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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MANUEL M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.M., A.H., S.H., Appellees.

No. 1 CA-JV 14-0232

Appeal from the Superior Court in Maricopa County

N. JD22924

The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix

By Thomas A. Vierling

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in 

which Judge Donn Kessler and Chief Judge Diane M. Johnsen joined.
MANUEL M. v. DCS, et al.

Decision of the Court

2

G E M M I L L, Judge:

¶1 Manuel M. (Father) appeals the juvenile court’s order 

terminating his parent-child relationship with three children, M.M., A.H., 

and S.H., pursuant to Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(1), (2), 

(3), (8)(a), and (8)(b). For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Mendoza and Yvonne H. (Mother) are the biological parents 

of M.M. (born 2004), A.H. (born 2005), and S.H. (born 2012). Mother also 

has children with different fathers, including daughter E.H. (born 1999). 

On July 3, 2012, DCS received a report alleging sexual abuse and neglect by 

Father against E.H. Mother told DCS that Father no longer lived in the 

home, and that the family had not had contact with Father since 2008. 

Further attempts by DCS to speak with Mother and the children were

unsuccessful as Mother did not respond to knocks on the door or cards left 

in the door. On September 17, 2012, when E.H. was 12 years old, DCS 

received another report alleging sexual abuse and neglect by Father against 

her.

¶3 Phoenix Police Detective K.A. investigated E.H.’s allegations 

against Father. E.H. reported two incidents. The first occurred one night 

between October 2010 and April 2011. E.H. told the detective that she had 

felt someone moving her when she was sleeping and when she woke up, 

Father’s hand was inside of her pants, “on her vagina, on her skin.” E.H. 

reported that during this incident, Mother woke up and confronted Father 

about what was going on, and that Father later apologized for what 

happened. The second incident occurred about a year later when Mother 

was at the hospital having a baby. E.H. reported that Father touched her 

breast over her shirt and told her not to tell anyone.1

¶4 As a part of the investigation regarding E.H.’s claims, DCS 

referred Father for a psychosexual evaluation in February 2013. The clinical 

psychologist’s report concluded that Father’s behavior invalidated his test 

results. The report stated that Father was “highly deceptive and 

 

1 E.H. also admitted she had made a false allegation of physical abuse 

against Father in the past. She said she made the allegation because she did 

not want Mother to be with Father because they fight and Father yells at the 

children. Charges were not filed based on that allegation because there was 

no evidence to support the charges.
MANUEL M. v. DCS, et al.

Decision of the Court

3

uncooperative with the testing process.” The clinical psychologist 

recommended that Father attend individual therapy to assess Father for 

any deviant sexual arousal, interests, or preferences. The report also noted 

that there is a history of domestic violence in the home, with Mother once 

stabbing Father. The stabbing allegedly occurred after Mother learned of 

Father having sex with a fourteen year old girl; however, the accuracy of 

this claim is unknown. Father participated in individual counseling 

beginning in May 2013.

¶5 In August 2013, DCS filed a motion for termination of Father’s 

parental rights regarding M.M., A.H., and S.H on the grounds of 

abandonment and willful abuse. DCS later amended its motion for 

termination to allege that the children had been in out-of-home placement 

for nine months. In September 2013, Father began to participate in parentaide services and supervised visitation. In the three-month period from 

October 2013 to December 2013, Father missed two of thirty-two total 

scheduled visitations. Father’s visitations and parent-aide sessions were 

interrupted when Father was taken into custody by immigration officials in 

January 2014. Father remained in custody for two-and-a-half months. 

After his release, Father once attempted to contact DCS by leaving a 

voicemail with the DCS caseworker. The caseworker was unable to 

understand Father’s contact information to call him back. Father never 

contacted DCS again.

¶6 An evidentiary hearing on DCS’s motion to terminate 

Father’s parental rights was held in March and June of 2014. During the 

hearing, a DCS caseworker testified that the three children were in a stable 

placement with their maternal grandfather where they have resided for 

more than 15 months, the longest period of time that they have had a stable 

home. The caseworker also testified that the maternal grandfather is 

committed to adopting the children and if he were not approved, the 

children are otherwise adoptable.

