NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ROSABELLE P., ARTEM D., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, Y.D., Y.D., Appellees.

Nos. 1 CA-JV 14-0271, 1 CA-JV 14-0272 (Consolidated)

Appeal from the Superior Court in Maricopa County

Nos. JS507490, JD510937

The Honorable Brian K. Ishikawa, Judge (Retired)

AFFIRMED

COUNSEL

Jeffrey M. Zurbriggen, P.C., Phoenix

By Jeffrey M. Zurbriggen

Counsel for Appellant Rosabelle P.
2

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant Artem D.

Arizona Attorney General’s Office, Mesa

By Eric Knobloch

Counsel for Appellee Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix

By Linda Ann Christian

Counsel for Appellees Y.D. and Y.D.

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Maurice Portley joined.

N O R I S, Judge:

¶1 Rosabelle P. (“Mother”) and Artem D. (“Father”) separately 

appeal from orders entered by the juvenile court adjudicating their children 

Y.D. (“infant”) and Y.D. (“toddler”) dependent, and terminating their 

parental rights. See generally, Ariz. Rev. Stat. (“A.R.S.”) §§ 8-844 (2014), 8-

533(B)(2) (Supp. 2014).

1 For the following reasons, we affirm the juvenile 

court’s orders.

2

 

1Although the Arizona Legislature amended certain statutes 

cited in this decision after the Department of Child Safety removed the 

children from the home, the amendments are immaterial to the resolution 

of this appeal. Thus, we cite to the current version of these statutes.

2Because the basis for the juvenile court’s termination of 

Mother’s and Father’s parental rights was the same for finding the children 

dependent, and because we are affirming the juvenile court’s termination 

order, the dependency appeal is moot. And, even if not moot, the evidence 

presented amply supported the juvenile court’s dependency order, which 

relied on the same evidence as its termination order. 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

3

FACTS AND PROCEDURAL BACKGROUND

¶2 On March 23, 2013, one month after his birth, Mother called 

911 after Father noticed swelling and a “crackle” in infant’s leg. Paramedics 

responded, examined infant, and found nothing abnormal. The 

paramedics offered to transport infant to the hospital for x-rays but Mother 

and Father refused their offer. The following day, after Mother and Father 

noticed the swelling on infant’s leg was worse, they took him to the 

hospital. Hospital staff x-rayed infant and diagnosed him with multiple 

fractures to his left and right legs. Hospital staff also noticed a facial bruise 

and contacted authorities to investigate suspected child abuse. A child 

abuse pediatrician diagnosed infant’s injuries as “non-accidental trauma.”

¶3 On March 28, 2013, the Department of Child Safety (“DCS”) 

filed a dependency petition and on April 25, 2013 petitioned to terminate 

Mother’s and Father’s parental rights to the children. The juvenile court 

conducted a six-day hearing on both petitions. It found the children 

dependent and terminated Mother’s and Father’s parental rights pursuant 

to A.R.S. § 8-533(B)(2), finding they had “willfully abused a child or failed 

to protect a child from willful abuse so as to cause a substantial risk of harm 

to the child’s health or welfare.” 

DISCUSSION

I. Sufficiency of the Evidence: Child Abuse

¶4 Mother and Father first argue DCS failed to present sufficient 

evidence to terminate their parental rights under A.R.S. § 8-533(B)(2). We 

disagree. To terminate parental rights based on willful abuse under § 8-

533(B)(2), DCS was required to prove by clear and convincing evidence that 

Mother and Father “willfully abused a child.” See Ariz. R.P. Juv. Ct. 66(C). 

Willful abuse includes serious physical injury or “situations in which the 

parent knew or reasonably should have known that a person was abusing

. . . a child.” A.R.S. § 8-533(B)(2).

¶5 Absent an abuse of discretion, this court will affirm the 

juvenile court’s termination order. E.R. v. Dep’t of Child Safety, 237 Ariz. 56,

__, ¶ 9, 344 P.3d 842, 844 (App. 2015). As the trier of fact, the juvenile court 

is best positioned to observe the witnesses, assess credibility, and weigh the 

evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 

296, 303 (App. 2009). “Accordingly, we view the evidence and reasonable 

inferences to be drawn from it in the light most favorable to sustaining the 

court’s decision . . . and . . . we will affirm a termination order unless we 

must say as a matter of law that no one could reasonably find the evidence 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

4

supporting statutory grounds for termination to be clear and convincing.” 

