Joshua W. v. Dcs, E.W.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.W., Appellees.

No. 1 CA-JV 21-0108
FILED 11-18-2021

Appeal from the Superior Court in Maricopa County
No. JD36906, JS19894
The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
 JOSHUA W. v. DCS, E.W.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani
joined.

T H U M M A, Judge:

¶1 Joshua W. (Father) appeals the superior court’s order
terminating his parental rights to his son E.W. Because Father has shown
no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Andrea F. (Mother) are the parents of E.W., born
in January 2017, and J.W., born in December 2018. At a doctor’s
appointment when E.W. was one year old, Mother reported that he had
been unable to put any weight on his right leg for the past week. X-rays
revealed a fractured femur. The fracture was a spiral fracture, indicating it
had been caused by twisting. The fracture also was healing, suggesting that
it had occurred 10 days or more before being diagnosed.

¶3 At the pediatrician’s urging, Mother took E.W. to the
emergency room. Medical personnel concluded that the injury, which the
parents could not explain, appeared highly suspicious for nonaccidental
trauma. But no one notified law enforcement or the Department of Child
Safety (DCS).

¶4 Later that year, Mother gave birth to J.W. He was healthy,
though Mother later described him as colicky, or fussy with bouts of
continual crying. One day when J.W. was two weeks’ old, Mother and
Father were alone with both children until about 2:00 p.m. Mother then
went to the grocery store. Before leaving, Mother handed J.W., who was
crying, to Father and asked him to burp the infant. When she returned 15
minutes later, Mother found Father holding J.W. The infant was
“unresponsive and limp,” his head was tilted back, and he was gasping for
air. The parents did not immediately call 9-1-1 or take J.W. to an emergency
room. Instead, Father searched the internet for J.W.’s symptoms; the results
suggested the parents needed to seek immediate medical attention. About
20 minutes later, Mother drove J.W. to the nearest urgent care.

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 JOSHUA W. v. DCS, E.W.
Decision of the Court

¶5 From urgent care, J.W. was transferred to Phoenix Children’s
Hospital where he died 10 days later. J.W. had sustained significant brain
injury, including a skull fracture and swelling from extensive bleeding,
retinal hemorrhages, and like his brother before him, a fractured femur.
Doctors concluded J.W.’s injuries were “highly associated with child abuse”
and that his particular femur fracture was the sort that typically occurs
“either with pulling [and] twisting or violent shaking.” Doctors found no
other potential causes for J.W.’s injuries, ruling out infection, disease, or
birth trauma. Other medical providers testified that J.W.’s skull fracture
and injuries required “some sort of force applied to the head and to an
object.” and were consistent with abusive head trauma.

¶6 An autopsy confirmed J.W.’s diagnosed injuries, and found
additional injuries to his neck, spine, and tibia. The medical examiner
concluded that J.W. died from complications of impact of his head with a
hard surface, and that the manner of death was homicide. When Mother
and Father offered hospital staff no plausible explanation for J.W.’s injuries,
DCS took immediate custody of E.W. and filed a dependency petition.

¶7 The Avondale Police Department began a criminal
investigation. Mother told investigators she and Father were J.W.’s sole
caretakers since his birth and when she asked Father what had happened
to J.W., he stated, “I don’t know. He was crying then he just suddenly
stopped and . . . appear[ed] unresponsive.” Father, in turn, told
investigators that J.W. had been “constantly crying” since his birth and that
after Mother left for the store that day, Father “tried everything to console”
J.W., but “nothing seemed to make him stop crying.” Father told
investigators he was patting J.W. on his back when he noticed the infant
suddenly stop crying and lose consciousness. The parents each told
investigators that J.W. had suffered no falls or accidents that would explain
his injuries. When police interviewed Mother again a few days later,
however, she told them that after her first interview, Father admitted he
had become “really frustrated” and “bounc[ed]” J.W. repeatedly on his
knee until he “went unresponsive.”

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 JOSHUA W. v. DCS, E.W.
Decision of the Court

¶8 DCS moved to terminate the parents’ rights to E.W. based on
abuse and neglect. See Ariz. Rev. Stat. (A.R.S.) § 8-533(2) (2021).1 The
superior court held a combined dependency and termination adjudication
over six days in November and December 2019. The court later issued an
order terminating the parents’ rights to E.W.

¶9 In a previous appeal, this court noted the record contained
substantial evidence showing neglect and abuse of J.W., but concluded that
the superior court had not made sufficient findings of fact and conclusions
of law. This court therefore reversed and remanded the case for
clarification. See Andrea F. & Joshua W. v. Dep’t of Child Safety, 2021 WL
162020 ¶¶ 27, 30 (Ariz. App. Jan. 19, 2021) (mem. dec.). In March 2021, the
superior court issued a supplemental order confirming the termination of
both parents’ rights. This court has jurisdiction over Father’s timely appeal
pursuant to Article 6, Section, 9, of the Arizona Constitution, A.R.S. § 8-
235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 103-104.

