Fiona T. v. Dcs, S.K.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FIONA T., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.K., Appellees.

No. 1 CA-JV 21-0110
FILED 11-9-2021

Appeal from the Superior Court in Maricopa County
No. JD37007
The Honorable Lori Bustamante, Judge

AFFIRMED

COUNSEL

Gillespie, Shields, Goldfarb & Taylor, Phoenix
By Mark A. Shields, DeeAn Gillespie Strub
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
 FIONA T. v. DCS, S.K.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge David B. Gass and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Fiona T. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her child, S.K. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 S.K. was born in 2005. Approximately one year after her birth,
Mother’s relative filed a private dependency petition alleging S.K. was
dependent due to Mother’s substance abuse, physical abuse, and neglect.
That dependency was later dismissed.

¶3 In 2007, Mother married Dale T. (“Stepfather”) and they had
a child together, M.T. Between 2018 and 2019, the Arizona Department of
Child Safety (“DCS”) received multiple reports that Mother was abusing
alcohol, engaging in acts of domestic violence against S.K., and refusing to
allow the children to bathe because she was “worried about electricity
running through the water.”

¶4 On more than one occasion, Mother caused bruising on S.K.
In January 2019, S.K. sustained injuries on the inside of her left arm, which
included “two linear bruises that were black in color . . . approximately 1.5
[inches] in length” and a “scratch just above the bruises . . . approximately
1 [inch] in length [which] broke through the skin.”

¶5 DCS filed a dependency petition alleging S.K. and M.T. were
dependent because of Mother’s substance abuse, domestic violence,
neglect, and mental health issues.1 The parties agreed to an in-home
dependency, with time split between Mother and Stepfather who were then
living apart. The DCS safety plan required Mother’s parents to supervise
the children while in Mother’s care. The children were later removed from

1 The petition also alleged M.T. was dependent as to Stepfather. However,
both Stepfather and M.T. were later dismissed from the dependency and
they are not parties to this appeal.

2
 FIONA T. v. DCS, S.K.
Decision of the Court

Mother’s care after DCS learned Mother’s parents allowed Mother
unsupervised access to the children.

¶6 The juvenile court adjudicated S.K. dependent as to Mother
and placed S.K. with Stepfather. DCS later moved to terminate Mother’s
parental rights, alleging neglect, physical and emotional abuse, and fifteen
months in an out-of-home placement.

¶7 Mother and Stepfather divorced before the termination trial.
In the decree of dissolution, the family court awarded the parties joint legal
decision-making authority over M.T. and granted Mother unsupervised
parenting time. The divorce proceeding did not involve S.K.

¶8 At the termination trial, Mother moved to admit the decree of
dissolution, as well as a prior unsigned minute entry in which the family
court determined that, while Mother’s substance abuse “remains a
concern,” it was “not sufficient to restrict Mother’s parenting time” with
M.T. Mother argued both rulings were relevant to the issue of her fitness to
parent S.K., and contended the juvenile court was bound by the family
court’s findings regarding her alcohol use. The juvenile court refused to
admit either order into evidence or to consider them in the termination
action.

¶9 At the termination trial, Mother invoked the rule of exclusion
of witnesses, requesting the court exclude Stepfather from the proceeding
other than when he was testifying. The court found Stepfather was a party
to the proceeding, refused to exclude Stepfather, and allowed him to testify
after listening to the testimony of other witnesses.

¶10 Following the trial, the juvenile court terminated Mother’s
parental rights on the grounds of abuse, neglect, and fifteen months in
out-of-home placement, and found termination was in S.K.’s best interests.

¶11 Mother timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

¶12 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate a parent’s right in the care, custody, and management of their
children “if it finds clear and convincing evidence of one of the statutory

3
 FIONA T. v. DCS, S.K.
Decision of the Court

grounds for severance, and also finds by a preponderance of the evidence
that severance is in the best interests of the children.” Id. at 98, ¶ 7.

¶13 We review a termination order for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)).

¶14 Parental rights may be terminated when “the parent has
neglected or willfully abused a child.” A.R.S. § 8-533(B)(2). “Abuse”
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.” Id. However, “abuse” is not limited to serious
physical or emotional injury, but can also include, for example, inflicting or
allowing another to inflict physical injury. E.R. v. Dep’t of Child Safety, 237
Ariz. 56, 59, ¶¶ 12-15 (App. 2015) (citing A.R.S. § 8-533(B)(2)) (the word
“includes” enlarges the meaning, and evidence of serious physical or
emotional injury is not required under the statute); see also A.R.S. § 8-201(2)
(“‘Abuse’ means the infliction or allowing of physical injury . . . or the
infliction of or allowing another person to cause serious emotional damage
as evidenced by severe anxiety, depression, withdrawal or untoward
aggressive behavior and which emotional damage is diagnosed by a
medical doctor or psychologist . . . .”).