Id. (citations omitted) (internal quotation marks omitted). 

¶6 Here, DCS presented reasonable evidence supporting the 

juvenile court’s finding infant had been abused. During the hearing, Dr. 

Q—a child abuse pediatrician who had examined infant the day after his 

hospital admission—testified extensively about her conclusion infant’s 

injuries resulted from “non-accidental trauma.” She testified that at first, 

only three of infant’s four fractures were detected, but subsequent imaging 

revealed the fourth. She stated the “most likely” explanation for the missed 

fracture was the fractures occurred at—and so began healing at—different

times. She also explained more recent fractures do not appear in x-rays 

until they begin to heal. 

¶7 Dr. Q testified infant’s fractures occurred because a 

“significant force [was] applied” and could have been caused by forcefully

shaking, pulling, turning, or twisting his foot, or a “shearing motion.” The 

spiral fracture on infant’s left leg should have caused “significant pain and 

swelling for the first few days” because of the location and size of the 

fracture, whereas the remaining fractures on infant’s legs were more subtle, 

and outward symptoms might not have been noticed. Based on the x-rays, 

however, Dr. Q opined that all the fractures occurred within seven to 10 

days of March 24, 2013, when the x-rays were taken3 (“abuse period”). 

¶8 Parents’ expert, Dr. E, agreed with Dr. Q that it would take a 

“fairly significant” force such as a “rapid twist” or “shaking a limb” to cause 

infant’s fractures and also agreed the fractures could have happened at 

different times. 

¶9 Despite Dr. Q’s testimony that infant’s facial bruise was an 

injury caused by “blunt force trauma,” Mother testified infant’s bruise was 

caused by falling asleep on his pacifier. Mother and Father also suggested 

that a bone disorder contributed to infant’s fractures. Medical testing, 

however, revealed no metabolic or genetic bone disorders.

¶10 Dr. Q also testified infant could not have sustained the 

injuries on his own because he was less than 30 days old and therefore non-

 

3Parents’ expert, Dr. E, initially agreed with Dr. Q that infant’s 

fractures would have had to occur within 10 days of the x-rays. He later

testified, however, that generally pediatric bones begin calcifying within 10 

to 12 days after fracturing and suggested the fractures could have been up 

to 14 days old. 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

5

ambulatory when the injuries occurred. She similarly testified toddler, who 

was approximately 18 months old when infant was injured, was not strong 

enough to cause infant’s injuries. After reviewing all the records, Dr. E

agreed with Dr. Q that child abuse “would be [the] most common cause” of 

infant’s injuries. 

¶11 Based on the foregoing, DCS presented reasonable evidence 

supporting the juvenile court’s finding that infant had been willfully

abused. DCS also presented reasonable evidence supporting the juvenile 

court’s finding that, while infant was in the care of Mother and Father, they

had willfully abused him or “knew or reasonably should have known that 

such abuse against the child was occurring due to the extent, mechanics, 

timing and circumstances of the child’s injuries.” 

¶12 From the beginning of DCS’s investigation through the 

hearing, Mother and Father consistently denied any responsibility for 

causing infant’s injuries and disclaimed any first-hand knowledge of how 

he had been injured or who had injured him. Instead, they suggested that 

other people could have caused infant’s injuries. For example, the day after 

taking infant to the hospital, Mother and Father told hospital staff the rabbi 

who conducted infant’s circumcision, the pediatrician at his newborn 

checkup, or the hospital staff who drew blood and performed x-rays may 

have injured infant. 

¶13 With the exception of hospital staff, however, these 

individuals did not have contact with infant during the abuse period. See 

supra ¶ 7. And, the hospital staff could not have injured infant’s leg because 

his leg began to swell before Mother and Father brought him to the hospital.

Indeed, during the 911 call, Mother stated, “My husband’s telling me that 

he hears a crackle in my son’s . . . leg and . . . his ankle is a little more 

swollen” than the other. She went on to say, “I mean, cause the thing is that 

he wouldn’t fall asleep if he has, you know, a broken leg or something, 

right?” Dr. Q additionally testified she had never seen a single fracture 

result from a blood draw or x-ray, let alone four separate fractures, making 

the allegations against hospital staff implausible.4 

 

4During the hearing, Mother conceded the rabbi could not 

have broken infant’s legs because the circumcision “would not fit within 

the time frame of the fractures.” She also acknowledged infant did not have 

a bone disorder.
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

6

¶14 DCS case manager K.H. testified it was important for DCS to 

receive “accurate information” regarding infant’s injuries so it could “assist 

the parents in correcting the situation.” Yet Mother and Father did not 

provide DCS with a list of people who had contact with infant until, at the 

earliest, February 2014—more than 10 months after DCS filed its 

dependency petition.