¶7 The juvenile court found that Father willfully abused E.H. so 

as to cause a substantial risk of harm to the health and welfare of M.M., 

A.H., and S.H. See A.R.S. §§ 8-201(2), -533(B)(2). The court also found that 

the children had been in out-of-home placement for nine months and that 

Father had refused to remedy the circumstances causing the out-of-home 

placement. Because the maternal grandfather was committed to adoption 

and providing a safe environment for the children, the court concluded that 

severance was in the children’s best interests. Accordingly, the court

terminated Father’s parental rights regarding M.M., A.H., and S.H. 
MANUEL M. v. DCS, et al.

Decision of the Court

4

¶8 Father timely appealed the juvenile court’s order. This court 

has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution

and A.R.S. § 8-235(A).

DISCUSSION

¶9 A parent’s right to custody of his or her child is fundamental 

but not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 

11–12, 995 P.2d 682, 684 (2000). To terminate the parent-child relationship, 

the juvenile court “must find, by clear and convincing evidence, at least one 

of the statutory grounds set out in [A.R.S.] section 8-533, and also that 

termination is in the best interest of the child.” Id. at 249, ¶ 12, 995 P.2d at 

685. As the trier of fact, the juvenile court is in “the best position to weigh 

the evidence, judge the credibility of the parties, observe the parties, and 

make appropriate factual findings.” In re Pima Cnty. Dependency Action No. 

93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). This court will 

uphold the juvenile court’s termination of parental rights “absent an abuse 

of discretion or unless the court’s findings of fact were clearly erroneous.” 

Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 

750 (App. 1996). 

I. Severance Based on Willful Abuse

¶10 Under A.R.S. § 8-533(B)(2), the juvenile court may sever a 

parent’s rights if “the parent has neglected or willfully abused a child. This 

abuse includes serious physical or emotional injury[.]” This court has 

previously applied § 8-533(B)(2) to terminate parental rights to a child who 

has not been abused when there is proof that the parent abused another 

child. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795, 

798 (App. 2005). The definition of “abuse” under § 8-201(2)(a) includes 

“[i]nflicting or allowing sexual abuse pursuant to § 13-1404, sexual conduct 

with a minor pursuant to § 13-1405,” and “molestation of a child pursuant 

to § 13-1410.” Father argues there was insufficient evidence to support the 

juvenile court’s findings that DCS had proven the abuse ground. We 

disagree and conclude that reasonable evidence in the record supports the 

juvenile court’s finding that Father willfully abused E.H.

¶11 The police report admitted at trial contains E.H.’s account of 

the abuse and molestation. See A.R.S. § 8-237 (“[O]ut of court statements . . 

. of a minor regarding acts of abuse or neglect perpetrated on him are 

admissible for all purposes” in a dependency hearing); see also Ariz. R.P. 
MANUEL M. v. DCS, et al.

Decision of the Court

5

Juv. Ct. 45(E). Regarding the first incident, E.H. stated that Father began 

touching her in her “private part” while she was sleeping. Mother woke up 

and confronted Father about what was going on but did not want to believe 

that Father had been touching E.H. In the second incident detailed in the 

police report, E.H. said that Father told her he had seen her changing

clothes; he then touched one of her breasts on the outside of her clothing. 

In the police report, E.H. stated Mother did not originally believe E.H.’s 

claims that Father had been touching her. According to E.H., Father lied 

when confronted by Mother and stated that E.H. took off her clothes and 

propositioned Father for sex.

¶12 In addition to E.H.’s report, the juvenile court found that 

other evidence and testimony at trial also supported a finding that Father 

abused E.H. This included testimony from the investigating officer and a 

child safety specialist with DCS, a psychological evaluation of Father, 

medical records of E.H., and a police report. Father’s psychological 

evaluation concluded that Father has cognitive distortions related to the 

incident in which E.H. allegedly took her clothes off in front of him. It also 

stated that Father appears to have more than a moderate degree of risk of 

sexual offending. The evaluation recommended that Father be referred to 

an individual therapist skilled in the treatment of sexual offending 

behavior, with a focus on assessing Father for any deviant sexual arousal or 

interests.

