In Re Term of Parental Rights as to X.B. and D.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 X.B. and D.B.

No. 1 CA-JV 23-0226
FILED 5-7-2024

Appeal from the Superior Court in Maricopa County
No. JD42860, JS21376
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Jennifer R. Blum
Counsel for Appellee DCS

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda Adams
Counsel for Appellee Children
 IN RE TERM OF PARENTAL RIGHTS AS TO X.B. and D.B.
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Anni Hill Foster and Judge Brian Y. Furuya joined.

H O W E, Judge:

¶1 Vanessa M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her son, X.B., born in February 2019, and
her daughter, D.B., born in November 2022, on the grounds of abuse and
neglect. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Mother is the biological parent of X.B. and D.B. Juan P. is X.B.’s father and
Adrian F. is D.B.’s father.1 In April 2023, Mother and Adrian F., with whom
Mother lived, took X.B. to the hospital because he complained about pain
in his stomach. A medical examination of X.B. revealed a bowel perforation
and abdominal bruising, requiring immediate surgery.

¶3 Based on this examination, the hospital contacted the
Department of Child Safety stating its belief that Mother and Adrian F.
were physically abusing X.B. The Department and the Phoenix police
launched a joint investigation. During the investigation, Mother stated that
X.B. was developmentally delayed, nonverbal, and autistic. She also stated
that X.B. had been suffering flu-like symptoms for about five days before
she brought him to the hospital. Finally, she stated alternative causes for
X.B.’s bowel perforation, such as his falling while playing in a football game
and falling off a scooter a few weeks ago. The hospital’s medical
professionals determined that such falls could not have caused X.B.’s injury;
instead, his injury was caused by “very high-impact trauma like a motor
vehicle accident.” The investigation also revealed that Mother had brought

1 Juan P. and Adrian F. are not parties to this appeal; their parental
rights were terminated.

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Decision of the Court

X.B. to the hospital the night before but had left before X.B. received
treatment.

¶4 About a week later, Adrian F. admitted during questioning
that he physically abused X.B. “a lot” in the past. He explained that he did
so to relieve the anger and frustration resulting from his fights with Mother.
He claimed that X.B.’s current injury was unintentional and that he had told
Mother about it. Adrian F. was arrested and charged with child abuse.

¶5 D.B. also underwent a medical examination, which revealed
a bite mark on her shoulder. Mother could not explain how D.B. sustained
the bite mark. The Department then petitioned to have X.B. and D.B.
declared dependent as to Mother because of Mother’s abuse and neglect,
and the juvenile court declared them dependent. Later, the Department also
petitioned to terminate Mother’s parental rights as to X.B. and D.B., alleging
abuse and neglect under A.R.S. § 8-533(B)(2). The Department offered
Mother family preservation services, parenting sessions, substance-abuse
testing, substance-abuse assessment and treatment, and visitation. She
engaged in the services provided.

¶6 At the termination hearing, the Department’s case supervisor
testified that the Department did not seek to reunify the children with
Mother because of the significant trauma and abuse that X.B. had suffered.
She also testified that completion of services does not necessarily mean that
the parent has made behavioral changes to negate the termination, and that
if Mother was communicating with Adrian F., she had made no behavioral
changes. Finally, she testified that termination of Mother’s parental rights
was in the children’s best interests because it would provide them with a
permanent placement in a stable, loving, and non-abusive home.

¶7 Mother testified that she has had no contact with Adrian F.
since he was arrested. Later during the hearing, the Department presented
records that Mother had exchanged over 600 texts with Adrian F. since he
was arrested. In these texts she expressed anger towards him for harming
the children but at the same time a desire to reunite with him.

