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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TONISHA J., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, N.M., J.M., C.J., Appellees.
No. 1 CA-JV 22-0132
FILED 2-23-2023
Appeal from the Superior Court in Maricopa County
Nos. JD538480
JS520225
The Honorable Kristin Culbertson, Judge
AFFIRMED
APPEARANCES
Tonisha J., Phoenix
Appellant
Arizona Attorney General’s Office, Mesa
By Catherine Leisch
Counsel for Appellee Department of Child Safety
TONISHA J. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley 1 delivered the decision of the court, in which Vice
Chief Judge David B. Gass and Judge Brian Y. Furuya joined.
P O R T L E Y, Judge:
¶1 Tonisha J. (Mother) appeals the termination of her parental
rights to three of her biological children, C.J., J.M., and N.M. 2 She
challenges the superior court’s finding that the Department of Child Safety
(DCS) was not required to provide reunification services under Arizona
Revised Statutes (A.R.S.) section 8-846(D)(1)(d). We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the evidence, and reasonable inferences
drawn from it, in the light most favorable to sustaining the superior court’s
decision. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13
(App. 2002).
¶3 The children range in age from four to twelve. In May 2021,
Mother took C.J., then three years old, to the pediatrician because the child
was very tired after exposure to someone with COVID-19. The pediatrician
told her to take C.J. to the hospital, where it was found the child had life-
threatening conditions. Specifically, the child had low oxygen levels
requiring intubation, and it was later determined that she had multiple
bone fractures, previous untreated fractures, brain hemorrhages, and a
lacerated liver.
¶4 The doctor overseeing C.J.’s treatment also testified C.J. “had
suffered from chronic, severe malnutrition.” Mother argues that C.J.’s
fractures came from Rickets and playing in a bouncy house. The doctor
testified even though C.J. may have developed Rickets from malnutrition,
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to article
VI, section 3, of the Arizona Constitution.
2 The children were also found dependent as to their fathers, and the fathers
are not parties to this appeal.
2
TONISHA J. v. DCS et al.
Decision of the Court
the disease would not have explained C.J.’s rib fractures. Mother claims
she does not know what caused C.J.’s other injuries and maladies.
¶5 Based on the medical findings and an interview with Mother,
the medical team suspected C.J. was the victim of child abuse and neglect,
and contacted DCS. DCS responded and began its investigation, including
of Mother’s home. Based on its findings at the house, DCS removed J.M.
and N.M., both autistic and non-verbal children. 3 C.J. remained in the
hospital.
¶6 J.M., then eight, and N.M., then nine, exhibited behavioral
issues while in their initial placement with non-family caregivers.
Specifically, they engaged in self-harming acts, as well as hitting others. In
fact, both children were taken to an emergency department at one point
because of their behaviors and caregivers’ inability to calm the children.
¶7 DCS filed a petition for dependency as to the three children
and, alleging abuse and neglect, filed a motion for court approval that it
was not required to provide Mother with reunification services under
A.R.S. § 8-846(D)(1)(d). Mother objected and requested visitation. The
superior court held an evidentiary hearing in July 2021, and subsequently
granted DCS’s motion and denied Mother’s request for visitation. In
September 2021, DCS filed a petition to terminate mother’s parental rights
as to the three children.
¶8 The superior court held a simultaneous dependency and
termination hearing during February and March 2022. The court heard
testimony from two DCS investigators, Mother, a DCS child safety expert,
and the doctor who oversaw C.J.’s hospital treatment. The court also
received numerous exhibits detailing the children’s medical history and
diagnoses. The court subsequently, in signed minute entries dated May 9,
2022, found the children dependent, ordered the case plan to change to
termination and adoption, and terminated Mother’s parental rights as to
the three children.
¶9 Mother timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, A.R.S. §§ 8-235, 12-
120.21(A)(1), and 12-2101(A)(1).
3 Four of her children resided in the home with Mother. The superior court
granted DCS’s motion to dismiss the fourth child from the case after that
child was placed with her biological father.
3
TONISHA J. v. DCS et al.
Decision of the Court
ANALYSIS
I. This court will address the issues raised on appeal.
¶10 DCS argues Mother waived and abandoned her claims by not
complying with ARCAP 13 and not citing to the record or supporting legal
authority. Though this court could deem her failure an abandonment of
her appeal, in the exercise of our discretion, we will address the merits of
the issues raised on appeal, see Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980),
especially given the need to resolve what is in the best interests of the
children. See Kelly v. Kelly, 252 Ariz. 371, 375, ¶ 18 (App. 2021) (stating that
determinations must be made for the best interests of the children).