5 During the hearing, Mother named 16 individuals 

who were “around” infant before his hospitalization, and said there were 

several others “from the community” who came to her home. Nevertheless, 

despite the severity of infant’s injuries, Mother never provided any of these 

names to the police, claiming they “never asked.” 

¶15 Further, Mother made conflicting statements regarding 

whether others had taken care of the children within the abuse period. At 

first, she told a police detective that no one had helped her take care of the 

children. Specifically, during an interview conducted two weeks after DCS 

had removed the children, the detective asked Mother, “Who else is helping 

take care of the kids? Anybody else?” to which Mother replied, “No.” The 

detective then clarified, “So you have nobody else that’s helping take care 

of your kids?” and Mother replied, “It’s just me and my husband.” In 

contrast to her statements to the detective, however, during the hearing,

Mother, who cared for both children while Father worked, testified her 

father and brother would “frequently” babysit “for an hour, two hours, 

sometimes three.”6

¶16 As the foregoing reflects, Mother testified inconsistently 

regarding who could have abused infant. Under the version Mother told 

to police, only she and Father had care, custody, and control of infant. As 

Dr. Q testified, there was no possibility infant sustained these injuries on 

his own. Infant had no bone disorders, and a “significant force” was 

required to cause the fractures. Under the version Mother and Father

principally presented at the hearing, see supra ¶¶ 14-15, other individuals 

could have caused infant’s injuries. Mother, however, only testified 

generally about these other individuals; with one exception, see supra ¶ 15 

 

5K.H. testified she did not recall receiving a list of names of 

individuals who had contact with infant until approximately two to three 

weeks before the hearing.

6Mother testified a lot of “people from the community” had 

contact with infant during the abuse period, and she described one incident 

involving a family friend on March 23, 2013—the day Mother called 911. 

Based on Dr. Q’s testimony, however, that incident could not fully explain 

infant’s injuries. See supra ¶¶ 6-7. 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

7

n.6, she provided no evidence these other individuals did anything to harm 

infant. 

¶17 Although the juvenile court did not explicitly state which 

version of events it accepted, it implicitly rejected the version Mother and 

Father presented at trial, finding they had been unable to provide an 

“adequate explanation” for infant’s injuries, and either willfully abused 

infant or “knew or reasonably should have known” infant was being

abused because of the “extent,” (infant suffered multiple fractures, possibly 

at different times, and bruising) “mechanics,” (a significant force caused 

infant’s fractures) “timing,” (the fractures occurred within the abuse 

period) and “circumstances” of infant’s injuries (Mother’s original 

statement to police that only she and Father had cared for infant). The court 

did not abuse its discretion in making these findings and in terminating 

Mother’s and Father’s parental rights under A.R.S. § 8-533(B)(2).

II. Best Interests

¶18 Mother and Father next argue DCS failed to prove

termination was in the children’s best interests. A juvenile court must find, 

by a preponderance of the evidence, Kent K. v. Bobby M., 210 Ariz. 279, 288,

¶ 42, 110 P.3d 1013, 1022 (2008), that termination of parental rights is in the 

child’s best interests; specifically, how the child “would benefit from a 

severance or be harmed by the continuation of the relationship.” Maricopa 

Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (App. 1990); 

see also A.R.S. § 8-533(B) (juvenile court shall consider best interests in 

addition to statutory termination ground). We review a best interests 

decision for an abuse of discretion, see supra ¶ 5, and will not reverse the 

juvenile court’s decision if there is reasonable evidence to support it. Jordan 

C., 223 Ariz. at 93, ¶ 18, 219 P.3d at 303. The juvenile court found DCS had 

shown by a preponderance of the evidence that termination was in the 

children’s best interests because “continuation in the care, custody and 

control of parents” would have exposed the children to abuse and because 

the children were “adoptable.”

