2017 to
having continued contact with the boyfriend. Mother was granted
unsupervised visits with her children, and—against the specific advice of
Mother’s evaluating psychologist—the girls reported that Mother allowed
the boyfriend to be around them on two additional occasions. The juvenile
court ultimately found that even if Mother believed the boyfriend entered
her older daughter’s bed by “accident,” Mother did nothing to ensure that
another “accident” would not occur. The juvenile court was in the best
position to evaluate the credibility of the testimony given at the hearing—
along with the reports made by R.F. and her sister—and we will not disturb
its determination on appeal. Alma S., 245 Ariz. at 151-52, ¶¶ 18-19.

¶19 Mother does not challenge the best interests finding on
appeal; however, we conclude the record also supports the juvenile court’s
finding by a preponderance of the evidence that termination was in R.F.’s
best interest. “To establish that termination is in the child’s best interest,
the court must find either that the child will benefit from termination of the
relationship or that the child would be harmed by continuation of the
relationship.” See James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18
(App. 1998). “Evidence of an existing adoption plan can be considered a
benefit to the child.” Id. R.F.’s maternal grandparents served as her
temporary placement during the dependency and termination proceedings.

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The grandparents agreed to immediately adopt her upon termination of
Mother’s rights, and the juvenile court found that R.F. would benefit from
the adoption because she would be in a safe and stable environment away
from any further abuse by the boyfriend.

CONCLUSION

¶20 Based on the foregoing reasons, we affirm the juvenile court’s
order terminating Mother’s parental rights.

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

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