Petition for Writ of Certiorari — Sandra R., et al., Petitioners v. Arizona Department of Child Safety

Supreme Court briefJan 2, 2020

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No. 19In the

Supreme Court of the United States

Sandra Rey and Sergio Madrid,

Petitioners,

Arizona Department of Child Safety,

Respondent.

On Petition for a Writ of Certiorari to the

Arizona Court of A ppeals, Division One

PETITION FOR A WRIT OF CERTIORARI

Kristina B. Reeves

Counsel of Record

Mark Shields

DeeA n Gillespie

GillespieShields

7319 North 16th Street, Suite 100

Phoenix AZ 85020

(602) 870-9700

kreeves@gillaw.com

Counsel for Petitioners

293268

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Whether, in order to terminate a parent’s parental

rights to their child, the Due Process Clause of the United

States constitution requires that a State must allege and

prove, by clear and convincing evidence, that a parent is

unfit?

PARTIES TO THE PROCEEDING

Petitioners are Sandra Rey and Sergio Madrid.

Respondent is the Arizona Department of Child Safety.

No party is a corporation.

iii

STATEMENT OF RELATED CASES

• In the Matter of: M.R., F1000131, DOB: 8/13/2008;

F.M., Fl 117404, DOB: 3/21/2015; J.M., F1118162,

DOB: 3/11/2017. Case Nos: JD20586, JS19097,

Superior Court of Arizona, Maricopa County.

Judgment entered April 23, 2018.

• Sandra R, Sergio C. v. Department of Child

Safety, M.R., F.M., J.M., No. 1 CA-JV 18-0147,

Arizona Court of Appeals, Division One. Judgment

entered January 29, 2019.

• Sandra R, Sergio C. v. Department of Child

Safety, M.R., F.M., J.M., No. CV-19-0057 PR,

Arizona Supreme Court. Judgment pending.

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTIT U TIONAL A N D STAT U TORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. Factual background. . . . . . . . . . . . . . . . . . . . . . . . 2

B. Trial court proceedings. . . . . . . . . . . . . . . . . . . . . 4

C. Appellate court proceedings. . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE PETITION . . . . . 7

Table of Contents

Page

A. The states are irreconcilably split on

whether the federal constitution requires a

state to prove that a parent is unfit in order

to involuntarily terminate parental rights . . . . . 9

B. The states are irreconcilably split on what

the federal constitution requires a state

to prove in order for the state to prove

that a parent is unfit . . . . . . . . . . . . . . . . . . . . . . . 14

1. The states have reached different

conclusions as to what the state

must prove in order to satisfy the

element that a finding of parental

unfitness is necessary to protect the

parent’s child from harm . . . . . . . . . . . . . . . 19

2. To prove parental unfitness, the

State must prove that termination of

parental rights is the least restrictive

means of protecting the parent’s

child from harm . . . . . . . . . . . . . . . . . . . . . . 22

3. To prove parental unfitness, the

State must prove that the

g rou nds for t er m i nat ion i s not

over-inclusive . . . . . . . . . . . . . . . . . . . . . . . . 25

a. The State did not prove that

Mother had abused J.M.; the

State did not prove that Father

had abused J.M . . . . . . . . . . . . . . . . . . . 26

Table of Contents

Page

b. The State did not prove that

Mother was unfit; the State did not

prove that Father was unfit . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF ARIZONA COURT

OF APPEALS, DIVISION ONE, FILED

JANUARY 29, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE SUPERIOR

COURT OF ARIZONA, MARICOPA COUNTY,

FILED MARCH 23, 2018 . . . . . . . . . . . . . . . . . . . . . 20a

APPENDIX C — ORDER OF THE SUPREME

COURT OF THE STATE OF ARIZONA,

DATED AUGUST 28, 2019 . . . . . . . . . . . . . . . . . . . . 46a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

A.M. v. A.C.,

296 P.3d 1026 (Colo. 2013) . . . . . . . . . . . . . . . . . . . . . . 23

ACLU v. Mukasey,

534 F.3d 181 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 25

Adoption of Virgil,

102 N.E.3d 1009 (Mass. App. 2018) . . . . . . . . . . . . . . 11

Alma S. v. Dep’t of Child Safety,

425 P.3d 1089 (Ariz. 2018) . . . . . . . . . . . . . . . . . passim

Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B.C. v. Dep’t of Children & Families,

887 So. 2d 1046 (Fla. 2004) . . . . . . . . . . . . . . . . . . . . . 20

Bernal v. Fainter,

467 U.S. 216 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Brown v. Entm’t Merchants Ass’n,

564 U.S. 786 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cavazos v. Smith,

565 U.S. 1 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Chism v. Bright,

152 So. 3d 318 (Miss. 2014) . . . . . . . . . . . . . . . . . . . . . 16

Cited Authorities

Page

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . 17, 18-19

Copeland v. Todd,

715 S.E.2d 11 (Va. 2011) . . . . . . . . . . . . . . . . . . . . . . . 11

D.N. v. Dep’t of Children & Families,

277 So. 3d 127 (Fla. Dist. Ct. App. 2019) . . . . . . . . . 29

Del Prete v. Thompson,

10 F. Supp. 3d 907 (N.D. Ill. 2014) . . . . . . . . . . . . . . . 30

Fisher v. Univ. of Texas at Austin,

136 S. Ct. 2198 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Frisby v. Schultz,

487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re A.A.,

318 P.3d 1019 (Kan. Ct. App. 2014) . . . . . . . . . . . . . . 29

In re A.B.,

232 P.3d 1104 (Wa. 2010) . . . . . . . . . . . . . . . . . . . . . . . 11

In re Ann S.,

202 P.3d 1089 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . 11-12

In re D.T.,

818 N.E.2d 1214 (Ill. 2004) . . . . . . . . . . . . . . . . . . . . . 12

Cited Authorities

Page

In re Desmond F.,

795 N.W.2d 730 (Wis. App. 2019) . . . . . . . . . . . . . . . . 11

In re Guardianship of Jordan,

336 N.J. Super. 270 (App. 2001) . . . . . . . . . . . . . . . . . 20

In re J.J.B.,

894 P.2d 994 (N.M. 1995) . . . . . . . . . . . . . . . . . . . . . . 12

In re J.P.,

648 P.2d 1364 (Utah 1982) . . . . . . . . . . . . . . . . . . . . . 12

In re Kristina L.,

520 A.2d 574 (R.I. 1987) . . . . . . . . . . . . . . . . . . . . . . . 12

In re Rashawn H.,

937 A.2d 177 (Md. 2007) . . . . . . . . . . . . . . . . . . . . . . . 13

In re Scott S.,

775 A.2d 1144 (Me. 2001) . . . . . . . . . . . . . . . . . . . . . . 12

In re T.S.,

192 A.3d 1080 (Pa. 2018) . . . . . . . . . . . . . . . . . . . . . . . 11

In re Ta.L.,

149 A.3d 1060 (D.C. 2016) . . . . . . . . . . . . . . . . . . . . . . 11

In re Welfare of A. P. S.,

No. A10-2159, 2011 WL 2119418

(Minn. Ct. App. May 31, 2011) . . . . . . . . . . . . . . . . . . 29

Cited Authorities

Page

In re Welfare of Child of R.D.L.,

853 N.W.2d 127 (Minn. 2014) . . . . . . . . . . . . . . 15-16, 17

Kenneth C. v. Lacie H.,

839 N.W.2d 305 (Neb. 2013) . . . . . . . . . . . . . . . . . . . . 11

Kenyon v. Hammer,

142 Ariz. 69 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lassiter v. Department of Social Services,

452 U.S. 18 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Matter of Dependency of M.A.F.S.,

421 P.3d 482 (Wash. App. 2018) . . . . . . . . . . . . . . 17, 19

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

New Jersey Div. of Child Prot. & Permanency v.

C.J.R.,

175 A.3d 200 (N.J. App. 2017) . . . . . . . . . . . . . . . . . . 13

New Jersey Div. of Youth & Family Servs. v.

A.M.H.,

2009 WL 1181606

(N.J. Super. Ct. App. Div., May 5, 2009) . . . . . . . . . 31

New York v. Bailey,

999 N.Y.S.2d 713

(N.Y. Monroe Cnty. Ct., Dec. 16, 2014) . . . . . . . . . . . 30

xii

Cited Authorities

Page

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 33

Padgett v. Dep’t of Health & Rehab. Services,

577 So. 2d 565 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People in the Interest of A.M.D.,

648 P.2d 625 (Colo. 1982) . . . . . . . . . . . . . . . . . . . 12-13

Quilloin v. Walcott,

434 U.S. 246 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

Regents of Univ. of California v. Bakke,

438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

S.M. v. Florida Dept. of Children & Families,

202 So. 3d 769 (Fla. 2016) . . . . . . . . . . . . . . . . . . . . . . 23

Santosky v. Kramer,

455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . passim

Stanley v. Illinois,

405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 18

State Dept. of Human Res. v. A.K.,

851 So. 2d 1 (Ala. App. 2002) . . . . . . . . . . . . . . . . . . . 22

State ex rel. K.G.,

841 So. 2d 759 (La. 2003) . . . . . . . . . . . . . . . . . . . . . . 29

xiii

Cited Authorities

Page

State in Interest of A.M.,

280 P.3d 422 (Utah 2012) . . . . . . . . . . . . . . . . . . . . . . 26

State v. Edmunds,

746 N.W.2d 590 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . 30

TR v. Washakie County Dept. of Public

Assistance and Social Services,

736 P.2d 712 (Wy. 1987) . . . . . . . . . . . . . . . . . . . . . . . 17

Troxel v. Granville,

530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . 7, 14, 15, 32

Tyrone W. v. Superior Court,

151 Cal. App. 4th 839 (2007) . . . . . . . . . . . . . . . . 27, 28

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Williams-Yulee v. Florida Bar,

135 S. Ct. 1656 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Zablocki v. Redhail,

434 U.S. 374 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Statutes

Ala. Code 1975, § 12-15-70(a) . . . . . . . . . . . . . . . . . . . . . 22

Ariz. R.P. Juv. Ct. 48(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

xiv

Cited Authorities

Page

Arizona Revised Statute, § 8-533(B)(3) . . . . . . . . . . . . . . 2

N.J.S.A. 30:4C-15.1(a) . . . . . . . . . . . . . . . . . . . . . . . . 13, 20

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Black’s Law Dictionary 1279 (10th ed. 2014) . . . . . . . . . 19

RCW 13.34.190(1)(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Webster’s Third New International Dictionary 815

(3rd ed. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29

Treatises

De Officiis 57 (W. Miller transl. 1913) . . . . . . . . . . . . . . 33

Constitutional Provisions

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Petitioners Sandra Rey and Sergio Madrid (collectively

“Parents”) respectfully petition for a writ of certiorari to

review the judgment of the Arizona Court of Appeals,

Division One.

OPINIONS BELOW

The opinion of the Arizona Court of Appeals, Division

One, (App. 1a-19a), is reported at 246 Ariz. 180, 436 P.3d

503. The decision of the Arizona Supreme Court, (App.

46a-48a), granting review on an issue unrelated to that

raised herein, and denying review as to the issue raised

herein, is not published. The superior court’s order

terminating the parental rights of Parents, (App. 20a-45a),

is not published.

JURISDICTION

The judgment of the Arizona Court of Appeals was

entered on January 29, 2019. The decision of the Arizona

Supreme Court denying review as to the issue raised

herein was entered on August 27, 2019. On October 30,

2019, Justice Kagan extended the time within which to file

a petition for a writ of certiorari to and including January

4, 2020. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment states, in relevant part:

“No state shall … deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend,

XIV, § 1.

Arizona Revised Statute, § 8-533(B)(3) states, in

relevant part, that “evidence” will be deemed “sufficient

to justify termination of the parent-child relationship

shall include” that: “the parent has neglected or willfully

abused a child. This abuse includes … situations in which

the parent knew or reasonably should have known that a

person was abusing or neglecting a child.”

The full text of the Arizona state statutory provision is

reproduced in the appendix to this petition. App. 49a-53a.

STATEMENT OF THE CASE

This case concerns the State of Arizona’s termination

of the parental rights of Petitioners Sandra Rey (Mother)

and Sergio Madrid (Father) (collectively “Parents”) to

their young daughter, J.M., who was born in March 2017.

A. Factual background.

Sandra R.1 (Mother) and Sergio M. (Father) are the

parents of F.M., born in 2015, and J.M., born in 2017.

On the evening of April 24, 2017, after six-week-old J.M.

finished nursing, she vomited twice. App. 26a. Mother

and Father both became concerned, and assuming J.M

was having a stomach issue, Father went to the store to

buy something that he believed would help J.M. to feel

better. Ibid. While Father was gone, however, Mother

called him, concerned that J.M.’s medical condition had

1. Mother is also the parent of M.R., born in 2008. Since 2013,

Mother and M.R. had lived with Father and Father was helping

Mother to raise M.R. The State terminated Mother’s parental

rights to M.R. in the same underlying proceeding.

worsened. Ibid. Father immediately returned home and

Parents took J.M. to an urgent-care center for treatment.

Ibid. Once there, the emergency medical personnel made

Parents wait 40 minutes before evaluating J.M. App. 3a.

Once a doctor did examine J.M., he advised Parents to

take J.M. to the hospital and they immediately did so.

App. 26a.

At the hospital, through medical testing, the doctors

determined that J.M. had a large subdural hemorrhage on

the left side of her brain and a small subdural hemorrhage

on the right side. App. 3a. The doctors performed

emergency neurosurgery. Ibid. After the surgery, Dr.

Melissa Jones, a pediatrician who specialized in “child

abuse pediatrics” evaluated J.M. and opined that J.M.’s

condition was caused by abuse. Ibid. J.M. had no external

injuries indicating abuse, such as bruising, lacerations, or

abrasions. App. 27a.

In Arizona, when the State seeks to take custody

of a child from the parent, the State must file a petition

alleging that the child is dependent. See Ariz. R.P. Juv.

Ct. 48(A). Although there was no other evidence of abuse,

and no evidence that any of Parent’s other children had

been abused, the State immediately took custody of both

of Parent’s children, J.M. and F.M., as well as M.R. App.

3a. On May 9, 2017, the State filed a petition alleging F.M.

and M.R. were dependent, and when J.M. was released

from the hospital on May 25, 2017, the State filed a

petition alleging that J.M. was dependent also. App. 23a.

Both petitions were solely based on the State’s allegation

Mother had abused J.M. and Father failed to protect her

from abuse, or that Father had abused J.M. and Mother

had failed to protect her from abuse, or both Parents had

abused J.M. App. 24a. Less than two months later, on July

5, 2017, the State petitioned to terminate Parent’s rights

to their two children as well as Mother’s rights to M.R.,

based on the same allegations in the petition. App. 23a. For

the next seven months, in an effort to keep their children,

Mother and Father completed every service DCS asked

of them. App. 3a-4a. Nonetheless, the State continued to

pursue termination of their parental rights. App. 4a.

B. Trial court proceedings.

In its petition to terminate their parental rights to

all their children, the State alleged that Mother had

abused J.M. and Father had failed to protect J.M. from

the alleged abuse, or, that Father had abused J.M. and

Mother had failed to protect J.M. from the alleged abuse,

or, Father and Mother had both abused J.M. App.3a. The

court conducted a single hearing and jointly considered

the State’s dependency and termination petitions. App.

20a-45a. Over a three-day evidentiary hearing, the State

offered evidence from Dr. Ruth Bristol, J.M.’s pediatric

neurosurgeon, as to the extent of J.M.’s condition. App.