¶19 DCS presented reasonable evidence supporting the juvenile 

court’s findings. First, as the DCS case manager K.H. essentially testified, 

given the unexplained abuse suffered by infant while in the care of Mother 

and Father, the children were at risk of abuse if left in their continued care. 

And, as she explained, DCS had been unable to “identify” the parents as 

safe and appropriate. Second, based on K.H.’s testimony, the court found

termination would provide the children with “permanence and stability” 

because their paternal grandmother was “willing to adopt them and [could]
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

8

provide the children with all of their physical, emotional, educational, 

medical and social needs.”

III. Termination of Mother’s Parental Rights to Toddler

¶20 Mother separately argues the juvenile court made no factual 

findings regarding toddler, and, relatedly, DCS failed to present any

evidence to support terminating her parental rights to toddler. We disagree

with both arguments.

¶21 The juvenile court terminated Mother’s and Father’s parental 

rights to toddler based on willful abuse of a child. See A.R.S. § 8-533(B)(2). 

In Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶¶ 15-16, 257 P.3d 

1162, 1165 (App. 2011), this court held a juvenile court may terminate 

parental rights to a child who has not been abused when DCS proves a 

sufficient nexus between the past child abuse and the potential for future 

abuse. One child’s unexplained injuries may be a sufficient nexus for 

terminating parental rights to a different child, especially when the parents 

know or reasonably should have known the cause of the injuries. Id. at 288, 

¶ 25, 257 P.3d at 1168.

¶22 Here, as in Mario G., the juvenile court found Mother “knew 

or reasonably should have known” infant was being abused. Like the 

parents in Mario G., Mother and Father were unable to provide a plausible 

explanation for infant’s injuries, and DCS could not rule out either parent 

as the perpetrator of the abuse against infant.

¶23 During the hearing, Mother conceded infant’s injuries had 

been caused by abuse, however she continued to assert that she and Father 

had kept infant “safe” despite his injuries. Given the numerous, 

implausible suggestions offered by Mother and Father as to how infant 

sustained the fractures and bruising, see supra ¶¶ 9, 12-14, the juvenile court 

concluded a nexus existed between infant and toddler because “parents 

[were] so entrenched in denying responsibility for the abuse, it would

[have] put both children at risk of future abuse by parents if returned to 

their care.” Reasonable evidence supports this finding.

IV. Delay in Proceedings

¶24 Mother next argues the juvenile court failed to “address the 

extreme delays in the adjudication of the dependency and termination 

cases.” As discussed, the juvenile court conducted the dependency 

adjudication hearing jointly with the termination adjudication hearing

beginning on June 16, 2014—more than one year after DCS filed its 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

9

petitions. Arizona Rules of Procedure for the Juvenile Court 55(B) and 66(B) 

prescribe time limits for conducting dependency and termination 

adjudication hearings. These rules, however, authorize the juvenile court 

to continue dependency and termination adjudication hearings upon a 

written finding of extraordinary circumstances. 

¶25 Although the hearing occurred outside of the time limits 

prescribed by Rules 55(B) and 66(B), the record reflects, first, that the 

juvenile court addressed the delays, second, in large part Mother and Father

caused the delays, and third, the juvenile court did not abuse its discretion

in granting the continuances. See Kimberly D.-D. v. Ariz. Dep’t of Econ. Sec., 

234 Ariz. 207, 208, ¶ 5, 320 P.3d 823, 824 (App. 2013) (juvenile court’s 

decision to grant continuance reviewed for abuse of discretion).

¶26 On April 22, 2013, three days before DCS filed the termination 

petition, Father’s counsel moved to withdraw and requested the juvenile 

court determine the appropriateness of Mother’s counsel because Mother’s 

attorney represented both Mother and Father in an ongoing criminal case 

and represented only Mother in the dependency proceeding. On May 22, 

2013, the juvenile court relieved Father’s counsel of further responsibility in 

the case, took the motion to determine appropriateness of counsel under 

advisement, and continued the hearing, finding extraordinary 

circumstances.

¶27 On October 9, 2013, Father, with Mother’s agreement, moved 

to continue the hearing because disclosure was still in progress, Father had 

not yet undergone his psychological evaluation, and genetic testing needed 

to be scheduled. During an October status conference the juvenile court 

again found extraordinary circumstances and continued the hearing. 

During that same status conference Father’s attorney advised the juvenile 

court of a potential conflict of interest due to his professional and personal 

relationship with the children’s placement. At a November status 

conference the court addressed Father’s counsel’s conflict and found the 

conflict could not be waived and extraordinary circumstances warranted

an additional continuance. 

