TINA T., Appellant, v. DEPARTMENT OF CHILD SAFETY, B.H., Appellees.
No. 1 CA-JV 14-0092
Court of Appeals of Arizona, Division 1
Dec. 11, 2014
339 P.3d 1040 | 236 Ariz. 295
Arizona Attorney General‘s Office, By Michael F. Valenzuela, Phoenix, Counsel for Appellee Department of Child Safety.
Judge MICHAEL J. BROWN delivered the Opinion of the Court, in which Presiding Judge PETER B. SWANN and Judge KENTON D. JONES joined.
OPINION
BROWN, Judge.
¶1 Tina T. (“Mother“) appeals the juvenile court‘s order terminating her parental rights
BACKGROUND
¶2 Mother and Nicholas H. (“Father“)2 are the biological parents of B.H., who was born in 2012. Mother‘s two older children, A.N. and C.B., were born in 2002 and 2007, respectively. In January 2003, police and emergency personnel responded to Mother‘s apartment after a 9-1-1 call reported that A.N., then three months old, was not breathing. A.N. later died from injuries consistent with “shaken baby syndrome.”
¶3 When police questioned Mother about the incident, she reported that A.N. was with her then-boyfriend, Pedro, and Mother was not present because she was physically disciplining C.B. in a different room. Mother also reported that both she and Pedro often disciplined C.B. by spanking him and Pedro admitted to shaking A.N. In a later interview, Mother admitted she had seen Pedro shake A.N. previously.
¶4 Mother was charged with one count of child abuse, a class 2 felony, relating to A.N.‘s death. In March 2005, Mother pled guilty to attempted child abuse, a class 3 felony. She was sentenced to one year in prison and placed on lifetime probation, the terms of which prohibited any contact with minor children. When Mother was released from prison in 2006, her probation was modified to permit supervised contact with C.B.
¶6 When Mother gave birth to B.H. in August 2012, DCS removed the infant from Mother‘s care but did not immediately seek court intervention because B.H. had been placed in Father‘s care. Mother and Father remained in contact, however, and because Father did not follow the established safety plan, DCS filed a dependency petition against both parents, and B.H. was taken into care and placed with family members.
¶7 After the court found B.H. dependent as to Mother, DCS filed its petition to terminate Mother‘s parental rights to B.H., alleging that Mother had “neglected and/or willfully abused a child or failed to protect a child from neglect and/or willful abuse under
¶8 Mother appeared at the scheduled adjudication hearing, but at the outset informed the court through counsel she no longer wished to contest termination. After discussing with Mother the rights she would be waiving, the court determined on the record that she knowingly, intelligently, and voluntarily waived her right to a contested termination hearing. Mother then left the courtroom, but her counsel remained and participated in the hearing. The court also excused Mother‘s probation officer, who was prepared to testify as a witness for DCS.
¶9 DCS presented the testimony of DCS unit supervisor Shannon Robinson, who testified that B.H. could not be reunited with Mother because the terms of her probation prevented contact with any minor child.3 Robinson explained that Mother‘s history of child abuse put B.H. at a risk of abuse that could only be prevented by terminating Mother‘s parental rights because, despite receiving services relating to her first conviction for attempted child abuse, she subsequently abused another child, resulting in another felony conviction. Based on these facts, Robinson opined that Mother posed a threat of harm to “[a]ny child in her care.” According to Robinson, B.H. was adoptable, thriving in her current placement with her paternal aunt and uncle, and her best interests would be served by terminating Mother‘s parental rights.
¶10 After admitting various exhibits offered by DCS and considering arguments from counsel, the court granted the request for termination, explaining on the record that DCS had shown by clear and convincing evidence that Mother willfully abused a child. The court found that Mother (1) knew about the serious physical abuse to A.N. and failed to protect him; (2) physically abused C.B. while Pedro was abusing A.N.; and (3) physically abused C.B. in 2007. Based on these circumstances, the court determined a nexus existed between prior abuse and the risk to B.H. because Mother failed to correct her behavior after the first child abuse incident and she has been on lifetime probation since her conviction in 2005. The court also found that DCS proved by a preponderance of the evidence that termination is in B.H.‘s best interests. The court incorporated these findings in a signed minute entry and Mother timely appealed.
DISCUSSION
¶11 Before a parent‘s rights may be terminated, the juvenile court holds an initial hearing, the purpose of which is to ensure service is complete and to determine whether the parent contests termination.
¶12 A parent, however, “may waive the right to trial on the allegations contained in the motion or petition for termination of parental rights by admitting or not contesting the allegations.”
- Determine whether the party understands the rights being waived;
- Determine whether the admission or plea of no contest is knowingly, intelligently and voluntarily made;
- Determine whether a factual basis exists to support the termination of parental rights; and
- Proceed with entering the findings and orders as set forth in subsection (F)[.]
Id. (emphasis added). If the party seeking termination has met its burden of proof,
¶13 Because Mother initially desired to contest the termination, the juvenile court scheduled a contested termination adjudication hearing. After Mother‘s counsel informed the court that Mother no longer wished to contest termination, the court informed Mother of the rights she would be waiving and then determined she knowingly, voluntarily, and intelligently waived such rights. Mother does not argue that she did not understand the rights she waived nor does she contest the validity of her waiver. Nor does Mother contend the court failed to make findings required under
¶14 As a threshold matter, Mother‘s arguments fail to recognize she waived her right to a contested termination hearing when she chose not to challenge the allegations of DCS‘s petition and thereby entered her plea of no contest. In doing so, she implicitly acknowledged that the procedures for evaluating DCS‘s uncontested petition would be substantially different than the procedures the court and the parties would have followed had she contested termination. Thus, Mother cannot challenge the sufficiency of the evidence as if the juvenile court had conducted a contested termination adjudication hearing. Rather, her right to appellate review is confined to raising issues contemplated by the waiver procedure outlined in
¶15 Addressing Mother‘s challenge as an appeal from a contested termination hearing would also be unfair to the other parties to the proceeding, as well as the juvenile court, all of whom relied on Mother‘s knowing, voluntary, and intelligent decision to not contest the allegations of the petition. We therefore construe Mother‘s arguments on appeal as presenting a narrow question of whether a factual basis exists to support termination.
¶16 Similarly, the purpose of requiring the juvenile court to determine whether a factual basis exists to support termination under
¶17 DCS sought to terminate Mother‘s parental rights under
¶18 The juvenile court found that DCS met its burden of proving that Mother had willfully abused her children and there was a constitutional nexus between the prior abuse and B.H. such that abuse would likely occur again. DCS supervisor Robinson opined that because Mother had abused (or was aware of the abuse of) her two older children, she posed a threat of harm to any children in her care. This testimony, together with the exhibits describing Mother‘s involvement in the prior incidents of abuse and the conditions of her probation, supports a finding that DCS satisfied its obligation under
¶19 Given Robinson‘s testimony that B.H. was thriving in her current placement, the record also supports the juvenile court‘s finding that termination was in the child‘s best interests. See Audra T. v. Ariz. Dep‘t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating that juvenile court, in determining best interests, may properly consider “whether an existing placement is meeting the needs of the child“); James S. v. Ariz. Dep‘t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998) (stating that the juvenile court must find that the “child will benefit from termination of the relationship or that the child would be harmed by continuation of the parental relationship“). Therefore, the record plainly indicates that DCS established a factual basis showing termination of Mother‘s parental rights was in B.H.‘s best interests.
CONCLUSION
¶20 We affirm the juvenile court‘s order terminating Mother‘s parental rights to her daughter, B.H.