4a. The State also offered the testimony of Dr. Jones, who

opined that J.M.’s condition resulted from non-accidental

trauma and were caused by “acceleration/deceleration

with significant force,” or “shaken-baby.” App. 2a; App 27a.

Parents presented testimony from Dr. Joseph Scheller,

who is a pediatric neurologist with specialties in pediatric

neurology and neuroimaging. App. 4a. Dr. Scheller

testified that in his expert opinion, J.M.’s condition was a

result of an unusual complication from a head injury that

J.M. had sustained during her birth. App. 27-28a. He also

testified that the lack of any external injuries indicated

that J.M. had not been abused. App. 28a.

The State did not offer any other evidence to support

their allegation that Mother had abused J.M. The State

did not offer any other evidence to support their allegation

that Father had abused J.M. The State did not offer any

evidence that J.M. had been crying uncontrollably for an

extensive period. The State did not offer any evidence

that Mother had been unusually stressed, or that Father

had been unusually stressed, or that anything unusual

had occurred prior to the alleged abuse. The State did

not offer any evidence that any circumstance existed

which supported their theory that Mother had suddenly

snapped and shaken her baby. The State did not offer any

evidence that any circumstance existed which supported

their theory that Father had suddenly snapped and shaken

his baby. Rather, Mother testified that “nothing out of the

ordinary” had occurred before J.M. became symptomatic.

App. 31a.

The trial court determined that “[e]ach parent either

abused [J.M.], knew that [J.M.] had been abused, or

reasonably should have known that the other parent had

abused [J.M.].” App. 32a (emphasis added). Based on this

determination, the trial court terminated Parent’s rights

to all their children. App. 43a.

C. Appellate court proceedings.

Mother and Father sepa rat ely appea led the

termination orders. On appeal, Mother argued that the

State had failed to present clear and convincing evidence

that she had willfully abused J.M., or that J.M. had

sustained a serious physical injury in a situation where

she knew or reasonably should have known that Father

was abusing J.M. See Mother’s Op. Brief. Likewise,

Father argued that the State had failed to present clear

and convincing evidence that he had willfully abused

J.M., or that J.M. had sustained a serious physical injury

in a situation where he knew or reasonably should have

known that Mother was abusing J.M. See Father’s Op.

Brief. In a single opinion, the Arizona Court of Appeals

affirmed the orders terminating Mother’s and Father’s

to all of their children. App. 1a-19a. The court held that

the State had failed to present clear and convincing

evidence that Mother had abused J.M. and that the State

had failed to present clear and convincing evidence that

Father had abused J.M. App 2a. Instead, the court found

that since DCS had established that “Mother and Father

abused or failed to take steps to protect J.M. after the

abuse occurred,” specifically, by getting married and

“remain[ing] committed to each other,” after the abuse

occurred, that “the statutory grounds to terminate”

Mother’s and Father’s parental rights were met. App. 14a

(emphasis added).

Mother and Father filed separate petitions for review

to the Arizona Supreme Court. In her petition for review,

Mother raised two issues, neither of which raised the issue

presented herein. See Mother’s Pet. for Rev. In his petition

for review, Father raised the question presented herein,

specifically: “Whether Arizona’s statutory termination

scheme, and case law suggesting that proof of a ground

alone automatically constitutes a lack of parental fitness,

complies with constitutional due process protections and

the dictates of Santosky v. Kramer?” Father’s Pet. for

Rev. at 4. The Arizona Supreme Court granted Father’s

petition for review as to only the question: “Does it

violate due process to make the nexus finding in the

best-interests inquiry?” App.47a The Arizona Supreme

Court granted Mother’s petition for review as to the same

question presented. App. 47a. The questions for which the

Arizona Supreme Court granted review do not address the

question presented herein, nor do the questions relate to

the termination of Mother’s and Father’s parental rights

to J.M. The Arizona Supreme Court denied review as to

the question presented herein.

REASONS FOR GRANTING THE PETITION

“The liberty interest at issue in this case—the

interest of parents in the care, custody, and control of

their children—is perhaps the oldest of the fundamental

liberty interests recognized by” this Court. Troxel v.

Granville, 530 U.S. 57, 65 (2000) (plurality opinion). Nearly

a century ago, in Meyer v. Nebraska, this Court “held

that the ‘liberty’ protected by the Due Process Clause

includes the right of parents to ‘establish a home and

bring up children’.” Id.at 65 (citing Meyer v. Nebraska,

262 U.S. 390, 399, 401 (1923)) Since Meyer, the decisions

of this Court have “made plain beyond the need for

multiple citation that a parent’s desire for and right to

‘the companionship, care, custody and management of his

or her children’ is an important interest that ‘undeniably

warrants deference and, absent a powerful countervailing

interest, protection.’” Lassiter v. Department of Social

Services, 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois,

405 U.S. 645, 651 (1972)).

As held by this Court, “[w]hen the State initiates

a parental rights termination proceeding, it seeks not

merely to infringe that fundamental liberty interest, but

to end it.” Santosky v. Kramer, 455 U.S. 745, 759 (1982).

“If the State prevails,” in a termination action, “it will have

worked a unique kind of deprivation.... A parent’s interest

in the accuracy and justice of the decision to terminate his

or her parental status is, therefore, a commanding one.”

Id. (internal quotations omitted)

In Santosky, this Court held that, under the Due

Process Clause of the federal constitution, before a state

may involuntarily terminate parental rights, the State

must prove its allegations for termination by clear and

convincing evidence. This Court did not explicitly hold,

however, whether the federal constitution requires that

the state must allege and prove that a parent is unfit. This

case calls upon this Court to answer the question left open

in Santosky; whether, in order to involuntarily terminate

a parent’s rights to their child, the Due Process Clause of

the federal constitution requires that the state must allege

and prove that the parent is unfit.

This Court should grant this petition and resolve

the question presented for two reasons. First, although

the vast majority of states have interpreted the federal

constitution to require that the State must allege and

prove that a parent is unfit in order to involuntarily

terminate parental rights, there is a split among the

states. Resolution of the split among the states is urgently

demanded. The question presented has been percolating

through the various state judicial systems for 37 years,

since this Court’s decision in Santosky. Each of the states

have appeared to have reached a resolution that no state

appears inclined to re-evaluate. It is not reasonable that

further percolation would aid this Court in resolving the

question presented.

Second, even among those states that have concluded

that the state must allege and prove that a parent is unfit

in order to involuntarily terminate parental rights, in

the absence of guidance from this Court, the states have

reached widely varying opinions on what evidence will

satisfy the constitutional mandate that the state prove

unfitness. Given this disagreement among the states on

the proper interpretation of the federal constitution as

to such an important fundamental right, this Court’s

guidance is urgently needed.

A. The states are irreconcilably split on whether the

federal constitution requires a state to prove that a

parent is unfit in order to involuntarily terminate

parental rights.

Although this Court has not ever specifically held

that the constitution requires that a state must prove

that a parent is unfit in order to involuntarily terminate

parental rights, this Court’s jurisprudence includes ample

language that strongly suggest that such a showing is

constitutionally mandated. For example, in Quilloin v.

Walcott, this Court stated: “We have little doubt that the

Due Process Clause would be offended if a State were to

attempt to force the breakup of a natural family, over the

objections of the parents and their children, without some

showing of unfitness and for the sole reason that to do so

was thought to be in the children’s best interest.” 434 U.S.

246, 255 (1978) (internal quotation marks and brackets

omitted) (emphasis added). Additionally, in Stanley v.

Illinois, this Court established that the essential predicate

to a person’s parental rights is his or her fitness to parent.

See 405 U.S. 645, 651–52 (1972).

In Santosky, this Court repeatedly emphasized the

connection between the constitutional right to parent

and parental fitness. First, this Court noted: “Nor is it

clear that the State constitutionally could terminate a

parent’s rights without showing parental unfitness.” 455

U.S. at 760, n.4 (emphasis in original). This Court further

stated that “until the State proves parental unfitness, the

child and his parents share a vital interest in preventing

erroneous termination of their natural relationship.”

Id. at 760. Additionally, this Court observed that the

State’s termination of parental rights, “entails a judicial

determination that the parents are unfit to raise their own

children,” id. at 760 and that “the State registers no gain

[toward] its declared goals when it separates children from

the custody of fit parents,” id. at 767. “Any parens patriae

interest in terminating the natural parents’ rights,” this

Court noted, “arises only at the dispositional phase,

after the parents have been found unfit.” Id. at 767, n.17

(emphasis in original).

Thus, in prior opinions, this Court has strongly

implied that in order to involuntarily terminate parental

rights, not only must the State prove its allegations by

clear and convincing evidence, but the State’s grounds for

termination must equate to an allegation that the parent

is unfit. This Court, however, has not explicitly reached

such a holding. In the absence of such a holding, the states

have arrived at different conclusions as to whether the Due

Process Clause requires that the state prove unfitness in

order to involuntarily terminate parental rights.

The vast majority of states have reached the

conclusion that the Due Process Clause requires that the

state prove unfitness in order to involuntarily terminate

parental rights. As stated by the Washington Supreme

Court: “The first question here is whether a parent has

a due process right not to have the State terminate his

or her relationship with a natural child in the absence of

an express or implied finding that he or she, at the time

of trial, is currently unfit to parent the child. According

to the United States Supreme Court, this court, and our

Court of Appeals, the answer is yes.” In re A.B., 232 P.3d

1104, 1109 (Wa. 2010) (en banc) (referencing Santosky,

455 U.S. at 747–48); The vast majority of other states

have reached similar conclusions. See In re Desmond

F., 795 N.W.2d 730, 739 (Wis. App. 2019) (“A court may

not terminate parental rights without first making an

individualized determination that the parent is unfit”);

In re T.S., 192 A.3d 1080, 1091 (Pa. 2018) (holding that in

Santosky, this Court “concluded that clear and convincing

evidence of parental unfitness was constitutionally

necessary”); Adoption of Virgil, 102 N.E.3d 1009, 1013

(Mass. App. 2018) (“In order to terminate a parent’s

rights, the department must first prove and the judge must

find … that the parent is currently unfit...”) In re Ta.L., 149

A.3d 1060, 1081 (D.C. 2016) (citing Santosky and holding

that this Court has “recognized that the fundamental

right of an individual to parent his or her child … may

not be terminated without a predicate determination, by

clear and convincing evidence that the individual is unfit

to parent”); Kenneth C. v. Lacie H., 839 N.W.2d 305, 314

(Neb. 2013) (discussing constitutional constraints and

noting that “there is no clear and convincing evidence that

[appellant father] is presently unfit as a parent”); Copeland

v. Todd, 715 S.E.2d 11, 20 (Va. 2011) (for a terminationof-parental-rights statute “to pass constitutional due

process scrutiny, [it] must provide for consideration of

parental fitness”); In re Ann S., 202 P.3d 1089, 1102

(Cal. 2009) (noting that as a matter of constitutional law,

“some showing of unfitness is called for when a custodial

parent faces termination of his or her rights. ... In that

circumstance, there is no dispute that the best interest of

the child would not be a constitutionally sufficient standard

for terminating parental rights.” (internal quotation

marks and citation omitted)); In re D.T., 818 N.E.2d 1214,

1225–27 (Ill. 2004) (explaining that Santosky requires

clear and convincing evidence of parental unfitness, and

that best interests is a separate inquiry); In re Scott

S., 775 A.2d 1144, 1151 (Me. 2001) (holding that a court

seeking to terminate parental rights must consider

parental unfitness before it separately considers the best

interests of the child and noting that this holding “springs

from the mandates of the federal ... constitution”); In re

J.J.B., 894 P.2d 994, 1003–04 (N.M. 1995) (holding that

the statute establishing “abandonment” as a criterion for

the termination of parental rights was constitutional only

because “abandonment of one’s child establishes parental

unfitness”); In re Kristina L., 520 A.2d 574, 579–80 (R.I.

1987) (explaining that the Constitution requires a finding

of unfitness and that “[t]he best interest of the child

outweighs all other considerations once the parents have

been adjudged unfit. In essence, a finding of parental

unfitness is the first necessary step”); In re J.P., 648

P.2d 1364, 1376 (Utah 1982) (determining that the statute

providing for termination of parental rights based on the

best interests of the child alone was “unconstitutional

on its face” and explaining that “[u]nlike the standard

of ‘parental fitness,’ which imposes a high burden on the

state in an adversary proceeding, the standard of ‘best

interest’ of the child provides an open invitation to trample

on individual rights through trendy redefinitions and

administrative or judicial abuse”); People in the Interest

of A.M.D., 648 P.2d 625, 640 (Colo. 1982) (citing Santosky

to hold only if “a parent is deemed unfit when tested by

demanding standards … is a parent-child relationship to

be terminated”).

Some states, however, have determined that the state

may, consistent with the federal constitution, involuntarily

terminate a parent’s right to their child without requiring

the State to prove that the parent is unfit. For example,

the Maryland Supreme Court has determined that, in

terminating parental rights, the Constitution requires the

state to show “that the parent is ‘unfit’ or that ‘exceptional

circumstances’ exist” before involuntarily terminating a

parent’s right to their child. In re Rashawn H., 937 A.2d

177, 188 (Md. 2007) (emphasis added). In New Jersey, the

courts of that state have held that the State may terminate

parental rights “where the parent is unfit or the child has

been harmed or placed at risk of harm.” New Jersey Div.

of Child Prot. & Permanency v. C.J.R., 175 A.3d 200, 209

(N.J. App. 2017) (citing N.J.S.A. 30:4C–15.1(a)) (emphasis

added).

As this Court has observed, “[w]hen the State moves

to destroy weakened familial bonds, it must provide the

parents with fundamentally fair procedures.” Santosky,

455 U.S. at 753-54. Parents “faced with forced dissolution

of their parental rights have a … critical need for

procedural protections.” Id. This Court’s observation in

Quilloin, supra is correct. The Due Process Clause is

offended by states continuing to force the breakup of a

natural family over the objections of the parents, without

some showing of unfitness. The fact that some states are

continuing to destroy families without first showing that

the parent is unfit is intolerable. Resolution of the question

justifies this Court’s review.

B. The states are irreconcilably split on what the

federal constitution requires a state to prove in

order for the state to prove that a parent is unfit.

Although, as discussed above, this Court has strongly

implied in numerous decisions that a state must prove

that a parent is unfit in order to take a child from his

or her parent, this Court has not yet expressly defined

the term “parental unfitness.” As observed by Justice

Rehnquist, a state scheme that permitted the termination

of parental rights based merely on a finding that “such

action would be in the best interests of the child” would

be unlikely to pass constitutional muster. Santosky, 455

U.S. at 773 (REHNQUIST, J (dissenting)). But what a

state scheme must require in order to pass constitutional

muster remains an open question in this Court. In Troxel,

this Court observed only that parental fitness exists “so

long as a parent adequately cares for his or her children.”

(plurality opinion). This definition is imprecise. Due to the

express lack of a definition of parental unfitness from this

Court, even among those states that have determined that

a state must prove parental unfitness in order to terminate

parental rights, the states have reached widely varying

conclusions as to what this constitutional imperative

entails. This Court has recognized a parent’s rights to

their child as being as essential to the functioning of a

free society as other fundamental rights, such as the right

of persons to speak freely or to exercise their chosen

religion. See Washington v. Glucksberg, 521 U.S. 702, 720

(1997) (“In a long line of cases, [the Supreme Court has]

held that, in addition to the specific freedoms protected

by the Bill of Rights, the ‘liberty’ specially protected by

the Due Process Clause includes the right[] ... to direct

the education and upbringing of one’s children”) The

importance of “the interest of parents in a continuation

of the family unit and the raising of their own children …

cannot easily be overstated.” Santosky, 455 U.S. at 787

(REHNQUIST, J (dissenting)) The lack of a definition of

such an essential term as “parental unfitness” to such an

essential right warrants this Court’s review and guidance.