¶8 The juvenile court found that the Department proved neglect
and abuse as grounds for termination of Mother’s parental rights. It found
that Mother “knew or reasonably should have known” that Adrian F. was
abusing X.B. The court made no findings about the Department’s
reasonable efforts to reunify the family because “[t]he statute did not
require [such] a finding.” It also found that termination was in the
children’s best interests because they would not be subject to abuse and

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Decision of the Court

neglect. It therefore terminated Mother’s parental rights. Mother timely
appealed, and this court has jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶9 Mother argues that the juvenile court erred in finding that the
Department was not required to provide her reunification services.
Although Mother did not raise this objection in the juvenile court, Shawanee
S. v. Ariz. Dep’t. of Econ. Sec., 234 Ariz. 174, 178–79 ¶¶ 16–18 (App. 2014), in
the exercise of our discretion, we nevertheless address her argument,
Clemens v. Clark, 101 Ariz. 413, 414 (1966).

¶10 Our supreme court has directed us to “affirm a termination
order unless the juvenile court abuses its discretion or the court’s findings
are not supported by reasonable evidence.” Brionna J. v. Dep’t of Child Safety,
255 Ariz. 471, 478 ¶ 29 (2023). Our review is conducted using a two-part
analysis. Id. at ¶ 30. First, we “review the factual findings made by the
juvenile court, and its factual findings will be accepted if reasonable
evidence and inferences support them.” Id. (internal citations omitted).
Second, we assess “the juvenile court’s legal conclusions regarding the
statutory ground for termination—which must be established by ‘clear and
convincing’ evidence at the juvenile court level”—and will affirm unless
these conclusions are clearly erroneous. Id. at 478–79 ¶ 31. “In making this
determination, the question of whether the statutory factor is supported by
the mandated quantum of evidence will not be disturbed unless [we]
determine[] as a matter of law that no one could reasonably find the
evidence to” constitute the applicable quantum. Id. at 479 ¶ 31.

¶11 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one statutory ground
under A.R.S. § 8-533, and by a preponderance of the evidence that
termination would be in the child’s best interests. A.R.S. § 8-533(B); Jennifer
S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016). One such
ground is neglect, A.R.S. § 8-533(B)(2), which is “[t]he inability or
unwillingness of a parent . . . of a child to provide that child with
supervision, food, clothing, shelter or medical care if that inability or
unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. § 8-201(25)(a).

¶12 The juvenile court did not err in finding that the Department
was not required to provide Mother with reunification services. Section
8-533(B)(2) contains no express language requiring the Department to make

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Decision of the Court

reasonable efforts to provide reunification services before termination
under the neglect or abuse ground. Nor has any Arizona court required
such services when termination is sought under such ground. See Toni W.
v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 61, 64, 66 ¶¶ 9, 15 (App. 1999)
(recognizing that the legislature amended § 8-533(B) to remove the
requirement that services be provided before termination on the ground of
abandonment under A.R.S. § 8-533(B)(1) and finding no constitutional duty
to provide services before seeking termination on that ground). Mother
cites no authority for the proposition that reunification services must be
provided when the ground for termination is neglect or abuse. The Arizona
legislature did not list the abuse or neglect ground as the ground under
which the Department is required to provide reunification services, as it did
with other grounds. See A.R.S. § 8-533(D). We cannot inject such a
requirement into § 8-533(B)(2). State v. Gonzalez, 216 Ariz. 11, 14 ¶ 10 (App.
2007) (“[I]t is not within either the trial court’s or this court’s authority to
amend a statute.” (citation omitted)).

¶13 Mother concedes that nothing in § 8-533(B)(2) requires the
Department to provide reunification services. But relying on Jessie D. v.
Dep’t of Child Safety, she argues that due process required the Department
to provide her with reunification services. 251 Ariz. 574 (2021). In Jessie D.,
our supreme court held that when the Department seeks to terminate
parental rights under the length-of-sentence ground, it has a constitutional
duty to make reasonable efforts to “initiate measures designed to address
an incarcerated parent’s desire to maintain a parent-child relationship.” Id.
at 582 ¶ 21. Because the ground for termination here is neglect or abuse and
Mother was not incarcerated, Jessie D. does not apply.

¶14 Mother further argues that the court also erred because it did
not make written findings about whether the Department made reasonable
efforts to provide reunification services to her. But the court was not
required to make such findings because, as explained in ¶¶ 12–13, the
statute does not require reunification efforts. Mother has thus shown no
error.

CONCLUSION

¶15 We affirm.

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