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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             JESSICA L., Appellant,

                                         v.

             DEPARTMENT OF CHILD SAFETY, J.L., Appellees.

                              No. 1 CA-JV 20-0176
                                FILED 10-6-2020


            Appeal from the Superior Court in Yavapai County
                         No. P1300JD201900070
                 The Honorable Anna C. Young, Judge

                                   AFFIRMED


                                    COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
                          JESSICA L. v. DCS, J.L.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.


C R U Z, Judge:

¶1           Jessica L. (“Mother”) appeals the superior court’s order
terminating her parental rights. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Mother and Jacobi L. (“Father”) are the natural parents of
Josiah, born in Virginia in 2015, and James, born in Arizona in September
2019.1 Shortly after James was born, the Department of Child Safety (the
“Department”) received two calls reporting that James’ brother Josiah had
been abused in Virginia and raising concerns about the potential for abuse
of James. At birth, James was diagnosed with Pierre Robin sequence, which
resulted in a shortened lower jaw that required surgery a week after birth,
and a cleft palate that required corrective surgery at approximately nine or
ten months of age. James remained in the hospital “due to his severe
medical needs.” Based on reports of the prior abuse of Josiah—including a
brain injury and multiple fractures due to non-accidental trauma—and on
a review of documents from Virginia’s Child Protective Services, the
Department initiated dependency proceedings and petitioned to terminate
Mother’s and Father’s parental rights to James just two weeks after his birth.
The petition to terminate their parental relationships alleged Mother and
Father had willfully abused or failed to protect Josiah from willful abuse
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-201(2) and 8-
533(B)(2) and that James’ congenital disorders made him particularly
susceptible to abuse and presented a substantial risk of harm.

¶3            When Mother and Father met online, Father lived in Virginia
near his family, and Mother lived in Arizona near hers. Father traveled to
Arizona, where they entered a covenant marriage in 2013; they moved to
Virginia when Father struggled to find work in Arizona. After Josiah was


1      The children’s names have been changed to a pseudonym to protect
their privacy.



                                      2
                           JESSICA L. v. DCS, J.L.
                            Decision of the Court

born, Mother became concerned about Father’s ability to care for the infant.
She noted Father was “a little rough with him.” Father pulled the child’s
legs to straddle Father’s chest when holding him, held the child’s legs in an
uncomfortable position when changing a diaper, held the child down when
putting him into the car seat, and picked up the child by the neck with one
hand. Although Mother immediately interceded and attempted to coach or
correct Father’s handling of the child, Father often rejected her input.
Because Father frequently became frustrated with Josiah, Mother
undertook most of the child’s care. Despite Mother’s concerns, Father
continued to care for Josiah unsupervised on occasion.

¶4            Josiah’s pediatrician examined him frequently, once because
he seemed dehydrated and several times to monitor his weight loss and
slow weight gain. When Josiah was seven weeks old, Mother and Father
sought medical care because he had been unusually fussy and was holding
his right leg abnormally. The night before, Father had changed Josiah’s
diaper, and the child gave a “shrill shriek.” Doctors determined that Josiah
had “multiple fractures” in various stages, including acute fractures in both
femurs, several healing rib fractures, and healing fractures to the left tibia
and left forearm. An MRI indicated “areas compatible with chronic small
hemorrhages [in] both frontal lobes.” Doctors determined “[Josiah]
appears to be a victim of non-accidental trauma.” Neither parent could
account for the injuries except for one or both of the broken femurs; Mother
and Father each suggested Father may have caused that injury when
changing the child’s diaper or when he straddled the child’s legs across his
chest. A Virginia court ordered Josiah be placed with his paternal
grandparents and issued a protective order against Mother and Father,
permitting contact with Josiah “in the discretion” of his paternal
grandmother. Josiah has not sustained any additional fractures after being
placed with his grandparents. As of the termination proceeding, he
remains in Virginia in his paternal grandparents’ care.2

¶5           In 2019, while Mother was pregnant with James, Mother and
Father moved to Arizona to be nearer to Mother’s family. Mother still had
concerns about Father’s ability to safely care for an infant and hoped to have
support from her family in caring for James. Approximately two months
after James was born, and after termination proceedings were commenced,


2      Mother and Father faced criminal child abuse charges in Virginia,
but prosecutors there entered a nolle prosequi declaration, essentially tabling
the charges barring additional evidence.