In order to ensure some basic consistency in the protection

of such a fundamental right, this Court’s intervention is

urgently needed.

Although this Court has yet to explicitly hold what

the state must prove in order to prove that a parent is

unfit, this Court’s jurisprudence provides significant

insight into the correct answer. It is well established

that courts must subject state practices that infringe

on fundamental rights to strict-scrutiny analysis. See

Regents of Univ. of California v. Bakke, 438 U.S. 265,

357 (1978) (“a government practice or statute which

restricts ‘fundamental rights’ … is to be subjected to

‘strict scrutiny”)

“When the State initiates a parental rights termination

proceeding, it seeks not merely to infringe [a] fundamental

liberty interest, but to end it.” Santosky, 455 U.S. at 759.

Since the termination of parental rights is a state action

that not only infringes on a fundamental liberty interest,

but seeks to end it, any definition of parental unfitness

must survive strict-scrutiny analysis. 2 See In re Welfare of

2. As noted by Justice Thomas in his concurring opinion,

in Troxel, the opinion of the plurality did not “articulate[] the

appropriate standard of review,” but since the statute implicated

the infringement of a fundamental right, the appropriate standard

was “strict scrutiny.” (THOMAS, J, concurring)

Child of R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (“Because

the right to parent is a fundamental one,” the parental

termination statute is subject “to strict scrutiny”); Chism

v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (“State statutes

providing for the termination of parental rights are subject

to strict scrutiny”)

Application of this Court’s strict-scrutiny analysis

jurisprudence provides an answer to the question of what

the state must prove in order to prove that a parent is unfit

and terminate parental rights. Such an analysis also shows

that while many states have determined that the state

must prove unfitness to involuntarily terminate rights, the

states are woefully inconsistent in their determination of

what the constitution requires in order to prove unfitness.

For example, in Arizona, although the question of the

constitutionality of Arizona’s parental-rights-termination

statutes has been addressed by Arizona’s appellate

courts, those courts have repeatedly failed to apply the

required strict-scrutiny analysis to properly determine if

its statutes are constitutional. Most recently, the Arizona

Supreme Court held that when a severance is contested,

a court must “find, by clear and convincing evidence,

parental unfitness.” Alma S. v. Dep’t of Child Safety,

425 P.3d 1089, 1093 (Ariz. 2018). The Arizona Supreme

Court correctly noted that “if a statutory ground” for

termination was “not synonymous with unfitness, a

contested severance based on such ground would be

constitutionally infirm.” Id. The court, however, never

took the required step of subjecting Arizona’s parentalrights-termination statutes to a strict-scrutiny analysis

to determine if the statutes actually did satisfy the

constitutionally mandated unfitness requirement. Rather,

the court simply held that they did. Thus, in Arizona, no

Arizona appellate court has ever properly determined

that Arizona’s parental-rights-termination statutes

demand that the state prove all of the elements of parental

unfitness that the constitution demands.

“Strict scrutiny is a searching examination, and it is

the government that bears the burden to prove” that its

statutes satisfy strict scrutiny. Fisher v. Univ. of Texas at

Austin, 570 U.S. 297, 310 (2013; see also Citizens United v.

Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (Laws that

are “subject to strict scrutiny,” require the Government

to prove that the law “furthers a compelling interest and

is narrowly tailored to achieve that interest”) The burden

the government must bear is a “heavy” one. Fisher v.

Univ. of Texas at Austin, 136 S. Ct. 2198, 2211 (2016)).

The first step of strict-scrutiny analysis is that the

“State must first identify its objective with precision,”

and then determine if “that interest is compelling.”

Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1677

(2015). Although the question of the compelling stateinterest furthered by parental-rights-termination statutes

is one that has not been addressed in Arizona, the courts

of other states have addressed the question. Uniformly

those courts have determined that the state interest

furthered by parental-rights-termination statutes is

that of protecting children from harm. See e.g., Matter

of Dependency of M.A.F.S., 421 P.3d 482, 497 (Wash.

App. 2018) (“the compelling interest of the State [is] to

prevent harm to the child from continuation of the parental

relationship”); TR v. Washakie County Dept. of Public

Assistance and Social Services, 736 P.2d 712, 715 (Wy.

1987) (holding same); R.D.L., 853 N.W.2d at 134 (holding

same) These holdings are consistent with this Court’s

identification of the parens patriae interest of the State in

terminating parental rights as its interest “in preserving

and promoting the welfare of the child.” Santosky, 455 U.S.

at 766 (1982). As acknowledged by this Court, the State

“has an urgent interest in the welfare of the child.” Id.

Thus, the compelling state interest furthered by parentalrights-termination statutes is its interest in protecting

children from harm.

Although the state interest in protecting children

from harm is a compelling one, in determining the

constitutionality of state action, a court is not only asked

“to evaluate the legitimacy of the state ends.” Stanley, 405

U.S. at 652. To determine constitutionality, a court must

“determine whether the means used to achieve these ends

are constitutionally defensible.” Id.

In order for a state to prove parental unfitness,

this Court’s jurisprudence dictates that there are three

necessary elements that the state must prove. First,

a state must prove that the unfitness determination

“targets and eliminates no more than the exact source of

the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S.

474, 485 (1988). Second, the state must show a finding of

unfitness “is necessary to achieve the compelling state

interest.” Kenyon v. Hammer, 142 Ariz. 69, 86-87 (1984)

(citing Bernal v. Fainter, 467 U.S. 216 (1984)). “The

test... for ’necessity’” is that such a finding “furthers

the compelling interest ‘by the least restrictive means

practically available.’” Id. Third, encompassed within

strict-scrutiny analysis is the requirement that the state’s

grounds for termination cannot be over-inclusive. See

Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 666

(1990), overruled on other grounds by Citizens United,

558 U.S. at 310. A statute is “over-inclusive” if it “burden[s]

more persons than necessary to cure the problem.” Black’s

Law Dictionary 1279 (10th ed. 2014). Thus, if the State’s

ground for termination would allow for termination when

parents are not unfit, then it is unconstitutionally overinclusive.

The states have reached different conclusions

as to what the state must prove in order to

satisfy the element that a finding of parental

unfitness is necessary to protect the parent’s

child from harm.

The “evil” parental-rights-termination statutes

seek to remedy is harm to children. Numerous states

have recognized the constitutional imperative that their

parental-rights-termination statutes seek to remedy this

“evil,” and go no further. For example, in Washington,

its parental-rights-termination statutes require that,

in every case, the State prove, “by clear, cogent and

convincing evidence,” that “continuation of the parent and

child relationship clearly diminishes the child’s prospects

for early integration into a stable and permanent home.”

M.A.F.S., 421 P.3d at 495 (citing RCW 13.34.190(1)(a)(i)).

Citing this requirement, Washington’s Court of Appeals

has held that Washington’s parental-rights-termination

statutes “ensure” “that the requisite harm to the child is

not merely an abstract concept.” Id. at 496. Washington’s

courts have found that Washington’s parental-rightstermination statutes survive strict-scrutiny analysis

because “the termination statutes require the State to

prove ‘in every instance’ that termination of parental

rights is necessary to prevent harm or the risk of harm

to children.” Id. Similarly, New Jersey’s parental-rights-

termination statutes have been held by New Jersey’s

appellate courts to survive strict-scrutiny analysis

because they require the State to prove, by clear and

convincing evidence, in every case, that “[t]ermination of

parental rights will not do more harm than good.” In re

Guardianship of Jordan, 336 N.J. Super. 270, 274 (App.

2001) (citing N.J.S.A. 30:4C-15.1(a)).

In contrast Washington’s and New Jersey’s statutes

that specifically incorporate a requirement that the State

prove by clear and convincing evidence that termination is

necessary to prevent harm to the child, Florida’s current

termination statutes do not incorporate a requirement

that the State prove a risk of significant harm to the child

from reunification. B.C. v. Dep’t of Children & Families,

887 So.2d 1046, 1050 (Fla. 2004). In considering its

statutes, Florida’s Supreme Court has recognized the

constitutional infirmity created by the absence of this

requirement. Id. at 1052. In a decision pre-dating the

current statutes, the court had held that in order to comply

with constitutional requirements, “before parental rights

in a child can be permanently and involuntarily severed,

the state must show by clear and convincing evidence that

reunification with the parent poses a substantial risk of

significant harm to the child.” Padgett v. Dep’t of Health

& Rehab. Services, 577 So. 2d 565, 571 (1991). In order to

preserve the constitutionality of its current statutes, the

Florida Supreme Court held that Florida’s newly amended

statutes “must be read in light of Padgett’s requirement …

that ‘the state must show by clear and convincing evidence

that reunification with the parent poses a substantial risk

of significant harm to the child.’” B.C., 887 So.2d at 1053

(internal citation omitted). Reading the statutes to include

Padgett’s requirement, Florida’s Supreme Court held that

its statutes are constitutional. Id.

The courts in Arizona, however, have reached a

different conclusion than the courts of Washington, New

Jersey, and Florida. Arizona’s courts have interpreted

that the federal constitution such that the State is

only required to prove, in the best-interest stage that

occurs only after the court finds that the termination

statute has been satisfied, “how the child will benefit

from severance” or that “the child will be harmed if

severance is denied.” Alma S., 425 P.3d at 1093 Since

this occurs in the best-interest analysis, in Arizona, the

standard is preponderance of the evidence, and not clear

and convincing evidence. Id. Thus, in Arizona, parental

rights may be terminated based merely on a finding,

by a preponderance of the evidence, that a child would

benefit in some way from severance of the parent-child

relationship. Id. It is not required that the State ever prove

that termination is necessary to prevent harm to the child.

Here, the Arizona Court of Appeals affirmed the

termination of Mother’s and Father’s rights to J.M based

on testimony from the child safety department’s case

manager that J.M. was separated from her siblings and

her parents, in a non-familial placement that was not

willing to adopt her, but the case manager had “identified

other potential adoptive placements.” App. 18a. The court

determined that this evidence was sufficient to satisfy

the State’s burden to prove that J.M. would derive some

benefit from having all connections to her natural family,

including her siblings, severed. Such evidence, however,

does not satisfy the state’s constitutionally imposed

burden to prove, by clear and convincing evidence, that

termination is necessary to protect the child from harm.

J.M. was removed from her parents when she was sixweeks old. Termination of Mother’s and Father’s parental

rights foreclosed her ability to ever know her parents.

This kind of loss is tremendous. See Santosky, 455 U.S.

at 760–761, n. 11 (describing the foreclosure of a newborn

child’s opportunity to “ever know his natural parents” as

a “los[s] [that] cannot be measured”). This Court’s review

is urgently required to make clear that states cannot

irrevocably end a parent’s fundamental right to the child

based merely on a determination that termination may

provide some minimal benefit to the child.

To prove parental unfitness, the State must

prove that termination of parental rights is

the least restrictive means of protecting the

parent’s child from harm.

“Few forms of state action are both so severe and

so irreversible” as the termination of parental rights.

Santosky, 455 U.S. at 760. Given the severe and irreversible

consequences of the termination of parental rights, some

states have recognized the constitutional imperative of

requiring that, before the State takes the drastic step

of severing the parent-child bond forever, that the State

must prove that no viable alternative to termination exist.

For example, in Alabama, before terminating parental

rights, “the court must examine viable alternatives

to the termination of parental rights.” State Dept. of

Human Res. v. A.K., 851 So. 2d 1, 7 (Ala. App. 2002). By

statute, Alabama law “provides a number of alternatives

to termination, including, without limitation, placement

of the child with a private organization or facility willing

and able to assume the child’s education, care, and

maintenance, and placement of the child with a relative

or other individual found qualified by” the responsible

agency. Id. at 19-20 (MURDOCK, J, dissenting), citing

Ala. Code 1975, § 12-15-71(a)).

Florida, however, has reached a different interpretation

of the federal constitution’s requirements. In Florida’s

view “[c]onstitutional principles and case law require

that [the State] demonstrate that some action short of

termination of parental rights could have been undertaken

by the State before filing a petition to terminate the

parent’s right, indicating that termination is the least

restrictive means of protecting the child from harm.”

S.M. v. Florida Dept. of Children & Families, 202 So. 3d

769, 777 (Fla. 2016). Thus, Florida holds that the leastrestrictive means prong “focuses specifically on what

actions were taken by the State before filing a petition

to terminate the parent’s rights.” Id. at 778. To satisfy

this prong in Florida, the State must “prove that before it

file[d] a petition to terminate the parent’s rights, [it] made

a ‘good faith effort to rehabilitate the parent and reunite

the family.’” Id. at 779. Similarly, Colorado’s Supreme

Court has held that “[b]efore terminating the parent-child

relationship, the trial court must consider and eliminate

less drastic alternatives … and the parents must be given

the opportunity to rehabilitate through participation in the

treatment plan.” A.M. v. A.C., 296 P.3d 1026, 1035 (Colo.

2013) (internal citations omitted).

In contrast to the interpretation of these other states,

Arizona’s courts have held that “all that must be proven by

clear and convincing evidence is that the parent engaged

in one of the statutory grounds for termination, which by

itself constitutes a finding of parental fitness.” Alma S.,

425 P.3d at 1097 (BOLICK, J (concurring in the result))

(internal brackets and quotation marks omitted). The

less drastic alternative of the rehabilitation of the parent,

Arizona’s Supreme Court has held, is merely part of the

“totality of the circumstances that a court must consider

in a termination proceeding.” Id. (internal quotation marks

omitted). As stated by Justice Bolick, a justice of Arizona’s

Supreme Court, Arizona’s Supreme Court has “err[ed]

significantly by failing to accord proper weight” to the

“central” consideration of the state’s efforts to rehabilitate

the parent and the success of those efforts, by “reducing it

from an essential element in proving unfitness to merely

considering it as one part of the child’s best-interests

determination, where it is subordinate to other priorities.”

Id. As Justice Bolick observed, failing to require the State

to prove, as an element of unfitness, that termination is

the least restrictive method of protecting children by, at a

minimum, requiring the state to prove that it made diligent

efforts to reunify the family and that those efforts were

unsuccessful, “bodes serious ramifications that eviscerate

the parent’s fundamental rights.” Id. This is so because

“[t]he unfitness determination cannot be properly made

without considering the state’s reunification efforts and

the parent’s success in regaining or attaining parenting

skills.” Id.

As Justice Bolick has correctly obser ved, the

conclusion of the Arizona Supreme Court that proof

that terminating parental rights is the least restrictive

means of protecting a child is not an “essential element”

of proving parental unfitness is “at odds” with this Court’s

decision in Santosky. Id. In Santosky, “the statutory

scheme before the court required the state” in order

to prove parental unfitness, to prove “’the intensity of

its agency’s efforts to reunite the family.’” Id. (quoting

Santosky, 455 U.S. at 762.) This court held that “[p]roof

the state’s efforts, combined with proof of the parent’s

failings, both by clear and convincing evidence, “not only

makes termination of parental rights possible; it entails a

judicial determination that the parents are unfit to raise

their own children.” Id. (quoting Santosky, 455 U.S. at

760.) In Arizona, “by contrast,” the state is only required

to prove the statutory ground, and is not required to prove

that it made “diligent efforts to reunify the family or that

the parent has failed to remediate the problem.” Id. This

“glaring omission … from a due process prospective,” id.,

is evident in the Arizona Court of Appeals’ decision here.