¶28 During a January 2014 status conference the court set the 

dates for the hearing beginning in June and made its final written finding 

of extraordinary circumstances. In its termination order, the juvenile court 

stated adjudication of the dependency and termination petitions was 

“protracted due to extraordinary circumstances including issues related to 

the change in attorneys, language needs/interpreters, discovery, witnesses, 

and scheduling.” 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

10

¶29 The record amply supports this statement. Accordingly, the 

juvenile court acted within its discretion in continuing the dependency and 

termination adjudication hearing.

V. Mother’s Fifth Amendment Rights

¶30 Mother also argues she was “unable to assert her Fifth 

Amendment privilege in the initial stages of [the] dependency matter and 

was demanded by [DCS] to explain what happened to her child” and that 

she “was forced to either incriminate herself or come up with a reasonable 

explanation of what happened to her child.” Putting aside Mother’s failure 

to raise this issue in the juvenile court, the record does not support her 

arguments.

¶31 First, Mother testified she “was not allowed to” speak about 

the case with DCS’s investigating case manager and was told “we’re not 

going to be talking about the case right now. We’re going to be talking 

about a case plan” because of an open police investigation. DCS’s initial 

court report dated March 29, 2013 also states, “Parents were not 

interviewed by [DCS] about the allegations in order to preserve the 

integrity of the open police investigation.” Therefore, the record 

contradicts Mother’s argument she was unable to assert her Fifth 

Amendment privilege in the initial stages of the dependency proceeding.

¶32 Second, Mother was not compelled to testify during the 

hearing. This court has held that merely facing “difficult choices” does not 

necessarily implicate the Fifth Amendment. Minh T. v. Ariz. Dep’t of Econ. 

Sec., 202 Ariz. 76, 80, ¶ 16, 41 P.3d 614, 618 (App. 2001). Mother decided to 

testify at the hearing, and any difficult choices she faced as to the content of 

her testimony was “a consequence of [her] actions.” Id. Mother was also 

not required to “incriminate herself” during the hearing. Indeed, she did 

not do so. The testimony she gave was largely consistent with her earlier 

accounts to police and DCS. The juvenile court simply found her testimony 

not credible. We therefore reject Mother’s arguments.

VI. Participation in Services 

¶33 Mother next argues the juvenile court failed to consider her 

participation in services as a mitigating factor because it did not “mention” 

her participation in supervised visits and a psychological evaluation, and 

so it must not have considered her participation, “despite mandatory law 

to the contrary.” See A.R.S. § 8-844(B) (2014) (court shall consider parent’s 

efforts to obtain and participate in services). The juvenile court, however, 

explicitly stated it had “heard, considered and weighed all of the testimony 
ROSABELLE P., ARTEM D. v. DCS, et al.

Decision of the Court

11

and . . . Exhibit 14 (Case Aide Notes [from supervised visitations]); Exhibit 

15 (Case Aide Notes [from supervised visitations] dated 08-01-13 – 11-28-

13); [and] Exhibit 16 (Psychological Evaluation for Mother . . .).” During the 

hearing, the psychologist who performed Mother’s evaluation, case 

manager K.H., and Mother herself discussed Mother’s participation in 

services. Mother’s argument is, therefore, not supported by the record.

VII. Definition of Abuse

¶34 Finally, Mother argues the juvenile court “improperly grafted 

the definition of abuse under A.R.S. §8-201 into the definition of abuse 

under A.R.S. §8-533(B)(2).” We reject this argument.

¶35 Mother’s argument assumes that because the juvenile court 

cited A.R.S. § 8-201(2) (Supp. 2014) in its termination order, it necessarily 

found abuse under a “more easily met standard.” Quoting A.R.S. § 8-

533(B)(2), however, the juvenile court found Mother had “willfully abused 

a child” or failed to protect a child from willful abuse; infant sustained

“serious physical” injuries; and Mother “knew or reasonably should have 

known” that such abuse against the child was occurring. Thus, the juvenile 

court terminated Mother’s parental rights pursuant to the governing 

statute. 

CONCLUSION

¶36 For the foregoing reasons, we affirm the juvenile court’s 

orders adjudicating infant and toddler dependent as to Mother and Father, 

and terminating their parental rights to the children.