DISCUSSION

¶10 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground in
A.R.S. § 8–533(B) has been proven and must find by a preponderance of the
evidence that termination is in the best interests of the child. See Kent K. v.
Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249 ¶ 12 (2000). 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 as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

¶11 The court may terminate the rights of a parent who “has
willfully abused a child.” A.R.S. § 8-533(B)(2). Abuse is defined as “the
infliction or allowing of physical injury, impairment of bodily function or
disfigurement.” A.R.S. § 8-201(2). In terminating a parent’s rights under §
8-533(B)(2) to a child who himself has not been neglected or abused, “the
juvenile court must find during the parental unfitness inquiry, by clear and
convincing evidence, that there is a risk of harm to” that child. Sandra R. v.
Dep’t of Child Safety, 248 Ariz. 224, 228 ¶ 17 (2020). A risk of harm can exist
where the prior abuse is recent. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated

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 JOSHUA W. v. DCS, E.W.
Decision of the Court

Ariz. 76, 77, 80 n.3 ¶¶ 2-5, 17 (App. 2005). It also may exist where the risk is
manifest given the nature of the abused child’s injuries and the age and
vulnerability of the child at issue. Sandra R., 248 Ariz. at 231 ¶ 31.

¶12 The superior court found that DCS proved, by clear and
convincing evidence, that severance of Father’s rights was warranted
because of his neglect and abuse of J.W., which put E.W. “at substantial risk
of harm.” The court found that “the evidence strongly point[s] to Father as
the perpetrator of the abuse on [J.W.],” and the court found credible
Mother’s timeline of events preceding J.W.’s death, meaning she “handed
a healthy [J.W.] over to Father’s care, ran an errand and returned to find
[J.W.] with life-threatening injuries.”

¶13 On appeal, Father argues that DCS “offered no explanation as
to how or why [J.W.] was injured.” The law, however, does not require DCS
to prove precisely how or why J.W. was injured while in Father’s care. The
trial evidence amply supports the finding that Father abused the child. The
trial evidence also supports the finding that after J.W. became unconscious,
Father “failed immediately to summon emergency assistance for a helpless
baby in such obvious medical distress by the time Mother returned home
or thereafter,” from which the court reasonably inferred that Father
“hop[ed] to conceal his physical abuse of [J.W.]”

¶14 Father next contends insufficient evidence supports the
finding that E.W. would be at a substantial risk of harm if he were returned
to Father’s care.2 DCS took custody of E.W. right after learning about the
injuries to his brother, and evidence regarding E.W. was limited to the
unexplained spiral femur fracture treated in early 2018. Father argues that
he has a bond with E.W., who is older than J.W. when he died, and “does
not have the same weak neck and skull of a newborn.” Contrary to Father’s
arguments, the seriousness of his abuse of J.W. is obvious, and the risk of
additional harm to E.W. is not diminished by Father’s contention otherwise.
Considering these facts, the superior court properly could find the risk of
harm to E.W. was “manifest in light of the nature of [J.W.’s] injuries and
[E.W.’s] vulnerability.” Sandra R., 248 Ariz. at 231 ¶ 31.

2 The termination order erroneously states “Mother,” instead of “Father,”
in this finding. See In re Marbella P., 223 Ariz. 159, 160 n.3 (App. 2009)
(construing omission of word “not” from transcript as a typographical error
because the court’s intention was clear).

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 JOSHUA W. v. DCS, E.W.
Decision of the Court

¶15 Father argues the court erred in taking judicial notice “that
there is a psychology of abuse, meaning that a parent who abuses one child
is likely to abuse a second. Matter of Appeal In Cochise County Juvenile Action
No. 5666-J, 133 Ariz. 157, 162 (1982).” Father also argues the court erred by
adopting that theory, which DCS presented in its written closing argument,
“as one of its factual grounds for its severance finding.” Contrary to Father’s
assertion, although the court noted that DCS had offered the “psychology
of abuse” as support for severance, it did not mention the “psychology of
abuse” within (or as the basis of) any of its findings. The numerous factual
findings make clear that the court analyzed the specific facts of the case and
did not improperly rely on an unsupported theory. See Callender v.
Transpacific Hotel Corp., 179 Ariz. 557, 562 ¶ 12 (App. 1993) (“To justify
reversal, trial errors must be prejudicial to the substantial rights of the
appealing party” and “must affirmatively appear from the record.”).

CONCLUSION

¶16 The order terminating Father’s parental rights to E.W. is
affirmed.

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

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