The Arizona Court of Appeals acknowledged that the

state had “offered Mother and Father services,” and that

Mother and Father participated in services,” but failed

to consider whether the State had proven, by clear and

convincing evidence, that it had been diligent in offering

services, or whether the Mother or Father, or both, had

been so unsuccessful during those seven-months of service

that forever severing their parental rights to their infant

daughter was the least restrictive means of protecting her.

This Court’s review is necessary in order to make clear

what this Court strongly implied in Santosky; that proof

that terminating parental rights is the least restrictive

means of protecting a child is an essential element of

parental unfitness.

To prove parental unfitness, the State must

prove that the grounds for termination is not

over-inclusive.

Assessments of over-inclusivity have long been a part

of a strict-scrutiny analysis. See, e.g., Brown v. Entm’t

Merchants Ass’n, 564 U.S. 786, 804-05 (2011) (holding that

the law at issue failed strict-scrutiny analysis because it

was “vastly” and “seriously overinclusive”); Zablocki v.

Redhail, 434 U.S. 374, 390 (1978) (striking down a law

because it was “substantially overinclusive”). A ground

for termination is overly-inclusive if it allows the State to

infringe on constitutional rights more than is necessary

to further the State’s compelling interest in protecting

children. See ACLU v. Mukasey, 534 F.3d 181, 193 (3rd

Cir. 2008) (holding that a statute is over-inclusive if it

infringes on constitutional rights more “than is necessary

to further Congress’ compelling interest”).

Here, A r i zona t er m i nat ed Pa rent s pa rent a l

rights based on a grounds for termination that are

unconstitutionally over-inclusive. In other words, Arizona

terminated Parents’ parental rights based on grounds

that could apply to fit parents.

Parental rights are individual in nature. See Santosky,

455 U.S. at 764 (1982) (noting that “a parental rights

termination proceeding” deprives “an individual” of a

right.) It is entirely possible that the termination of the

rights of one parent may be constitutional, while the

termination of the rights of another is not. See State in

Interest of A.M., 280 P.3d 422, 423 (Utah 2012). Therefore,

the termination of a person’s parental rights must be

evaluated on an individual basis. Thus, the termination

of Mother’s rights and the termination of Father’s rights

must be considered individually.

The State did not prove that Mother had

abused J.M.; the State did not prove that

Father had abused J.M.

A fit parent does not abuse their child. Here, however,

the Arizona Court of Appeals determined that the State

had proven that J.M. had been injured as the result of

abuse, but that “the evidence did not prove which parent

abused the child.” App. 2a. In other words, the Arizona

Court of Appeals held that the evidence did not prove that

Mother had abused J.M. The Arizona Court of appeals

held that the evidence did not prove that Father had

abused J.M. Thus, the State did not prove that Mother was

unfit because she had abused J.M. The State also did not

prove that Father was unfit because he had abused J.M.

The State did not prove that Mother was

unfit; the State did not prove that Father

was unfit.

As stated by the California Court of Appeals in

considering a case presenting a similar fact pattern to

that present here:

We do not quarrel with the proposition that

when the child’s injury or injuries were obvious

to the child’s caretakers and they failed to

act, the court is not required to identify which

parent inflicted the abuse by act and which

parent inf licted the abuse by omission or

consent. In such a case, the evidence supports

a conclusion that both parents knew the child

was injured or being abused.

Tyrone W. v. Superior Court, 151 Cal. App. 4th 839, 852

(2007).

Here, however, the allegation that J.M. had been

shaken on one occasion was the only allegation of abuse.

There was no other allegation that J.M. had been abused

at any other time. J.M.’s injuries were not readily visible.

In fact, when Parents took J.M. for medical treatment, the

fact that Parents had to wait 40 minutes before being seen

suggests that trained medical personnel did not observe

any serious injury. J.M.’s injuries were only diagnosed

after she was subjected to a series of medical testing.

Here, as in Tyrone W., the child’s “injuries were not visible

and there were no obvious signs of injury.” Id. at 851. Here,

as in Tyrone W., the record contained “no evidence to

support a finding that, if only one parent inflicted serious

physical harm on the child, the other parent knew about

the abuse and either consented to it or failed to act to

prevent it, thus allowing the abuse to continue.” Id. at

852. And here, as there, there was “no evidence either

parent witnessed the other physically abuse or mistreat

the baby.” Id. As held by the California Court of Appeals,

“where there is no evidence to show both parents knew

the child was abused or injured, the court must identify

the parent who inflicted the child’s injuries before” it can

find that either parent is unfit. Id.

The Arizona Court of Appeals did not cite nor discuss

any evidence that indicated that Mother knew or should

have known that J.M. would be abused. Rather, the

Arizona Court of Appeals found that Mother’s rights could

be terminated because, “after [she] knew or reasonably

should have known that J.M. had been abused,” she failed

to protect J.M. App. 13a (emphasis added). Thus, the

court did not determine that Mother knew, or reasonably

should have known, that J.M. would be abused, and failed

to protect her from the abuse that actually occurred, but

rather that after J.M. had been abused, Mother might fail

to protect her from abuse that may occur in the future.

“Failure,” however, is defined as the “omission of

performance of an act or task.” Webster’s Third New

International Dictionary 815 (3rd ed. 2002). The term

implies that a person must have the opportunity to perform

a duty or act before he or she can fail to perform. An

individual does not have an opportunity to act if she does

not know that a need exists. Thus, as numerous states have

held, in order for a parent to be deemed unfit for failing

to protect her child from abuse, the State must prove that

she had the knowledge and opportunity to act but failed

to do so. See e.g. D.N. v. Dep’t of Children & Families,

277 So. 3d 127, 131 (Fla. Dist. Ct. App. 2019) (“Florida

courts have declined to terminate the parental rights of

a parent where the facts fail to establish that the parent

was involved in the abuse of a child or knew about the

abuse but failed to prevent it”); In re A.A., 318 P.3d 1019

(Kan. Ct. App. 2014) (unpublished decision) (overturning

of finding of parental unfitness after it determined that

“[t]here was never any direct evidence, much less clear

and convincing evidence, presented at trial that [the

parent] participated in the abuse of [the child] or even

knew about the abuse of [the child].”) State ex rel. K.G.,

841 So. 2d 759, 763–64 (La. 2003) (overturning a finding

of parental unfitness because “the trial court’s finding

was manifestly erroneous as the state failed to prove by

clear and convincing evidence that [the parent] knew of

the abuse but failed to take any action to prevent it.” In

re Welfare of A. P. S., No. A10-2159, 2011 WL 2119418, at

*8 (Minn. Ct. App. May 31, 2011) (unpublished opinion)

(overturning a finding of parental unfitness and holding

“[w]here a parent has not personally inflicted [abuse] on

the child, it is difficult to conceive how …. that harm could

indicate that parent’s lack of regard for the well-being of

the child unless that parent were somehow aware of the

harm and its cause” and the record in that case did “not

support a finding that [the parent] knew or should have

known that” the child was being abused.”)

Furthermore, even if, contrary to the finding of every

other state court to have considered the question, Mother

could be deemed to have failed to protect J.M. for actions

she took “after the abuse occurred,” the actions relied

upon by the Arizona Court of Appeals in no rational sense

indicate parental unfitness.

First, the court cited Mother’s action of “continu[ing]

to deny that abusive conduct occurred.” Mother’s

continuing denial that any abuse had occurred, however,

was reasonable. The only incident of alleged abuse was

that J.M. had been shaken on one occasion. The theory of

abuse by “shaken baby” has, in recent years, been soundly

and repeatedly called into question by both legal and

medical experts. Three Justices of this Court have noted

that “[d]oubt has increased in the medical community

‘over whether infants can be fatally injured through

shaking alone.’” Cavazos v. Smith, 565 U.S. 1, 13–14 (2011)

(GINSBURG, J., dissenting) (quoting State v. Edmunds,

746 N.W.2d 590, 596 (2008)). Since 2011, the doubts about

the theory of shaken baby have only increased. See, e.g.,

Del Prete v. Thompson, 10 F. Supp. 3d 907, 957 n.10 (N.D.

Ill. 2014) (noting that “a claim of shaken baby syndrome

is more an article of faith than a proposition of science”);

New York v. Bailey, 999 N.Y.S.2d 713, 726 (N.Y. Monroe

Cnty. Ct. Dec. 16, 2014) (“[A] significant and legitimate

debate in the medical community has developed in the

past 13 years, over whether young children can be fatally

injured by means of shaking[.]”). Dr. Scheller, a pediatric

neurologist—a medical expert— testified that he had

doubts that J.M’s injuries were caused by abuse. The fact

that numerous medical and legal experts have called into

question the occurrence of abuse in circumstances of an

alleged “shaken-baby” and that a medical expert familiar

with the specific circumstances of J.M.’s injuries doubted

that abuse occurred, Mother’s denial that abuse occurred

was reasonable, and in no way an indication of her lack of

parental fitness.

The A rizona Court of Appeals also based its

termination of Mother’s parental rights on her decision

to continue her relationship with Father. But this

decision also does not in any way indicate her unfitness

to parent J.M. As noted by a New Jersey appellate court,

“continuation of a relationship with a loved one is not a

basis for interference with a person’s parental rights;

it is the failure to protect a child from harm caused or

threatened by the loved one that provides a basis for such

intrusion.” New Jersey Div. of Youth & Family Servs. v.

A.M.H., 2009 WL 1181606, at *19 (N.J. Super. Ct. App.

Div. May 5, 2009) (unpublished opinion).

The Arizona Court of Appeals based its decision to

affirm the termination of Father’s parental rights on the

same actions it relied upon to affirm the termination of

Mother’s parental rights. As with Mother, the Arizona

Court of Appeals determined that Father failed to protect

J.M. “after the abused occurred,” because he “continued

to deny that abusive conduct occurred, presented a ‘united

front’” with Mother, and Mother and Father “remained

committed to each other and their relationship.” App.

12a-13a (emphasis added). For the same reasons argued

above, Father’s belief that J.M. had not been abused was

not evidence of his lack of parental fitness. Neither was

his decision to continue his relationship with Mother.

Both a fit parent and an unfit parent could have

held the belief that J.M. had not been abused. Both a fit

parent and an unfit parent could have chosen to continue

their relationship with their loved one. In affirming the

termination of Mother’s and Father’s parental rights, the

Arizona Court of Appeals determined only whether the

State had satisfied the statutory grounds for termination,

but failed to consider whether the conduct satisfied the

constitutional requirement that the state prove that the

parent cannot “adequately care[] for his or her children,”

Troxel, 530 U.S. at 68 (plurality opinion), i.e., is unfit.

This Court should accept review to make clear that the

constitution requires that for the state to so definitively

and permanently infringe on the fundamental rights of

parents, a state’s statutory grounds for the termination

of parental rights cannot be over-inclusive; they must

be limited to conduct which actually equates to parental

unfitness.

CONCLUSION

As this Court has recognized, quoting Cicero: “The

first bond of society is marriage; next, children; and then

the family.” Obergefell v. Hodges, 135 S. Ct. 2584, 2594

(2015) (citing De Officiis 57 (W. Miller transl. 1913)). When

the State permanently severs a parent-child relationship,

it destroys a family. When the State is repeatedly able to

unconstitutionally destroy families, the situation threatens

the basic foundations of our society. The question presented

in this case warrants this Court’s review.

Respectfully submitted,

Kristina B. Reeves

Counsel of Record

Mark Shields

DeeA n Gillespie

GillespieShields

7319 North 16th Street, Suite 100

Phoenix AZ 85020

(602) 870-9700

kreeves@gillaw.com

Counsel for Petitioners

APPENDIX

Appendix

A OF ARIZONA

APPENDIX A —

OPINION

COURT OF APPEALS, DIVISION ONE,

FILED JANUARY 29, 2019

IN THE ARIZONA COURT OF

APPEALS, DIVISION ONE

No. 1 CA-JV 18-0147

SANDRA R., SERGIO C.,

Appellants,

DEPARTMENT OF CHILD

SAFETY, M.R., F.M., J.M.,

Appellees.

January 29, 2019, Filed

Appeal from the Superior Court in Maricopa County

No. JD20586

JS19097

The Honorable Alison Bachus, Judge

AFFIRMED

OPINION

Judge Paul J. McMurdie delivered the opinion of the

Court, in which Presiding Judge Jennifer B. Campbell

and Judge Kent E. Cattani joined.

Appendix A

McMURDIE, Judge:

¶1

Sandra R. (“Mother”) appeals the termination of

her parental rights to her three children: M.R., born in

2008; F.M., born in 2015; and J.M., born in 2017. Sergio

C. (“Father”) appeals the termination of his rights to

their two children in common, F.M. and J.M.1 We affirm

the termination orders and hold: (1) the court committed

harmless error by allowing the Department of Child

Safety (“DCS”) to introduce statements from scientific

articles without meeting the foundation requirements of

Arizona Rule of Evidence 803(18); (2) sufficient evidence

supports the abuse finding related to the shaken-baby

injury (nonaccidental trauma) even though the evidence

did not prove which parent abused the child; and (3) under

Alma S. v. DCS, 245 Ariz. 146, 425 P.3d 1089 (2018),

the “constitutional nexus” requirement established by

Linda V. v. ADES, 211 Ariz. 76, 117 P.3d 795 (App. 2005),

is considered under the totality of the circumstances in

determining whether termination is in the best interests

of the child.

FACTS AND PROCEDURAL BACKGROUND

¶2

In 2013, Mother and her five-year-old daughter

M.R. began living with Father. Mother subsequently gave

birth to F.M. and J.M. In April 2017, six-week-old J.M.

slept most of the day and vomited “a lot” that evening.

Mother noticed that J.M.’s arms began shaking at various

1. M.R.’s father’s parental rights were terminated in the same

proceeding. He is not a party to this appeal.

Appendix A

times. Assuming it was a stomach issue, Father went to

the store to buy tea for J.M. Meanwhile, J.M.’s condition

worsened. J.M. turned pale, started moaning, could not

fully open her eyes, and her arms became stiff. After

Father returned from the store, Mother and Father

took J.M. to an urgent-care center where they waited

more than 40 minutes for the doctor to evaluate her.

Upon examination, the doctor told Mother and Father

to immediately take J.M. to Phoenix Children’s Hospital

(“PCH”).

¶3

At PCH, a scan revealed that J.M had a large

subdural hemorrhage on the left side of her brain

and a smaller subdural hemorrhage on the right. She

also had damage to her optic nerve and severe retinal

hemorrhaging in both eyes. The hemorrhaging caused

her brain to shift out of position and compress her

brainstem. Because J.M.’s life was in danger, doctors

had to perform emergency neurosurgery. After surgery,

Dr. Melissa Jones, a pediatrician with a specialty in

child abuse pediatrics, evaluated J.M. After ruling out

possible medical causes, Dr. Jones determined the injuries

resulted from abusive head trauma and Mother and Father

provided no alternative explanation for the cause of J.M.’s

injuries. PCH reported the injuries, and DCS took custody

of all three children and filed dependency petitions. The

juvenile court later established the case plan as severance

and adoption.

¶4

In July 2017, DCS petitioned to terminate Mother’s

rights to J.M., F.M., and M.R., and Father’s rights to

J.M. and F.M., under the abuse ground. See Ariz. Rev.