                                      3
                           JESSICA L. v. DCS, J.L.
                            Decision of the Court

Father returned to Virginia and stopped cooperating with the Department
and his Guardian ad Litem.3

¶6             Based on the injuries suffered by Josiah and the Virginia
court’s termination of their parental rights, the Department amended its
petition for termination to allege both parents had abused or neglected or
failed to protect a child from abuse or neglect, all which presented James
with a substantial risk of harm. See A.R.S. § 8-533(B)(2). At the dependency
and severance trial, Mother testified that she had filed for divorce from
Father, citing abandonment. See A.R.S. § 25-903 (outlining limited grounds
to dissolve a covenant marriage). Two medical experts testified that Mother
suffers from Ehlers-Danlos Syndrome (“EDS”), which can be “associated
with bone fragility.” Mother sought evaluations of Josiah for EDS from
both experts in 2017. Both testified that Josiah might also have EDS, which
could explain his serious injuries; neither expert, however, actually
examined him and only reviewed medical records provided by Mother.

¶7            After a three-day hearing, the superior court found James
dependent as to Mother and terminated Mother’s and Father’s parental
rights. Mother timely appeals the termination of her rights, and we have
jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).

                               DISCUSSION

¶8             Mother appeals the superior court’s findings that she abused
or neglected a child or failed to protect a child from abuse or neglect; that
James would be at a substantial risk in her care; and that termination is in
the best interests of James. Termination may be appropriate if the superior
court finds, by clear and convincing evidence, at least one of the statutory
grounds for termination in A.R.S. § 8-533(B), and, by a preponderance of
the evidence, termination to be in the best interests of the child. Christy C.
v. Ariz. Dep’t of Econ. Sec., 

214 Ariz. 445

, 449, ¶ 12 (App. 2007). We view the
evidence “in the light most favorable to sustaining the juvenile court’s
findings and will affirm unless, as a matter of law, no reasonable evidence
supports those findings.” Ariz. Dep’t of Econ. Sec. v. Rocky J., 

234 Ariz. 437

,
440, ¶ 12 (App. 2014).



3      The superior court found James dependent as to Father in December
2019, after Father failed to appear to a pretrial conference without cause.
Father did not attend the trial but was represented by an attorney and
Guardian ad Litem. Following the trial, the court terminated his parental
rights. Father is not a party to this appeal.


                                      4
                             JESSICA L. v. DCS, J.L.
                              Decision of the Court

I.     Termination Pursuant to A.R.S. § 8-533(B)(2)

¶9            Under A.R.S. § 8-533(B)(2), the superior court may find a
parent unfit if the parent “neglected or wilfully abused a child,” including
circumstances in which the parent “knew or reasonably should have known
that a person was abusing or neglecting a child.” The abused or neglected
child may be a child other than the subject of the termination proceedings.
However, in determining that a parent is unfit to parent a child based on
the abuse or neglect of another child, “[i]nherent . . . is a demonstrable
connection between the ground for termination and the harm or risk of
harm to a child.” Sandra R. v. Dep’t of Child Safety, 

248 Ariz. 224

, 227, 229,
¶¶ 13, 24 (2020). The statute requires “the juvenile court to explicitly find[]
that a parent’s neglect or abuse of any child demonstrates that the parent is
similarly unfit to parent the child at issue.”

Id. at 230, ¶ 25.

¶10               Mother first contends the superior court erred in finding
Mother abused, neglected, or failed to protect Josiah from abuse or neglect.
She cites the testimony of the medical experts who surmised Josiah’s
injuries could be contributed to EDS. The court, however, found that
Mother’s argument that Josiah had EDS was not “credible or supported by
the evidence.” As the court noted, a geneticist in Virginia evaluated Josiah
but “did not detect a pathogenic variant in [the] gene[s] associated with
osteogenesis imperfecta and decreased bone density.” The court also noted
Josiah had not suffered from any additional fractures since removal from
the parents’ care. Mother essentially asks us to reweigh the evidence
regarding Josiah’s injuries; this we will not do. “The resolution of such
conflicts in the evidence is uniquely the province of the juvenile court as the
trier of fact . . . .” Jesus M. v. Ariz. Dep’t of Econ. Sec., 