¶15 Mother challenges the court’s finding of abuse, focusing on
only one factual finding—that Mother abused S.K. in January 2019—and
attempts to minimize the abuse by characterizing S.K.’s injuries as
insignificant. Mother argues that because the incident “resulted in no
broken bones or comparable injury,” it was not serious enough to warrant
termination.

¶16 Contrary to Mother’s assertion, abuse need not rise to the
level of “serious physical injury.” See E.R., 237 Ariz. at 59, ¶ 15. Moreover,
as the juvenile court noted, the January 2019 incident was not an isolated
incident of abuse. Rather, the court found, and the record shows, Mother
had a lengthy history of domestic violence, S.K. reported that Mother’s

4
 FIONA T. v. DCS, S.K.
Decision of the Court

abuse was ongoing and included both physical and emotional abuse, and
S.K. was diagnosed with Post-Traumatic Stress Disorder (“PTSD”).
Reasonable evidence supports the court’s decision to terminate Mother’s
parental rights under A.R.S. § 8-533(B)(2).

¶17 Mother contends the court erred in categorizing Stepfather as
a “party” to the action and failing to exclude Stepfather from the
proceedings until the time of his testimony under Rule 615, Arizona Rules
of Evidence. DCS argues the court properly allowed Stepfather to remain
under Rules 37(B) and 41(C), Arizona Rules of Procedure for the Juvenile
Court, because, as a foster placement, Stepfather was a “participant” to the
proceedings and the court had discretion to allow him to stay on the phone
(he participated telephonically) even when he was not testifying.

¶18 We need not resolve the issue. Even if the court erred under
Rule 615 by failing to exclude Stepfather from the proceedings except for
when he testified, Mother was not prejudiced. Stepfather’s testimony
regarding Mother’s abuse of S.K. was cumulative to other evidence the
court properly admitted at trial. See In re Marriage of Molloy, 181 Ariz. 146,
150 (App. 1994) (“Not all errors in the superior court warrant reversal,
however. We will reverse only if the complaining party suffers prejudice as
a result of the error. Prejudice must appear affirmatively from the record.”);
cf. Fuentes v. Fuentes, 209 Ariz. 51, 57, ¶ 28 (App. 2004) (“[T]he erroneous
admission of evidence that is substantially cumulative may constitute
harmless error.”). Because there was reasonable evidence of Mother’s abuse
in the record aside from Stepfather’s testimony, Mother has not shown
prejudice.

¶19 Mother further argues the court erred by failing to admit the
decree of dissolution granting her joint legal decision-making and
unsupervised parenting time with M.T., as well as the prior, unsigned
minute entry in which the family court determined Mother’s substance
abuse was “not sufficient to restrict Mother’s parenting time” with M.T. On
appeal, Mother argues both orders are not only relevant, but are also
entitled to preclusive effect as to the issue of Mother’s fitness to parent S.K.

¶20 We review the juvenile court’s determination as to the
admissibility of evidence for an abuse of discretion. State v. Fillmore, 187
Ariz. 174, 179 (App. 1996). “In determining the relevancy and admissibility
of evidence, the trial judge is invested with considerable discretion,” which
“will not be disturbed on appeal unless clearly abused.” State v. Hensley, 142
Ariz. 598, 602 (1984). Mother’s fitness to parent M.T. does not necessarily
bear on her fitness to parent S.K., nor is it automatically determinative of

5
 FIONA T. v. DCS, S.K.
Decision of the Court

her fitness to parent S.K. See Ariz. R. Evid. 401. Lastly, we decline Mother’s
invitation to consider whether the family court orders were preclusive as to
the issue of Mother’s fitness to parent S.K. because Mother failed to
adequately preserve that issue. At trial, Mother argued only that the
juvenile court was bound by the family court’s unsigned minute entry
finding her alcohol use did not pose a detriment to M.T.

¶21 Because sufficient evidence exists to support the juvenile
court’s termination order on the ground of abuse, we need not address
Mother’s arguments relating to termination of her rights based upon
neglect, § 8-533(B)(2), or length of time in an out-of-home placement,
§ 8-533(B)(8)(c). See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 3 (App. 2002). Moreover, because Mother does not challenge the court’s
finding that termination of the parent-child relationship was in S.K.’s best
interests, she has abandoned that argument. See Crystal E. v. Dep’t of Child
Safety, 241 Ariz. 576, 578, ¶ 6 (App. 2017) (“[W]e adhere to the policy that it
is generally not our role to sua sponte address issues not raised by the
appellant.”); Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14
n.6 (App. 2011) (recognizing the failure to develop an argument on appeal
usually results in abandonment and waiver of the issue).

CONCLUSION

¶22 For the foregoing reasons, we affirm the juvenile court’s
termination order.

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

6