Stat. (“A.R.S.”) § 8-533(B). Over seven months, DCS

Appendix A

offered Mother and Father services, including hair-follicle

testing to rule out drug abuse, psychological evaluations,

individual counseling, and a parent aide during visits with

the children. Although Mother and Father participated in

services, in discussions with counselors, they continued to

minimize J.M.’s severe injuries and provided no further

explanation for how the injury occurred.

¶5

The juvenile court held a three-day termination

hearing. Dr. Jones testified for DCS, opining that J.M.’s

injuries resulted from nonaccidental trauma. Dr. Ruth

Bristol, J.M.’s pediatric neurosurgeon, testified on the

manner and extent of J.M.’s injuries. Mother and Father’s

expert, Dr. Joseph Scheller, a pediatric neurologist with

specialties in pediatric neurology and neuroimaging,

opined that J.M.’s injuries most likely resulted from an

unusual complication of a birth injury. The court took

the matter under advisement and later issued an order

terminating Mother’s rights to J.M., F.M., and M.R.,

and Father’s rights to J.M. and F.M. Mother and Father

timely appealed. We have jurisdiction pursuant to Article

6, Section 9 of the Arizona Constitution and A.R.S.

§§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶6

To terminate a parent-child relationship, the court

must find at least one statutory ground for termination

under A.R.S. § 8-533(B) by clear and convincing evidence.

Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d

1013 (2005). The court must also find termination is in the

child’s best interests by a preponderance of the evidence.

Id. We review the court’s termination determination for

Appendix A

an abuse of discretion and will affirm unless no reasonable

evidence supports the court’s findings. Mary Lou C. v.

ADES, 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43 (App. 2004). The

juvenile court “is in the best position to weigh the evidence,

observe the parties, judge the credibility of witnesses, and

resolve disputed facts.” ADES v. Oscar O., 209 Ariz. 332,

334, ¶ 4, 100 P.3d 943 (App. 2004).

A. The Court Committed Harmless Error by Allowing

DCS to Cross-Examine Mother and Father’s Expert

Witness with Publications in His Field Without

Laying Proper Foundation.

¶7

Mother and Father assert that DCS failed to

lay proper foundation for the scientific articles it used

to impeach Mother’s and Father’s expert witness, Dr.

Scheller. Although we agree the court erred by not

requiring DCS to lay the proper foundation for the

publications, we conclude the error was harmless. See

Monica C. v. ADES, 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37 (App.

2005) (harmless error applies in juvenile proceedings).

¶8

This cour t w ill aff ir m the juvenile cour t’s

evidentiary rulings “absent a clear abuse of its discretion

and resulting prejudice.” Lashonda M. v. ADES, 210

Ariz. 77, 82-83, ¶ 19, 107 P.3d 923 (App. 2005). Abuse of

discretion occurs when a court’s decision is “manifestly

unreasonable” or based on “untenable” grounds. Id.

(quoting Quigley v. City Court of Tucson, 132 Ariz. 35,

37, 643 P.2d 738 (1982)).

¶9

Arizona Rule of Evidence 803(18) governs the

admission of hearsay statements from learned treatises,

Appendix A

periodicals, or pamphlets. Rule 803(18) provides that

statements from such publications may be read into

evidence, but not received as an exhibit, if:

(A) the statement is called to the attention of an

expert witness on cross-examination or relied

on by the expert on direct examination; and

(B) the publication is established as a reliable

authority by the expert’s admission or testimony,

by another expert’s testimony, or by judicial

notice.

“The learned treatise exception to the hearsay rule stems

from [the] . . . independent guarantees of trustworthiness

of such works.” Rossell v. Volkswagen of Am., 147 Ariz.

160, 173, 709 P.2d 517 (1985). By requiring the proponent to

elicit an expert’s recognition of the publication’s reliability,

Rule 803(18)(B) provides the proper method to verify the

statement’s trustworthiness. See State v. West, 238 Ariz.

482, 500-501, ¶¶ 68, 70, 362 P.3d 1049 (App. 2015).

¶10

Mother and Father argue DCS failed to lay the

proper foundation before recounting statements from the

scientific articles in the following two instances:

[DCS Counsel:] Okay. In Jones’ study,

he concluded, again, that these are

rare, but cannot be diagnosed unless

nonaccidental head injury had been

questioned thoroughly, do you agree

with that statement?

Appendix A

[Dr. Scheller:] Yes and no. It’s sort of -- it’s

a very complicated statement that he

said. And I’m happy to explain why or

I’ll just say -***

[DCS Counsel:] And you’re familiar with the

Feldman study that was published in

September of 2001?

[Dr. Scheller:] Yes, 2001. Because he’s

published a real lot of studies.

***

[DCS Counsel:] And [Feldman’s] study

found chronic or mixed chronic and

acute subdural hematoma were found

only in abused children in his study,

that’s what he found, correct?

[Dr. Scheller:] Yes.

Mother timely objected to each line of questioning, citing

DCS’s failure to establish that the publications containing

the articles were reliable as required by Rule 803(18)

(B). The court overruled each objection and found Dr.

Scheller’s knowledge of the studies provided adequate

foundation to question him about the contents.

Appendix A

¶11

DCS asserts it was not obligated to follow Rule

803(18)’s foundation requirements during the crossexamination because it “did not seek to admit the articles

into evidence.” We reject this argument. By asking Dr.

Scheller to confirm its paraphrased descriptions of the

articles’ findings, DCS put the truth of the findings

themselves at issue. See Ariz. R. Evid. 801(c) (hearsay

means an out-of-court statement offered to prove the truth

of the matter asserted in the statement); Ariz. R. Evid.

802 (hearsay generally inadmissible); West, 238 Ariz. at

501, ¶ 71 (superior court properly sustained objection to

prosecutor’s reference to the findings of a “great deal of

literature” in scientific journals); Sharman v. Skaggs Cos.,

124 Ariz. 165, 168-69, 602 P.2d 833 (App. 1979) (discussion

of a report’s findings on cross-examination introduced

hearsay statements from report). Thus, before recounting

the articles’ findings, DCS was required to first lay proper

foundation concerning the reliability of the publications

in which those articles appeared, or the reliability of the

studies within the articles. DCS did not lay the required

foundation, and the court erred by overruling Mother’s and

Father’s objections to DCS’s improper cross-examination.

¶12

Although the court should have required DCS to

establish the publications’ reliability before receiving

evidence of the articles’ findings, we nonetheless conclude

that the error was harmless. Dr. Scheller conceded

his familiarity with each authority, was able to answer

DCS’s follow-up questions, and at times challenged DCS’s

attempts to restrict his explanations of the articles’

findings. While Mother and Father take issue with whether

the referenced publications were current and credible,

Appendix A

their respective counsel did not develop these arguments

on redirect examination despite the opportunity to do so.

And although the juvenile court ultimately rejected Dr.

Scheller’s opinion, it based that decision on the testimony

of J.M.’s treating physicians and Dr. Scheller’s concessions

surrounding the cause of J.M.’s injuries, not whether Dr.

Scheller’s opinion was contrary to the weight of published

authority.

B. Sufficient Evidence Supports the Court’s Order

Terminating Mother’s and Father’s Rights Based

on Abuse or Failure to Protect from Abuse.

¶13

Mother and Father argue insufficient evidence

supports the court’s termination order under the abuse

ground. A.R.S. § 8-533(B)(2) provides:

Evidence sufficient to justify the

termination of the parent-child relationship

shall include . . .

***

[t]hat the parent has neglected or

wilfully abused a child. This 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.

If a parent abuses or neglects their child, the court may

terminate that parent’s rights to their other children

10a

Appendix A

on this basis, even if there is no evidence that the other

children were abused. Linda V., 211 Ariz. at 79, ¶ 14.

¶14

Reasonable evidence supports the court’s finding

that J.M.’s injuries were caused by abuse. While in

Mother and Father’s exclusive care, J.M. suffered a large

subdural hemorrhage on the left side of her brain and

a smaller subdural hemorrhage on the right. She also

had significant midline shift and herniation of her brain,

meaning there was so much pressure in the brain that it

started to shift out of its normal position. J.M. required

emergency neurosurgery to relieve the pressure because

it had become so great that her skull could no longer

contain the brain and its contents without threatening

her life. She also had diffused retinal hemorrhages (or

bleeding) in all quadrants of the retina and all layers of the

retina. Her head injuries negatively affected a multitude

of systems in her body. Post-trauma, doctors diagnosed

her with cerebral palsy because she had significant motor

impairment. She also suffers from regular epileptic

seizures and is blind. She now requires occupational

therapy, feeding therapy, and 24-hour monitoring. Dr.

Bristol testified that J.M. will likely require long-term,

full-time care for the foreseeable future.

¶15

At the termination hearing, Dr. Jones opined

that J.M.’s injuries occurred within a few days before

her hospital admission and resulted from nonaccidental

trauma. After reviewing the family’s medical history

and J.M.’s birth records, Dr. Jones found no alternative

medical explanation for her injuries. Similarly, Dr. Bristol

testified that J.M.’s injuries were most likely caused by

11a

Appendix A

recent trauma. Dr. Jones added that J.M.’s lack of external

injuries did not rule out abuse.

¶16

Dr. Scheller disagreed and testified that J.M.’s

injuries resulted from a subdural hematoma at birth that

began spontaneously re-bleeding some weeks later, which

in turn caused her retinal hemorrhages. Dr. Scheller

conceded that this occurrence would be “an unusual

complication” and that no other non-traumatic medical

condition could have caused J.M.’s injuries.

¶17

Dr. Jones and Dr. Bristol opined on Dr. Scheller’s

conclusion, testifying that such an occurrence under

the circumstances present with J.M. would be “very,

very rare.” Dr. Jones testified that “children [who]

have spontaneous re-bleeding [also] have some other

complicating factor with their brain.” Dr. Bristol testified

that in her experience as a pediatric neurosurgeon she

had “not seen a spontaneous re-bleed to that degree.”

Dr. Jones opined that J.M.’s presentation and injuries did

not correspond to Dr. Scheller’s theory, particularly the

diffuse nature of J.M.’s retinal hemorrhages, which was

consistent with “massive trauma with acceleration and

deceleration.” Regarding J.M.’s eye injuries, Dr. Jones

stated that:

[T]here had to be [a] significant force that led

to that pattern of retinal hemorrhages. You can

get retinal hemorrhages from many different

causes, but the only times we see [J.M.’s]

pattern of retinal hemorrhages in the pediatric

population is from abusive head trauma, severe

12a

Appendix A

motor vehicle collisions or there’s some case

reports of children who have fallen out of two

or three story windows onto concrete.

Dr. Jones specifically distinguished Dr. Scheller’s theory,

testifying that “when the pressure is high in the brain, you

can get retinal hemorrhages,” but they are typically “in

the . . . most recessed part of the retina . . . surrounding

the optic nerve,” which was “not the same pattern that

[J.M.] had.”

¶18

Throughout the investigation, dependency, and

termination hearings, Mother and Father maintained

that J.M. had suffered no accidents or injuries that would

explain her injuries. At J.M.’s first health checkup (a few

weeks before her traumatic brain injury), the doctor

examining J.M. noted no concerns. Likewise, Mother

and Father maintained that J.M. only began showing

symptoms the evening they took her to the hospital. In

sum, reasonable evidence supports the juvenile court’s

determination that J.M.’s injuries were the result of

nonaccidental trauma.

¶19

Based on its conclusion that J.M.’s injuries were

the result of nonaccidental trauma, the court also found

that Mother or Father, or both, intentionally abused

J.M. or knew or reasonably should have known that the

other parent abused her, “as she was in their sole care

when she suffered life-threatening injuries.” The court

also found that, despite the “timing, extent, mechanics

and presentation of [J.M.’s] injuries,” Mother and Father

continued to deny that abusive conduct occurred, presented

13a

Appendix A

a “united front,” and remained committed to each other

and their relationship. And because neither parent had

“shown a willingness to leave the other to protect the

children from the other parent,” the court concluded that

“both parents have demonstrated their lack of protective

capacities for all of the children, not only [J.M.].”

¶20 Mother and Father have consistently maintained

that they were J.M.’s only caregivers since her birth.

Mother and Father continuously denied J.M. was abused,

even after they were confronted with PCH’s medical

assessments of J.M.’s injuries. Despite strong evidence

that at least one of them caused J.M.’s injuries, Mother

and Father made no attempt to distance themselves from

one another. To the contrary, in the months following the

incident with J.M., Mother and Father deepened their

commitment to one another by marrying. Given this

record, reasonable evidence supports the juvenile court’s

determination that: (1) one or both parents willfully

abused J.M. by causing J.M.’s physical injuries; and (2)

one or both parents failed to protect J.M. after they

knew or reasonably should have known J.M. had been

abused. See Maricopa County Juv. Action Nos. JS-4118/

JD-529, 134 Ariz. 407, 408-09, 656 P.2d 1268 (App. 1982)

(where mother refused to obtain a divorce or otherwise

separate herself from husband who had committed

abuse, her “knowing failure” to protect her children

from abuse by her husband justified termination of her

parental rights); see also Mario G. v. ADES, 227 Ariz.

282, 287-88, ¶¶ 19-25, 257 P.3d 1162 (App. 2011) (finding

a father’s failure to protect one child from abuse justified

termination of his rights to another child); Linda V., 211

14a

Appendix A

Ariz. at 79, ¶ 14 (parents “who permit another person to

abuse or neglect their children” may have their parental

rights terminated). Once DCS established Mother and

Father abused or failed to take steps to protect J.M. after

the abuse occurred, the statutory grounds to terminate

Mother’s and Father’s rights to the other children were

also met. A.R.S. § 8-533(B)(2); Linda V., 211 Ariz. at

79, ¶ 14. Accordingly, reasonable evidence supports the

court’s finding that termination of Mother’s rights to J.M.,

F.M., and M.R., and Father’s rights to J.M. and F.M., was

justified under A.R.S. § 8-533(B)(2).

C. Alma S. v. DCS Requires Courts to Consider the

Connection Between the Prior Abuse of One Child

and the Risk of Future Abuse to the Other Children

During the Best-Interests Inquiry.

¶21

Mother and Father argue insufficient evidence

supports the juvenile court’s finding that there was a

“nexus” between the abuse of J.M. and the risk of abuse

to F.M. and M.R. In the past, this court has expressly held

that termination of parental rights to a child who has not

been the direct target of abuse requires the party seeking

termination of rights to show, at the statutory-grounds

stage, “a constitutional nexus between the prior abuse

and the risk of future abuse to the child at issue.” Seth

M. v. Arienne M., 245 Ariz. 245, 248, ¶ 11, 426 P.3d 1224

(App. 2018) (quoting Tina T. v. DCS, 236 Ariz. 295, 299,

¶ 17, 339 P.3d 1040 (App. 2014)); Mario G., 227 Ariz. at 285,

¶ 16. This court recently revisited the constitutional nexus

requirement, noting that it “first appeared in a footnote

in the Linda V. opinion, although that opinion does not

15a

Appendix A

identify any legal source for such a requirement and it

is not present in the statute itself.” Seth M., 245 Ariz. at

248, ¶ 11 (citing Linda V., 211 Ariz. at 80, ¶ 17, n.3).