203 Ariz. 278

, 282, ¶ 12
(App. 2002). Furthermore, the record includes significant evidence that
Father’s rough handling caused at least one of Josiah’s fractures, and
Mother admitted “the night before [Josiah] was taken to the hospital where
his injuries were diagnosed she heard the child cry out while Father was
taking care of the child,” and that she had “seen Father hold the child by
the neck but continued to leave [Josiah] with Father unsupervised.”
Despite witnessing Father “mishandling” Josiah on several occasions and
knowing Father displayed “ignorance to babies and how they should be
cared for,” Mother continued to allow Father to provide some care for the
child. The record supports the court’s findings that Mother knew or
reasonably should have known that Father was abusing or neglecting
Josiah. We find no error.

¶11         Next, Mother contests the superior court’s findings that
Mother lacked protective capacity, and that James would be “at substantial


                                          5
                           JESSICA L. v. DCS, J.L.
                            Decision of the Court

risk of harm in Mother’s care.” The court cited concerns about Mother’s
relationship with Father, her “minimization of Father’s actions that resulted
in” Josiah’s injuries, and James’ young age and special needs. The court
noted that James “is vulnerable, if not more vulnerable, as [Josiah] due to
[James’] age and medical issues.” The record supports these findings.
Although Mother filed for divorce, she did so after the trial began, and the
record shows she had previously separated from Father briefly in Virginia
before reuniting with him. Mother testified she returned to Father after
researching EDS and determining “what I saw happen” between Father
and Josiah “didn’t really explain any of his injuries or very few of his
injuries.” In a report prepared for the superior court, the Department noted
that although Mother participated consistently in coaching and counseling
services, “she is engaging while holding onto a perception of her situation
that is likely inaccurate, and therefore is not progressing toward sustainable
behavioral changes necessary to parent [James] safely.” James is a
particularly vulnerable child, as he is young and was born with special
medical needs. The superior court did not abuse its discretion in finding
Mother lacked appropriate protective capacity, placing James at substantial
risk of harm. See Sandra 

R., 248 Ariz. at 231

, ¶ 31 (“[T]he court sufficiently
imputed the risk of harm to the other children based on [the abused child’s]
serious injuries and Mother and Father’s lack of credibility in their
assurances that they would insulate their other children from abuse.”).

II.    Best Interests

¶12            Mother argues the superior court erred in finding termination
to be in the best interests of James. “[T]he best interests inquiry focuses
primarily upon the interests of the child, as distinct from those of the
parent” deemed unfit. Kent K. v. Bobby M., 

210 Ariz. 279

, 287, ¶ 37 (2005).
The superior court “must protect a child’s interest in stability and security.”

Id. at 286, ¶ 34

(citation omitted). Termination of the parent-child
relationship is in the best interests of the child if the child will benefit from
termination or will be harmed if the relationship continues. Alma S. v. Dep’t
of Child Safety, 

245 Ariz. 146

, 150, ¶ 13 (2018).

¶13            The superior court determined that James would be at a
substantial risk of harm if he were in Mother’s care. See Bennigno R. v. Ariz.
Dep’t of Econ. Sec., 

233 Ariz. 345

, 350, ¶ 23 (App. 2013) (“The juvenile court
. . . may take into account that ‘[i]n most cases, the presence of a statutory
ground will have a negative effect on the children[.]’” (quoting In re
Maricopa Cnty. Juv. Action No. JS-6831, 

155 Ariz. 556

, 559 (App. 1988)). The
superior court also found that James was in an adoptive placement with his
maternal grandfather and wife, and the placement was meeting his needs.


                                       6
                           JESSICA L. v. DCS, J.L.
                            Decision of the Court

See Demetrius L. v. Joshlynn F., 

239 Ariz. 1

, 4-5, ¶ 16 (2016) (“It is well
established in state-initiated cases that the child’s prospective adoption . . .
can support a best-interests finding.”). Again, we decline Mother’s
invitation to reweigh the evidence. Viewed in a light most favorable to the
superior court’s findings, this record contains sufficient evidence to support
the finding that termination is in the best interests of James.

                                CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights.




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




                                          7