In Re Term of Parental Rights as to K.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO K.C.

No. 1 CA-JV 24-0030
FILED 12-19-2024

Appeal from the Superior Court in Maricopa County
No. JD43112
JS21730
The Honorable Marischa Hope Gilla, Judge

AFFIRMED

COUNSEL

Maricopa County Office of the Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ingeet P. Pandya
Counsel for Appellee Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda L. Adams
Counsel for Child
 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 James C. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, K.C. He argues the court
violated his due process rights by drawing an adverse inference from his
decision to not testify at the termination hearing. For the following reasons,
we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 Father and Stephanie K. (“Mother”)2 are the biological
parents of K.C., born on May 8, 2023. The Department of Child Safety
(“DCS”) became involved with this family upon learning K.C. had
significant injuries due to suspected physical abuse or nonaccidental
trauma. DCS and law enforcement officers interviewed the parents who
provided conflicting stories and timelines regarding K.C.’s injuries. The
court found K.C. dependent as to parents and DCS moved to terminate
parents’ parental rights under the abuse ground.

¶3 Meanwhile, law enforcement officers obtained text messages,
photographs, and web search history from the parents’ cell phones which
revealed potentially incriminating information. Parents were arrested and
charged with criminal child abuse.

¶4 While criminal charges were pending, the court held a three-
day termination hearing. At the hearing, Father was called by DCS but
declined to answer questions about K.C.’s injuries, asserting his Fifth
Amendment rights. Mother testified she noticed marks and bruises on K.C.
but when she asked Father about them, he belittled her or made her feel
stupid for asking about them. She also testified Father hurt K.C. on multiple

1 Facts are viewed in the light most favorable to affirming the juvenile
court’s ruling. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234
¶ 13 (App. 2011).

2 Mother is not a party to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

occasions. A detective who investigated the abuse testified that based on all
the evidence, including the photographs and text messages extracted from
the parents’ phones, he suspected Father had caused K.C.’s injuries. The
court terminated Father’s parental rights to K.C. under the abuse ground
pursuant to Arizona Revised Statute (“A.R.S.”) § 8-533(B)(2).

¶5 We have jurisdiction over Father’s timely appeal under
Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235, 12-
120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶6 Father’s sole argument on appeal is that the court improperly
drew an adverse inference from his decision to not testify at the termination
hearing because he was facing criminal charges based on the same
allegations.

¶7 “We review the court’s decision to draw a negative inference
for clear error.” In re K.C., 1 CA-JV 23-0179, 2024 WL 1532698, at *2 ¶ 12
(Ariz. App. Apr. 9, 2024) (citing Melissa W. v. Dep’t of Child Safety, 238 Ariz.
115, 117 ¶¶ 7–8 (App. 2015)). “A juvenile court’s drawing a negative
inference when a parent fails to testify at a severance hearing is particularly
appropriate.” Melissa W., 238 Ariz. at 117 ¶ 6. In such hearings, the court
determines whether severance of parental rights is in the child’s best
interests. See A.R.S. § 8-533(B). The inquiry focuses on the parent’s present
ability to successfully and safely parent the child. See id.

¶8 Here, the court found DCS had proven “by a preponderance
of the evidence it would be in [K.C.’s] best interest to terminate Father’s
parental rights.” In so doing, the court considered the parent-child
relationship, the presence of abuse justifying termination, and K.C.’s
adoptability. The court also found “Father did not testify” and that “[h]is
failure to testify is deemed a factor against him.” Nothing prohibits
drawing such an inference, which is expressly authorized by law. See
Melissa W., 238 Ariz. at 117 ¶ 5 (citing Baxter v. Palmigiano, 425 U.S. 308, 318
(1976) (“[T]he Fifth Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify in response to probative
evidence offered against them . . . .”)); Montoya v. Superior Ct., 173 Ariz. 129,
131 (App. 1992) (trial judge may draw negative inference from father’s
invocation of Fifth Amendment).

¶9 Father counters that he was “forced to choose between two
rights,” and the court “penalized” him for exercising his privilege against
self-incrimination, violating his due process rights. We disagree.

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 IN RE TERM OF PARENTAL RIGHTS AS TO K.C.
Decision of the Court

¶10 A witness may claim a Fifth Amendment right against
compulsory self-incrimination in any proceeding. See Ming T. v. Ariz. Dep’t
of Econ. Sec., 202 Ariz. 76, 79 ¶ 13 (App. 2001). But the right against self-
incrimination does not immunize a person from all consequences in all
cases. As relevant here, in civil litigation—like the termination proceedings
at issue—courts may properly draw an adverse inference from the
invocation of that right. See Baxter, 425 U.S. at 318; Wohlstrom v. Buchanan, 180 Ariz. 389, 391 n.2 (1994) (“[I]n civil cases, fact finders are entitled to
draw negative inferences against those who assert Fifth Amendment rights
against self-incrimination.”). Such negative inferences are not penalties for
invoking the Fifth Amendment right and do not share the punitive
characteristics or purposes of penalties, like striking of pleadings, entry of
default judgment, or imposition of sanctions. See Montoya, 173 Ariz. at 131.

¶11 Father correctly observes that cases involving termination of
parental rights involve a constitutional right—the “fundamental liberty
interest of natural parents in the care, custody, and management of their
child.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). Yet, when it comes to
proceedings to discern and protect the best interests of the children
involved, there is “little benefit in adopting an approach that would permit
a parent to forgo, without consequence, testifying about his or her ability to
parent or about other circumstances relevant to the court’s determination.”
Melissa W., 238 Ariz. at 117 ¶ 6. We discern no error in the court’s drawing
of a negative inference.

CONCLUSION

¶12 We affirm.

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

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