¶22 The uncertainty expressed in Seth M. towards

requiring this showing at the statutory-grounds stage

was realized when our supreme court issued its decision in

Alma S. v. DCS. In Alma S., the supreme court held “the

substantive grounds for termination listed in § 8-533(B)

[are synonymous] with parental unfitness,” and once the

juvenile court finds a parent to be unfit, the best-interests

analysis is triggered. 245 Ariz. at 150-51, ¶¶ 9, 12. Alma

S. thus makes clear that, at the statutory-grounds stage,

the juvenile court should only determine whether the

party seeking termination has met its burden of proving a

parent unfit under one of the grounds for termination. See

Alma S., 245 Ariz. at 154, ¶ 32-33 (Bolick, J., concurring

in the result) (“However, the Court today holds that all

that must be proven by clear and convincing evidence is

that the parent engaged in one of the statutory grounds

for termination, which by itself ‘constitute[s] a finding

of parental fitness.’” (alteration in original) (quoting id.

at 150, ¶ 11)). Considerations outside the scope of A.R.S.

§ 8-533(B)(2)—such as whether a connection exists

between a parent’s abuse of one of their children and

the risk of abuse to their other children—are left to the

best-interests inquiry. This conclusion not only comports

with Alma S.’s discussion of the two-step termination

inquiry, but also Linda V.’s original application of a

“nexus” requirement. See Linda V., 211 Ariz. at 80, ¶ 17,

n.3 (addressing the need to demonstrate a nexus between

prior abuse and the risk of future abuse in the court’s

best-interests analysis).

16a

Appendix A

D. Reasonable Evidence Supports the Court’s Finding

that Termination of Mother’s and Father’s Parental

Rights Served the Children’s Best Interests.

¶23 Once the court finds a parent unfit under at least

one statutory ground for termination, “the interests of

the parent and child diverge,” and the court proceeds to

balance the unfit parent’s “interest in the care and custody

of his or her child . . . . against the independent and often

adverse interests of the child in a safe and stable home

life.” Kent K., 210 Ariz. at 286, ¶ 35. “[A] determination of

the child’s best interest must include a finding as to how

the child would benefit from a severance or be harmed by

the continuation of the relationship.” Maricopa County

Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730

(1990) (emphasis omitted). Courts “must consider the

totality of the circumstances existing at the time of the

severance determination, including the child’s adoptability

and the parent’s rehabilitation.” Alma S., 245 Ariz. at 148,

¶ 1. In cases where termination of a parent’s rights to one

child is predicated on the parent’s abuse of another child,

courts must also consider the connection between that

abuse and the risk of future abuse to the child at issue.

See Seth M., 245 Ariz. at 248, ¶ 11; Mario G., 227 Ariz. at

285, ¶ 16; Linda V., 211 Ariz. at 79-80 ¶¶ 14-15, 17. “When

a current placement meets the child’s needs and the

child’s prospective adoption is otherwise legally possible

and likely, a juvenile court may find that termination of

parental rights, so as to permit adoption, is in the child’s

best interests.” Demetrius L. v. Joshlynn F., 239 Ariz. 1,

4, ¶ 12, 365 P.3d 353 (2016). Finally, “[t]he existence and

effect of a bonded relationship between a biological parent

17a

Appendix A

and a child, although a factor to consider, is not dispositive

in addressing best interests.” Dominique M. v. DCS, 240

Ariz. 96, 98, ¶ 12, 376 P.3d 699 (App. 2016).

¶24 Here, based on its finding that Mother or Father

abused J.M. or that they failed to protect J.M. from abuse,

the juvenile court found that it had “grave concerns about

the parents’ protective capacities in the future.” Mother

and Father argue that the risk of abuse to F.M. and M.R.

is remote because J.M. was a vulnerable infant, unlike

the older children. But the juvenile court rejected this

argument and concluded that by failing to take steps

to protect J.M. from the unidentified abusing parent,

“Mother and Father have demonstrated they cannot or

will not protect their children.” The court specifically

found that:

Although [M.R. and F.M.] are no longer infants,

[they] are young children who are vulnerable.

[M.R.] has already been the victim of child

abuse by Mother in the past. 2 Mother and

Father . . . have not been forthcoming about the

cause of [J.M.’s] injuries.

The court also found that “given the parents’ persistent

denials that any abuse occurred,” both J.M. and her older

siblings remained at risk of future abuse.

2. In 2011, while Mother went shopping, she left M.R., who was

two years old at the time, unsupervised inside her car for 40 minutes.

The temperature outside was 106 degrees. A police officer removed

M.R. from the car before she suffered any serious injury, but Mother

was arrested and subsequently pled guilty to child abuse.

18a

Appendix A

¶25 Reasonable evidence in the record supports these

findings. M.R. was nine years old at the time of the

termination hearing and F.M. was almost three—both still

dependent on Mother and Father to meet their needs. Both

parents’ actions after learning the nature of J.M.’s injuries

demonstrated they could not recognize danger and keep

the children safe. As J.M.’s primary caregivers, Mother

and Father are the only ones in a position to explain how

her injuries occurred. Mother and Father have refused to

acknowledge abuse occurred or that at least one of them

was responsible. Instead, they have remained together,

and neither parent has taken steps to prevent the children

from being returned to the same situation that led to J.M.’s

near-fatal injuries. On this record, we conclude reasonable

evidence supports the court’s finding that the abuse to J.M.

bore a substantial connection to the risk of future abuse

to the other children in Mother’s and Father’s care.

¶26 Moreover, reasonable evidence concerning the

children’s adoptability supports the juvenile court’s bestinterests finding. The case manager testified that F.M. and

M.R. were in a kinship placement that was meeting their

needs and the foster parents wished to adopt them. Due

to J.M.’s special needs, she was in a separate placement

for a medically-fragile child that was providing her the

specialized care she required. Although J.M.’s placement

was not willing to adopt, DCS identified other potential

adoptive placements for her. Considering the children’s

stability in their current placements, and the availability

of adoptive placements, the case manager testified that

termination would provide the children with “a safe,

secure environment, where all of their needs will be

19a

Appendix A

met.” Reasonable evidence supports the court’s finding

that termination was also in the children’s best interests

because of their adoptability.

CONCLUSION

¶27 For the foregoing reasons, we affirm the juvenile

court’s order terminating Mother’s rights to J.M., F.M.,

and M.R. and Father’s rights to J.M. and F.M.

AMY M. WOOD

Clerk of the Court

FILED: AA 12

20a

AppendixOF

B THE SUPERIOR

APPENDIX B — ORDER

COURT OF ARIZONA, MARICOPA COUNTY,

FILED MARCH 23, 2018

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

IN THE MATTER OF:

MARLENE VEGA REY

F1000131

DOB: 8/13/2008

FALY JASMINE MADRID

F1117404

DOB: 3/21/2015

JULIETA MADRID

F1118162

DOB: 3/11/2017

UNDER ADVISEMENT RULING

ORDER ADJUDICATING MARLENE REY

DEPENDENT AS TO SANDRA REY

ORDER ADJUDICATING FALY AND JULIETA

MADRID DEPENDENT AS TO SANDRA REY AND

SERGIO MADRID

ORDER TERMINATING PARENTAL RIGHTS

OF SANDRA REY AS TO MARLENE REY, FALY

MADRID AND JULIETA MADRID

21a

Appendix B

ORDER TERMINATING PARENTAL RIGHTS OF

ROSARIO VEGA AS TO MARLENE REY

ORDER TERMINATING PARENTAL RIGHTS

OF SERGIO MADRID CASTO AS TO FALY AND

JULIETA MADRID

The termination and dependency adjudication

hearings of these matters were conducted on December

5, 2017; December 6, 2017; December 8, 2017; and March

9, 2018. Mother and Mr. Sergio Madrid, father to the

children Faly and Julieta, were present and contested both

matters. Following the trial, the Court took the matters

under advisement.

A parent in a termination case has a duty to appear

at all properly noticed proceedings. Mr. Rosario Vega,

father to the child Marlene, failed to appear and such

failures were without good cause. Regardless of whether

the severance is initiated by motion or petition, the

failure to appear shall be treated as a waiver of rights

and an admission of allegations. Marianne N v. DCS, 243

Ariz. 53, 401 P.3d 1002 (2017). This applies whether the

scheduled proceeding was the adjudication of the motion

or petition, or whether the matter was set for pretrial

conference, status conference or any other properly

noticed proceeding. Adrian E. v. Ariz. Dep‘t of Econ. Sec.,

215 Ariz. 96, 101,14, 158 P.3d 225, 230 (App. 2007).

The Court has reviewed the evidence and testimony

provided, the pleadings filed, the arguments of counsel,

applicable law, and the case history. Based thereon, the

22a

Appendix B

Court makes the following findings of fact and conclusions

of law and enters the following orders.

BACKGROUND

Parties

The minor children are Marlene Vega Rey, born

August 13, 2008; Faly Jasmine Madrid, born March 21,

2015; and Julieta Madrid, born March 11, 2017.

The mother of the children is Sandra Holguin Rey,

aka Sandra Rey Holguin, born December 7, 1977, and she

is hereinafter referred to as “Mother.”

The father of the child Marlene is Rosario Vega,

born January 12, 1985, and he is hereinafter referred

to as “Father Vega.” Paternity has been established via

acknowledgment.

The father of the children Faly and Julieta is Sergio

Madrid Castro, born July 10, 1978, and he is hereinafter

referred to as “Father Madrid.” Paternity for both

children has been established via acknowledgment.

The Department of Child Safety is also a party to

these proceedings. It will hereinafter be referred to as

the “Department” or “DCS.”

23a

Appendix B

Initial Referral and Procedural History

This matter most recently1 came to the attention of

the Department and this Court in May 2017, following the

sudden hospital admission of Julieta Madrid. A petition

regarding Julieta’s older sisters, Marlene and Faly, was

filed by DCS on May 9, 2017. When Julieta was released

from the hospital, DCS filed a petition alleging Julieta

was dependent on May 25, 2017. The allegations in both

petitions regarding Mother and Father Madrid are limited

to abuse of Julieta. The parents were properly served.

Father Vega failed to appear in the dependency matter,

and Marlene was adjudicated dependent as to him on

August 28, 2017.

DCS filed a Petition for Termination of Parent-Child

Relationship regarding all aforementioned parents and.

their respective child(ren) on July 5, 2017. All parents have

been properly served. In the interest of judicial economy,

a joint adjudication hearing on both dependency and

termination matters were held simultaneously. The bulk

of evidence was presented in December 2017, during the

first three days of trial. An additional trial day was added

upon the parties’ request, and the matter was taken under

advisement on March 9, 2018.

Thus, the matters currently pending before this Court

are the dependency petitions as to Mother and Father

1. As will be described infra, a previous dependency case

regarding the child Marlene took place in 2011 and 2012. Marlene

was reunified with Mother in 2012 and the case was dismissed.

24a

Appendix B

Madrid in JD 20586, and the Petition for Termination in

JS 19097 as to all parents. The Court will address those

matters in turn.

II. DEPENDENCY PETITION—JD 20586 (Mother

and Father Madrid only)

Based upon the testimony and evidence received by

the Court in this matter, the Court finds it has jurisdiction

over the subject matter of this dependency case pursuant

to A.R.S. § 8-202. Service of the dependency petition

regarding Marlene and Faly was complete as to both

parents on May 11, 2017, and service of the dependency

petition regarding Julieta was complete as to both parents

on June 1, 2017.

A f inding of dependency requires proof by a

preponderance of the evidence. A.R.S. § 844(C)(1). A

dependent child is one who “has no parent or guardian

willing to exercise or capable of exercising such care or

control.” A.R.S. § 8-201(14)(a)(i).

The sole allegation in both dependency petitions

as to each parent is abuse or failure to protect from

abuse. Specifically, DCS alleges that all three children

are dependent because of the abuse by the parent(s) on

Julieta. A child may be found dependent when a parent

is unwilling or unable to protect the child from abuse,

see Pima Cnty. Juv. Action No. J-77188, 139 Ariz. 389,

392 (App. 1983) (“Effective parental care clearly implies

prevention of sexual as well as other physical abuse.”). The

Court must find that a dependency exists at the time of

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Appendix B

the trial, see A.R.S. § 8-201(14)(a)(i) (defining dependent

child as one who “has no parent or guardian willing to

exercise or capable of exercising such care or control”).

See Pima Cnty. Juv. Dependency Action No. 96290, 162

Ariz. 601,604 (App. 1990). However, a dependency finding

is appropriate:

as to parents who presently deny that they are

responsible for past abuse and neglect for the

obvious reason that such denial of responsibility

supports a finding that their children do not

have parents presently willing to or capable of

exercising proper and effective parental care

and control. To hold otherwise would permit

an abusive or neglectful parent to defeat an

allegation of dependency by the mere passage

of time.

Id.

After having the opportunity to assess the credibility of

witnesses and carefully review all the admitted evidence in

this matter, the Court finds that grounds for a dependency

exist as to each parent.

Findings of Fact Regarding Julieta’s Injuries

Mother and Father Madrid testified that Julieta

presented normally until April 24, 2017. Their testimony

indicated Mother was at home with Julieta while Father

worked; Father returned home between six to eight

o’clock in the evening. Mother testified Julieta slept from

26a

Appendix B

5:00 p.m. to 8:00 p.m. At some point in the evening, likely

around 8:45 p.m., according to Father Madrid’s testimony,

Mother breastfed Julieta, who began vomiting. Mother and

Father Madrid testified that, at first, they did not think

much of the vomiting because their other children had

vomited in the past. Julieta vomited again, and Father

eventually went to the store to buy some tea for Julieta.

Father Madrid testified his mother had given him tea

as a child when he was sick. Father Madrid went to the

store shortly before midnight, and Mother called him to

express concern about Julieta’s condition. Father Madrid

returned home, and he and Mother transported Julieta to

an urgent care facility. Julieta’s limbs were becoming stiff.

After waiting at urgent care to be seen by a physician,

the parents were , advised to quickly take Julieta to

Phoenix Children’s Hospital. They did so. At the hospital,

Julieta was assessed and underwent emergency surgery

at 3:45 a.m. on April 25, 2017. Ex. 19, hospital records, at

Bates 1050.

The Court heard from three medical experts in

this case. While the nature of Julieta’s condition when

she presented to the emergency room in April 2017 was

uncontroverted at trial, the cause of her condition was

contested.

Julieta, who was less than two months old when she

was rushed to Phoenix Children’s Hospital on April 25,

2017, suffered from a number of significant injuries. First,

she suffered from a large, subdural hematoma on one side

of her head and another, smaller one on the right side of

her head. She had significant midline shift of the brain,

27a

Appendix B

meaning pressure had caused the brain to move out of

its normal position. She required emergency surgery

to remove the blood clot that was causing the pressure.

During surgery, the child was noted to have bled profusely.

Julieta had retinal hemorrhaging that was severe — she

had bleeding present in every layer of her eyes and all

over each eye. Julieta had no external injuries, such as

bruising, lacerations or abrasions.

The Court heard differing expert opinions on the

etiology of Julieta’s injuries. Two of the physicians

who treated Julieta in April 2017 at Phoenix Children’s

Hospital were called as witnesses by the Department

of Child Safety. The treating physicians testified that

the injuries suffered by Julieta were non-accidental

trauma that had recently been inflicted. The retinal

hemorrhaging was indicative of “massive trauma” caused

by acceleration/deceleration with “significant force,”

according to Dr. Melissa Jones’ testimony. Dr. Ruth

Bristol, the neurosurgeon who performed the emergency

surgery and removed the blood clot from Julieta’s head,

opined that the blood clot was only one or two days old.

She testified that the clot had not been present since birth.