¶11 DCS also argues Mother waived any challenge to the order
excusing DCS from providing reunification services, including visitation,
because she did not file a special action or appeal that order. A final order
granting DCS’s request not to provide services is appealable. See Francisco
F. v. Ariz. Dep’t of Econ. Sec., 228 Ariz. 379, 381, ¶ 7 (App. 2011). Here,
however, because the superior court’s order was unsigned, it was not an
appealable final order. Ariz. R.P. Juv. Ct. 104(A) 4 (parties may only appeal
final orders “in writing and signed by the judge”). The order became
appealable only after the superior court filed its signed termination order
on May 10, 2022. Because Mother filed a timely appeal from the termination
order, which included the A.R.S. § 8-846(D) order, we have jurisdiction over
that issue.
II. DCS was not required to provide reunification services pursuant
to A.R.S. § 8-846(D).
¶12 Mother argues the superior court erred when it granted DCS’s
motion requesting to be excused from providing reunification services.
¶13 Generally, the superior court must find DCS provided
reasonable reunification services before terminating parental rights. Jessie
D. v. Dep’t of Child Safety, 251 Ariz. 574, 581, ¶ 18 (2021). But the superior
court can order that DCS not provide those services if it finds by clear and
convincing evidence that the parent caused or “reasonably should have
known that another person caused . . . a child to suffer serious physical
injury or emotional injury.” A.R.S. § 8-846(D)(1)(d).
4 Arizona Rule of Procedure for the Juvenile Court 104(A) was amended
on July 1, 2022, but no relevant changes occurred. See Ariz. R.P. Juv. Ct.
601(a)–(b).
4
TONISHA J. v. DCS et al.
Decision of the Court
¶14 Here, DCS alleged abuse and neglect in seeking permission to
not provide reunification services, including visitation. And in granting the
motion, the superior court found by clear and convincing evidence that
Mother caused, or should have known someone else caused, the physical
and emotional injuries to C.J. discovered by medical authorities. Although
Mother argues the child had Rickets and this disorder could have been the
cause of her extensive injuries, the court did not find the argument credible,
and this court will not reweigh the evidence. See Sheena W. v. Dep’t of Child
Safety, 85 Ariz. Cases Dig. 4, 7, ¶ 12 (App. Dec. 8, 2022). Additionally, the
court considered the fact that J.M. and N.M. had significant behavioral
issues and also showed signs of self-harm. On this record, Mother has not
shown the superior court erred in finding DCS was not required to provide
her with visitation or other reunification services.
III. Reasonable evidence supports the superior court’s termination of
Mother’s parental rights as to C.J., J.M., and N.M.
¶15 A superior court may terminate parental rights if clear and
convincing evidence establishes at least one statutory ground and if a
preponderance of the evidence shows termination is in the child’s best
interests. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018).
Because the superior court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts,” this court will affirm an order terminating parental rights if
reasonable evidence supports the order. See Jordan C. v. Ariz. Dep’t of Econ.
Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citations omitted). This court does
not reweigh the evidence and defers to the superior court’s factual findings.
See id.
¶16 To justify termination of parental rights under A.R.S.
§ 8–533(B)(2), DCS must prove a parent has neglected or willfully abused a
child. “[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.” A.R.S. § 8–533(B)(2).
¶17 Mother denies abusing and neglecting her children and
argues the superior court erred in terminating her parental rights. In its
detailed minute entry, the superior court considered the record and
testimony presented and found Mother “willfully abused [C.J.] by inflicting
serious physical and emotional injury.”
¶18 The court also found J.M. and N.M., both nonverbal, autistic
children, “had significant scarring all over” their bodies and other signs of
5
TONISHA J. v. DCS et al.
Decision of the Court
neglect when they were removed and put in placement. Moreover, both
were “completely reliant on a caregiver for all their needs,” and Mother had
not signed the children up for any services appropriate for their
developmental delays and other needs. And though N.M. remains non-
verbal, J.M. has begun to speak a few words since entering care. The record
supports the court’s findings, and we find no error.
IV. The superior court properly found termination was in the
children’s best interests.
¶19 Mother also argues termination is not in the children’s best
interests because the court failed to provide her “a finite window of
opportunities for remediation.” However, the superior court considered
the full record presented at trial and found that “the children have made
slow but steady progress in their behaviors and milestones since being out
of Mother’s care,” and termination would provide them with “a safe and
stable home free of abuse and neglect.” The record supports the findings.
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6