She further opined that the blood clot had been causing

Julieta’s symptoms, including loss of consciousness, loss

of appetite, and vomiting. Dr. Bristol testified that she

could not definitively opine that there was more than one

injury to Julieta. Importantly, the doctors opined that the

injuries were of a recent and sudden nature.

Mother and Father Madrid retained an expert, Dr.

Scheller, who testified that Julieta had suffered a scalp

28a

Appendix B

injury at birth, resulting in a subdural hematoma, and

Julieta’s injuries were complications of that original

hematoma. The basis for his opinion regarding the

hematoma was his review of April 2017 CT scans on

Julieta’s brain, which showed the presence of “old blood”

and “new blood.” He opined that the “old blood” was

between three and six weeks old; therefore, by his own

testimony, it is possible Julieta’s “old blood” was not from

her birth. Dr. Scheller conceded during his testimony

that there was no other medical condition that could have

caused the injuries. He opined that the severe retinal

hemorrhaging to Julieta’s eyes was caused by blood from

the hematoma traveling through the circulatory system.

He further opined that external injuries would have been

present if the child had been abused.

After carefully listening to the medical evidence

and expert opinions in this case, the Court rejects Dr.

Scheller’s opinion. Of critical significance to this Court

are the extent, severity, and location of Julieta’s retinal

hemorrhaging. Julieta’s treating doctors testified that

a subdural hematoma could not have caused the retinal

hemorrhaging observed in Julieta, because the location

of the hemorrhaging and the extent of the hemorrhaging

were not consistent with hemorrhaging caused by a

subdural hematoma. Juliet’s hemorrhaging was not

confined to the back of the eye, as one would expect as a

result of a subdural hematoma. Rather, the hemorrhaging

was present in every layer of the eye, and around the entire

eye. The Court heard there were so many hemorrhages

that the ophthalmologist was unable to count them.

Also, the retinal hemorrhaging quickly resolved, which

29a

Appendix B

indicated the hemorrhaging had recently occurred.

Those injuries were not caused by a hematoma traveling

down the circulatory system, as Dr. Scheller suggested;

those injuries were caused by abuse to Julieta. Julieta’s

treating physicians also credibly testified that subdural

hematomas at birth, while not usual, are not of the size

found in Julieta. Dr. Scheller conceded that Julieta had

suffered trauma to her optic nerve; he opined it was due to

intracranial pressure, but he conceded it was also possible

the nerve damage was due to abuse. The Court finds

the presentation and characteristics of Julieta’s internal

injuries were consistent with abusive head trauma, not a

subdural hematoma as Dr. Scheller opined.

The Court further rejects Dr. Scheller’s testimony that

Julieta would have had to have suffered external injuries

if she were abused. Dr. Jones testified that abusive head

trauma does not necessarily result in external injuries.

For example, if a child is shaken, she may not present with

external injuries, but abusive head trauma may occur.

Dr. Jones testified that the absence of external injuries

to Julieta does not affect her diagnosis of abusive head

trauma. The Court agrees. Dr. Jones further testified

that the parents provided no plausible explanation for

Julieta’s injuries, and medical conditions were ruled out.

Dr. Scheller conceded no other medical condition would

have caused the child’s injuries.

Finally, the Court rejects Dr. Scheller’s testimony

that the child’s “scalp injury” at birth, caput succedaneum,

caused the child’s injuries by leading to a subdural

hematoma. As Dr. Scheller conceded, caput is a common

30a

Appendix B

occurrence in vaginal deliveries it normally resolves

shortly after birth. There is no evidence that Julieta’s

caput did not resolve; the child presented normally at

regular pediatric checks following birth. And, as described

above, Dr. Scheller’s timeframe for the blood on the child’s

CT scan was “between” three and six weeks. According

to Dr. Scheller’s testimony, it is possible the bleeding he

claims was caused during birth trauma did not present

until three weeks later, which would belie his theory that

the hematoma was present at birth. Dr. Scheller also

conceded that the “re-bleed” he claims resulted in Julieta’s

emergency admission to the hospital caused a significant

amount of bleeding. This difference is important, because

he testified that a small amount of ‘’jostling” could have

caused the re-bleed; such a small amount of movement

would not have caused Julieta’s profuse bleeding. The

Court finds a small movement would not account for the

baby’s injuries and symptoms she exhibited on April 24,

2017.

In addition to carefully reviewing the evidence outlined

supra, the Court notes that Mother has previously been

convicted of child abuse. Ex. 8, Mother’s Criminal Case

Records, at Bates 038-039. The conviction stemmed

from an incident in 2011 where Mother left Marlene,

who was two years old at the time, in Mother’s car while

Mother shopped. Id, Ex. 7, Tolleson Police Department

Report. The incident occurred in July, and the outdoor

temperature was approximately 106 degrees. Ex. 7 at

3-4. Mother told police that she decided to leave Marlene

in the car because she did not believe she would be in

the store very long, even though Mother had previously

31a

Appendix B

heard of children dying in hot cars. Id at 4-5. Mother told

police it was easier to leave Marlene in the car than wake

the child up and bring her into the store. Id. at 4. Mother

estimated she had been in the store for twenty minutes.

Id. at 4. Surveillance footage showed she had been inside

for 41 minutes, Id. at 5. Mother told police that she was at

the store to buy a toy and school uniforms; surveillance

footage showed Mother was at the cosmetics counter and

in the bathroom. Id. at 4-5. Mother’s conviction was for

a class 6 undesignated felony, and she was sentenced to

30 days’ incarceration and one year on probation. Ex. 8

at Bates 038-39. Mother was successfully discharged

from probation in 2012, and her felony was designated as

a misdemeanor. Id. at Bates 042-43. In addition, Mother

went through a dependency case with Marlene, which

Mother successfully completed.

At trial, Mother testified that nothing out of the

ordinary had occurred with Julieta before Julieta became

symptomatic on April 24, 2017, other than some sleepiness

at feeding time.2 The Court had the opportunity to observe

Mother throughout these proceedings, and Mother

presented with a completely flat affect at all times. On the

stand, Mother’s affect remained flat, even when describing

the harrowing incidents with Marlene in 2011 and Julieta

in 2017. During his testimony, Father Madrid did not

similarly present; however, his testimony was troubling

in other ways. Although he testified that Mother’s 2011

conviction for child abuse of Marlene concerned him, he

2. Mother admitted that she did not raise any concerns

regarding sleep with Julieta’s pediatrician. She testified Julieta’s

pediatrician noted Julieta was in good health during well checks.

32a

Appendix B

made clear that he remains in a committed relationship

with Mother. He testified that he had asked Mother if

something had happened to Julieta, and Mother responded

in the negative. He denied shaking Julieta, but he and

Mother were the child’s only caregivers in the timeframe

in which Julieta suffered her injuries. Father Madrid

agreed in his testimony that whatever happened to Julieta

had happened suddenly. He provided no explanation for

the child’s injuries and denied engaging in any abusive

conduct. Mother and Father Madrid’s testimony and

conduct in the courtroom, which this Court had the chance

to carefully observe and consider, demonstrated to this

Court that the parents are a “united front” and committed

to each other. Their testimony on key issues, such as what

happened to Julieta, was simply not credible.

After carefully considering the evidence, the Court

finds the only plausible explanation for Julieta’s injuries

is that she suffered non-accidental trauma. The parents

testified they were her only caregivers. They testified

thatno abusive conduct occurred. They denied the child

was dropped or any other accidental trauma occurred.

Mother and Father Madrid’s testimony, however, was

not credible. Their testimony that Julieta was not abused

simply does not conform to the medical evidence.Julieta

was abused while in the parents’ exclusive care. Each

parent either abused Julieta, knew that Julieta had

been abused, or reasonably should have known that

the other parent had abused Julieta due to the timing,

extent, mechanics and presentation of Julieta’s injuries.

Furthermore, Mother and Father Madrid have remained

in their relationship after Julieta was abused. Neither

33a

Appendix B

has shown a willingness to leave the other to protect the

children from the other parent. Thus, both parents have

demonstrated their lack of protective capacities for all

of the children, not only Julieta. Children in Mother and

Father Madrid’s care are at risk for abuse. 3

3. The Court notes that both parents underwent psychological

evaluations, in which the psychologist was asked to opine on the risk

to children in each parent’s care. See Ex. 5, Father’s Psychological

Evaluation, and Ex. 6, Mother’s Psychological Evaluation. For the

reasons below, the Court cannot rely on those evaluations.

The psychologist opined that a child would not be at risk in Father

Madrid’s care. Ex. 5 at Bates 013. However, the psychologist’s opinion

was apparently based on Father Madrid’s “lack of history of placing

children at risk to be neglected, nor neglecting any child.” See id.

The psychologist went on to note that Father Madrid reported that

he was not present when Julieta was taken to the hospital. Id. Father

testified he did not know why the psychologist would have stated

Father Madrid reported he was not present. As noted in this Order,

Father was indeed present when the child became symptomatic.

Finally, the psychologist noted “if anything happened to [Father

Madrid’s] daughter, it is possible that it may have occurred under his

and [Mother’s] care.” Id. The psychologist did not have the benefit of

the medical testimony presented to this Court. The Court has found

that something did indeed happen to Julieta — she was abused in

the exclusive care of Mother and Father Madrid. Consequently, the

Court does not find Father Madrid’s psychological evaluation to

carry any significant weight.

When the same psychologist evaluated Mother, he opined that

a child would not be at risk in Mother’s care. Ex. 6 at Bates 014.

Although he acknowledged Mother’s 2011 incident with Marlene,

the psychologist noted Mother’s denials of harming Julieta and her

consistency in doing so. Id. Mother reported to the psychologist that

she was caring for Julieta but she did not know how Julieta sustained

her injuries. Id. She denied harming Julieta. Id. Again, the Court

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Appendix B

Conclusion as to Dependency

For the foregoing reasons, the Court adjudicates the

three children dependent as to Mother and the children

Faly and Julieta dependent as to Father Madrid.

Regarding disposition, the permanency plan is

severance and adoption; the Court next addresses the

pending termination petition.

III. TERMINATION PETITION — JS 18864 (all parents)

Jurisdiction

The children are and have been physically present

within the State of Arizona through all times relevant to

these proceedings. All requirements of Title 8, Chapter

5, Article 2 have been met. The Court finds that it has

subject matter jurisdiction in this case. A.R.S. § 8-532(A).

This matter is not subject to the Indian Child Welfare Act.

Generally Applicable Law

Parental rights are fundamental, but they are not

absolute or inviolate. Dominique M. v. Dep’t of Child

Safety, 240 Ariz. 96,7, 376 P.3d 699, 700 (App. 2016). As

a matter of law, termination of parental rights may be

does not find the psychologist’s conclusions to carry any significant

weight. The psychologist did not hear the evidence before this Court.

Mother’s claims that Julieta was not abused, while consistent, are

untrue.

35a

Appendix B

ordered only if grounds for termination under A.R.S.

Section 8-533 are established by clear and convincing

evidence. This heightened standard requires a showing

that the grounds are highly probable or reasonably

certain. Kent K. v Bobby M. 210 Ariz. 279, 284-85, ¶ 25,

110 P.3d 1013, 1018-19 (2005).

If the grounds are found to exist, the Court must also

find that the termination of parental rights would be in the

best interests of the child. The burden of proof to establish

that termination is in the best interests of the child is by

a preponderance of evidence. Kent K., 210 Ariz. at 288,

110 P.3d at 1022. In making the best interests finding,

the Court must determine whether the child would either

benefit from the severance or be harmed by maintaining

the parental relationship. Maricopa Cty. Juv. Action No.

JS-500274, 167 Ariz. 1, 6-7, 804 P.2d 730, 735-36 (1990);

Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,

¶ 6, 100 P.3d 943, 945 (App. 2004).

Grounds for Termination and Findings

As provided in A.R.S. § 8-533(B), termination of

parental rights requires establishment of any one of the

enumerated grounds provided by statute. The Department

proceeded under specific sections of the statute. Those

grounds and the Court’s findings are as follows:

Abandonment (A.R.S.. § 8-533(B)(1)) — FATHER VEGA

“Abandonment” is defined in A.R.S. § 8-531(A)(1).

This statute provides that:

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Appendix B

“Abandonment” means the failure of a parent

to provide reasonable support and to maintain

regular contact with the child, including

providing normal supervision. Abandonment

includes a judicial finding that a parent

has made only minimal efforts to support

and communicate with the child. Failure to

maintain a normal parental relationship with

the child without just cause for a period of six

months constitutes prima facie evidence of

abandonment. (Emphasis added.)

There is no bright line formula developed to determine

whether a parent abandoned an existing relationship or

failed to establish a relationship with a child. Matter of

Pima County Juv. Severance Action S-114487, 179 Ariz.

86, 876 P.2d 1121 (1994). It is determined by conduct of the

parent, not by the subjective intent of the parent. Michael

J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 995 P.2d 682

(2000). A parent must act persistently to establish or

maintain the relationship and must “vigorously assert...

legal rights to the extent necessary.” Id. at 250, 686.

In assessing the actions of the parent, the Court should

consider factors such as whether a parent has provided

‘reasonable support,’ ‘maintain[ed] regular contact with

the child and provided ‘normal supervision.”’ Kenneth B.

v. Tina B., 226 Ariz. 33, ¶ 18, 243 P.3d 636 (App. 2010). In

this context, the Court must also consider “whether the

parent has taken steps to establish and strengthen the

emotional bonds linking him or her with the child.” Id.

at 37, 640. Where “only minimal efforts to support and

37a

Appendix B

communicate with the child” are made, the Court may

conclude the child has been abandoned. Id.

In this matter, the evidence establishes that Father

Vega has not had contact with Marlene since this case

began in May 2017. He has sent Marlene no cards, gifts,

or letters in that time period. Likewise, he has provided

no support to Marlene since May 2017. The case manager

credibly testified that she was unaware of Father Vega

having made any efforts, even before this case began,

to parent the child. He has failed to make even minimal

efforts to establish or maintain a normal parent-child

relationship with Marlene.

The Department has presented a prima facie case

of abandonment, demonstrating that Father Vega failed

to maintain a normal parent relationship for a period of

greater than six months without just cause. This showing

by the Department has not been rebutted by Father Vega.

Based upon the foregoing, Father Vega has abandoned

the child. The Department has met its burden of proof as

to this ground for termination against Father Vega.

Abuse (A.R.S.§ 8-533(B)(2)) — MOTHER AND

FATHER MADRID

Termination may be ordered when it is found that a

parent has willfully abused a child or failed to protect

a child from abuse. The abuse contemplated includes

“serious physical or emotional injury or situations in

which the parent knew or reasonably should have known

38a

Appendix B

that a person was abusing ... a child,” but the abuse need

not be “serious.” E.R. v. Department of Child Safety, 237

Ariz. 56, 59, 344 P.3d 842, 845 (App. 2015). Rather, the

Court need only find that the statutory definition of abuse

is shown. Id. That definition, which is found in A.R.S.

§ 8-201(2), is: “the infliction or allowing of physical injury,

impairment of bodily function or disfigurement or the

infliction of or allowing another person to cause serious

emotional damage.” No diagnosis by a medical doctor

or psychologist is required in order to demonstrate this

ground. E.R., 237 Ariz. at 59, 344 P.3d at 845.

There need not be a showing that each child was

abused; rather, such a finding as to any of the children

could formulate a basis to terminate the rights even as

to the other children for whom there is no evidence of

abuse. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76

at 79, 117 P.3d 795 (2005). To support termination on this

basis, there must be sufficient evidence showing a nexus

between the abuse of another child and the risk of such

abuse to the children at issue. Id. at 80.

The Court incorporates by reference its findings of

fact made in Section II of this Order, supra. The Court

specifically finds that the medical records and testimony

provided in this matter demonstrate Julieta suffered

from non-accidental trauma. Mother and Father Madrid

testified that the child had not been abused in their care,

but that simply cannot be true in light of the medical

evidence. The Court did not find their testimony on this

critical point to be credible. Both parents testified they

were the child’s only caregivers, and they testified they

39a

Appendix B

were not the cause of and were unaware of the cause of

Julieta’s injuries. As the child’s only caregivers, they

should be able to identify the child’s abuser. Circumstantial

evidence establishes that Mother or Father Madrid, or

both, intentionally abused Julieta, causing serious injuries.

Mother or Father Madrid, or both, knew or reasonably

should have known that the other abused Julieta, as she

was in their sole care when she suffered life-threatening

injuries.

The Court finds a significant nexus between the

abuse of Julieta and the risk of abuse to Julieta’s siblings.

Julieta was abused while in Mother and Father Madrid’s

home, in their exclusive care. As a result of the abuse she

suffered, Julieta requires a high level of medical care and

around-the-clock monitoring. She has been diagnosed with

cerebral palsy. She is blind. She has four to five seizures

a day, and more when she sleeps. She is undergoing a

significant regimen of occupational therapies to assist her,

and she will require specialized therapies for eating. The

Court has grave concerns about the parents’ protective

capacities in the future. Although they are no longer

infants, Faly and Marlene are young children who are

vulnerable. Marlene has already been the victim of child

abuse by Mother in the past. Mother and Father Madrid

have not been forthcoming about the cause of Julieta’s

injuries. Just as Mother and Father Madrid’s denials

regarding the abuse suffered by Julieta were not credible,

Father Madrid and Mother’s testimony that they would

not harm their other children lacked credibility. After

carefully observing the parents, the Court did not find

Mother and Father Madrid’s assurances that they would

40a

Appendix B

keep all their children safe to be credible. The Court

agrees with the testimony of the DCS case manager that

Faly and Marlene are at risk for abuse by Mother and

Father Madrid.

Based upon the foregoing, the Court finds that the

Department has met its burden of proof as to this ground

for termination against Mother and Father Madrid.

Best Interests

The Court has found that a statutory ground has been

met for termination of parental rights. Parental rights

may not be terminated, however, unless the Court also

finds that termination would be in the best interests of

the children. A.R.S. § 8-533(A). See also In re Appeal in

Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4,

804 P.2d 730, 733 (1990). The burden of proof for a best

interest determination is preponderance of the evidence.

Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345,

350, ¶ 23, 312 P.3d 861, 866 (App. 2013).

To establish that severance of a parent’s rights would

be in the children’s best interest, “the court must find

either that the child[ren] will benefit from termination of

the relationship or that the child[ren] would be harmed

by continuation of the parental relationship.” Mario G. v.

Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 288, ¶ 26, 257 P.3d

1162, 1168 (App. 2011) (quoting James S. v. Ariz. Dep’t of

Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App.

1998)). The existence of a bonded relationship between

the parents and the children does not preclude a finding

41a

Appendix B

that severance is in the best interests of the children.

Dominique M v. Dep’t of Child Safety, 240 Ariz. 96, ¶ 12,

376 P.3d 699, 701 (App. 2016).

To determine whether the children would benefit,

relevant factors considered by this Court consider include

‘’whether the current placement is meeting the child[ren]’s

needs.” Bennigno R., 233 Ariz. at 350, ¶ 23, 312 P.3d at 866

(citing Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz.

102, 107, 876 P.2d 1137, 1142 (1994)). The Court should also

consider whether there is an adoption plan in place and

even if the children are adoptable. Mary Lou C., 207 Ariz.

at 50, ¶ 19, 83 P.3d at 50 (citing JS-500274, 167 Ariz. at 6,

804 P.2d at 735, and Maricopa Cty. Juv. Action No. JS501904, 180 Ariz. at 352, 884 P.2d at 238, respectively). The

Department must only show the children are adoptable;

a specific adoption plan is not required. JS-501904, 180

Ariz. at 352, 884 P.2d at 238. Here, the Court finds from

the evidence presented that if the current case plan for

adoption cannot for any reason move forward, the children

are adoptable.

The children Marlene and Faly are placed together

in a kinship placement, with whom they have a significant

relationship and bond. The placement is adoptive and is

meeting all of the girls’ needs. It is the least restrictive

placement for Marlene and Faly.

Due to the severity of her medical condition and extent

of her needs, Julieta is not placed with a member of her

extended family or with her siblings. Rather, Julieta is

placed in a licensed foster home that is specially trained

42a

Appendix B

to care for medically fragile children. Her placement is

not adoptive. At trial, DCS presented testimony indicating

two possible adoptive placements are being explored for

Julieta. First, Mother and Father Madrid identified a

family friend; this friend would need to complete classes

for caring for a medically fragile child to be considered.

Second, a licensed foster home that has provided respite

care to Julieta’s placement has expressed interest in

adopting Julieta. In accordance with A.R.S. § 8-538(C),

the Court finds that placement with a member of the

children’s extended family is not feasible at this time,

given the need for education regarding medically fragile

children. If the potential family placement completes

the classes, the option would be viable. The DCS case

manager testified that Julieta is an otherwise adoptable

child, even with her medical needs; the Court found that

testimony credible. Given Julieta’s extensive needs and the

above facts, her current placement is the least restrictive

placement. The current placement is meeting Julieta’s

needs, including her many special needs.

The Court finds that severance of parental rights

will benefit the children, because they need a safe home

in which their parents will protect them from abuse. As

detailed, supra, Mother and Father have demonstrated

they cannot or will not protect their children. Further,

the Court finds that the children would suffer a detriment

if parental rights remained intact, because the children

would be at very serious risk for further abuse. Julieta

nearly died due to the abuse she suffered in her parents’

care. She and her siblings remain at risk, given the

parents’ persistent denials that any abuse occurred.

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Appendix B

Based thereon, the Court finds that the Department

has proven by a preponderance of the evidence that it

would be in the minor children’s best interest to have

Mother and Father’s parental rights terminated.

Final Order

Based upon the foregoing,

IT IS ORDERED granting DCS’s Out of Home

Dependency Petition, filed May 9, 2017, regarding Faly

Madrid and Marlene Rey, and DCS’s Out of Home

Dependency Petition, filed May 25, 2017, regarding Julieta

Madrid (JD 33645). The minor children Marlene Vega

Rey, born August 13, 2008, Faly Jasmine Madrid, born

March 21, 2015, and Julieta Madrid, born March 11, 2017,

are adjudicated dependent as to Mother, Sandra Holguin

Rey, aka Sandra Rey Holguin, born December 7, 1977. The

minor children Faly Jasmine Madrid, born March 21, 2015,

and Julieta Madrid, born March 11, 2017, are adjudicated

dependent as to Father, Sergio Madrid Castro, born July

10, 1978. The case plan is severance and adoption.

IT IS ORDERED granting the Petition for Termination

of Parent-Child Relationship filed by DCS on July 5, 2017.

IT IS FURTHER ORDERED terminating the

parent-child relationship between Mother, Sandra

Holguin Rey, aka Sandra Rey Holguin, born December

7, 1977, and the minor children, Marlene Vega Rey, born

August 13, 2008, Faly Jasmine Madrid, born March 21,

2015, and Julieta Madrid, born March 11, 2017.

44a

Appendix B

IT IS FURTHER ORDERED terminating the

parent-child relationship between Father, Rosario Vega,

born January 12, 1985, and the minor child, Marlene Vega

Rey, born August 13, 2008.

IT IS FURTHER ORDERED terminating the

parent-child relationship between Father, Sergio Madrid

Castro, and the minor children, Faly Jasmine Madrid,

born March 21, 2015, and Julieta Madrid, born March

11, 2017.

IT IS FURTHER ORDERED vesting the support

obligation for the child on the Department of Child Safety,

in accordance with A.R.S. § 8-538(D). It is noted that this

order does not terminate the right of inheritance for the

child and the obligation for support from the parents,

which are terminated only upon a final order of adoption.

A.R.S. § 8-539.

Appellate Rights/Withdrawal of Counsel

This is intended to be a final order of the Court. The

parties are advised that an appeal may be taken to the

Arizona Court of Appeals (ARPJC 103-108). A Notice

of Appeal must be filed with the Clerk of the Maricopa

County Superior Court no later than 15 days after this

final order is filed with the Clerk of the Court. Counsel

for any party affected by this ruling shall ensure that the

party is informed of this ruling, is advised as to appeal

rights and obtains authorization from the party to file the

Notice of Appeal, if elected.

45a

Appendix B

Upon expiration of the appeal time, counsel for

Mother and Father Madrid are withdrawn from further

representation and relieved of any further responsibility.

March 20, 2018

DATE

/s/

HONORABLE

ALISON S. BACHUS

46a

AppendixOF

C THE SUPREME

APPENDIX C — ORDER

COURT OF THE STATE OF ARIZONA,

DATED AUGUST 28, 2019

SUPREME COURT

STATE OF ARIZONA

August 28, 2019

ROBERT BRUTINEL

Chief Justice

JANET JOHNSON

Clerk of the Court

RE: SANDRA R./SERGIO C.

DCS/M.R./F.M./J.M.

Arizona Supreme Court No. CV-19-0057-PR

Court of Appeals, Division One No. 1 CA-JV 18-0147

Maricopa County Superior Court No. JD20586

Maricopa County Superior Court No. JS19097

GREETINGS:

The following action was taken by the Supreme Court of

the State of Arizona on August 27, 2019, in regard to the

above-referenced cause:

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Appendix C

ORDERED: Mother’s Petition for Review = GRANTED

as to Issue #1 only.

FURTHER ORDERED: Appellant Sergio C.’s Petition

for Review = GRANTED as to Issue #2 only as

rephrased: Does it violate due process to make the

nexus finding in the best-interests inquiry?

FURTHER ORDERED: The case shall be set for oral

argument.

FU RT H ER ORDERED: The pa r ties may f ile

simultaneous supplemental briefs, not to exceed 20

pages in length, no later than 20 days from the date of

this Court’s Minute Letter. Any amicus briefs are due

on or before September 23, 2019, and any responses to

amicus briefs are due on or before September 30, 2019.

Any amicus briefs or responses may not exceed 20 pages

in length.

Chief Justice Brutinel and Justice Beene did not

participate in the determination of this matter.

Filing of a supplemental brief is permissive rather than

mandatory. This order should not be construed as an

invitation to repeat the contents of the Petition for Review,

the Response, or any Reply. Lack of a supplemental brief

shall not be considered an admission that the position of

the opposing party or parties should prevail.

Counsel shall be advised of the date and time of oral

argument at such time as the hearing date is determined.

48a

Appendix C

The Clerk of the Court of Appeals, Division One, Phoenix,

shall forward the remaining record to the Clerk of the

Supreme Court.

Janet Johnson, Clerk

TO:

John L Popilek

H. Clark Jones

Brunn W Roysden III

Autumn Spritzer

Lindsey H Richardson

Amy M Wood

Hon. Janet E Barton

Hon. Alison Bachus

Hon Jeff Fine

49a

Appendix

APPENDIX

D — RELEVANT

STATUTORY PROVISIONS

A.R.S. § 8-533

§ 8-533. Petition; who may file; grounds

A. Any person or agency that has a legitimate interest

in the welfare of a child, including, but not limited to, a

relative, a foster parent, a physician, the department or a

private licensed child welfare agency, may file a petition for

the termination of the parent-child relationship alleging

grounds contained in subsection B of this section.

B. Evidence sufficient to justify the termination of the

parent-child relationship shall include any one of the

following, and in considering any of the following grounds,

the court shall also consider the best interests of the child:

1. That the parent has abandoned the child.

2. That the parent has neglected or wilfully abused a

child. This 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.

3. That the parent is unable to discharge parental

responsibilities because of mental illness, mental

deficiency or a history of chronic abuse of dangerous

drugs, controlled substances or alcohol and there are

reasonable grounds to believe that the condition will

continue for a prolonged indeterminate period.

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Appendix D

4. That the parent is deprived of civil liberties due

to the conviction of a felony if the felony of which that

parent was convicted is of such nature as to prove the

unfitness of that parent to have future custody and

control of the child, including murder of another child

of the parent, manslaughter of another child of the

parent or aiding or abetting or attempting, conspiring

or soliciting to commit murder or manslaughter of

another child of the parent, or if the sentence of that

parent is of such length that the child will be deprived

of a normal home for a period of years.

5. That the potential father failed to file a paternity

action within thirty days of completion of service of

notice as prescribed in § 8-106, subsection G.

6. That the putative father failed to file a notice of

claim of paternity as prescribed in § 8-106.01.

7. That the parents have relinquished their rights to a

child to an agency or have consented to the adoption.

8. That the child is being cared for in an out-of-home

placement under the supervision of the juvenile court,

the division or a licensed child welfare agency, that the

agency responsible for the care of the child has made

a diligent effort to provide appropriate reunification

services and that one of the following circumstances

exists:

(a) The child has been in an out-of-home placement

for a cumulative total period of nine months

51a

Appendix D

or longer pursuant to court order or voluntary

placement pursuant to § 8-806 and the parent

has substantially neglected or wilfully refused to

remedy the circumstances that cause the child to

be in an out-of-home placement.

(b) The child who is under three years of age has

been in an out-of-home placement for a cumulative

total period of six months or longer pursuant

to court order and the parent has substantially

neglected or wilfully refused to remedy the

circumstances that cause the child to be in an outof-home placement, including refusal to participate

in reunification services offered by the department.

for a cumulative total period of fifteen months

or longer pursuant to court order or voluntary

placement pursuant to § 8-806, the parent has been

unable to remedy the circumstances that cause the

child to be in an out-of-home placement and there is

a substantial likelihood that the parent will not be

capable of exercising proper and effective parental

care and control in the near future.

9. That the identity of the parent is unknown and

continues to be unknown following three months of

diligent efforts to identify and locate the parent.

10. That the parent has had parental rights to another

child terminated within the preceding two years for

the same cause and is currently unable to discharge

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Appendix D

parental responsibilities due to the same cause.

11. That all of the following are true:

(a) The child was cared for in an out-of-home

placement pursuant to court order.

(b) The agency responsible for the care of the

child made diligent efforts to provide appropriate

reunification services.

to the legal custody of the parent from whom the

child had been removed.

(d) Within eighteen months after the child was

returned, pursuant to court order, the child was

removed from that parent’s legal custody, the child

is being cared for in an out-of-home placement

under the supervision of the juvenile court, the

division or a licensed child welfare agency and the

parent is currently unable to discharge parental

responsibilities.

C. Evidence considered by the court pursuant to

subsection B of this section shall include any substantiated

allegations of abuse or neglect committed in another

jurisdiction.

D. In considering the grounds for termination prescribed

in subsection B, paragraph 8 or 11 of this section, the court

shall consider the availability of reunification services to

53a

Appendix D

the parent and the participation of the parent in these

services.

E. In considering the grounds for termination prescribed

in subsection B, paragraph 8 of this section, the court

shall not consider the first sixty days of the initial outof-home placement pursuant to § 8-806 in the cumulative

total period.

F. The failure of an alleged parent who is not the child’s

legal parent to take a test requested by the department

or ordered by the court to determine if the person is

the child’s natural parent is prima facie evidence of

abandonment unless good cause is shown by the alleged

parent for that failure.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.