¶13 The juvenile court found E.H.’s report that Father sexually 

abused her on “multiple occasions” to be credible and that it supported a 

finding of willful abuse. The results of the psychological evaluation also 

support a finding that Father posed a continuing risk of such abuse. We 

conclude this evidence is sufficient to support the court’s finding that 

willful abuse occurred. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 

282, ¶ 12, 53 P.3d 203, 207 (App. 2002) (explaining that this court will not 

reweigh the evidence on appeal but instead defers to the trial court’s 

findings unless they are clearly erroneous.) Additionally, we disagree with 

Father’s argument that because there was no evidence of serious physical 

harm to E.H., the juvenile court therefore shifted the burden of proof to 

Father. The evidence permitted the juvenile court to find willful abuse by 

Father of E.H. and the burden of proof remained on DCS. 

II. Constitutional Nexus

¶14 Under A.R.S. § 8-533(B)(2), a finding of substantial abuse as to 

one child permits termination of parental rights to a different child only if 
MANUEL M. v. DCS, et al.

Decision of the Court

6

there is a “constitutional nexus” between the prior incident and the risk of 

future abuse. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285–86, ¶

16, 257 P.3d 1162, 1165–66 (App. 2011). In Mario G., for example, this court 

upheld the juvenile court’s order terminating the father’s parental rights to 

his biological son and daughter based on the father’s abuse of mother’s 

child from a prior relationship. Id. at 283, ¶ 2, 287, ¶ 20, 257 P.3d at 1163, 

1167. This court found that father’s parental rights to his biological 

daughter could be terminated even though she was born after the abuse of 

a different child. A sufficient nexus existed between the past and potential 

future abuse because the father and mother still lived together, the injuries 

were severe, the injuries occurred on three separate occasions over a oneyear period, and the physical abuse occurred within three years prior to 

removal of the child from the father’s care. Id. at 286–87, ¶¶ 19–20, 257 P.3d 

at 1166–67. 

¶15 Under the standard set forth in Mario G., we agree with the 

juvenile court that a sufficient constitutional nexus is present in this case. 

Sexual molestation is a severe injury and the two incidents involving E.H. 

occurred over a one-year period when E.H. was 12 years old. The juvenile 

court found that Father treated E.H. as his own child and, because of the 

incidents involving E.H., all of Father’s biological children, now 10, 9, and 

3 years old, are at an ongoing risk of abuse. The evidence of abuse to an 

unrelated child in this case is sufficient to support the termination of 

parental rights to Father’s biological children.2

III. Best Interests Findings 

¶16 Finally, Father contends that the juvenile court erred in 

finding that severance was in the best interests of the children, arguing that

in so doing, it failed to consider the length and strength of his existing 

relationship with the children. In determining whether termination is in 

the children’s best interests, the juvenile court should consider whether an 

adoptive placement that meets the needs of the children is immediately 

 

2 Because we find that the court did not err in terminating Father’s rights 

on the basis of willful abuse, we need not reach the question of whether the 

court was correct in finding that Father willfully refused to remedy the 

circumstances leading to out-of-home placement. See Michael J. v. Ariz. 

Dept. of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000) 

(explaining that if one ground for severance is proven by clear and 

convincing evidence, “we need not consider whether the trial court’s 

findings justified severance on the other grounds” considered by the court). 
MANUEL M. v. DCS, et al.

Decision of the Court

7

available and whether the children are adoptable. Raymond F. v. Ariz. Dep’t 

of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). The 

Department must also prove how the children would either benefit from 

severance or be harmed if the parental relationship was continued. Id. 

¶17 We disagree with Father’s argument. The court specifically 

found the children were adoptable and that their maternal grandfather was 

committed to adoption. It also found that the maternal grandfather was 

providing a safe and stable home for the children. Even if the maternal 

grandfather is not able to adopt, as Father contends may be the case, the 

court further noted that the children were otherwise adoptable. The court 

also ruled that keeping Father’s parental rights intact would pose a risk of 

harm to the children because of Father’s prolonged and repeated abuse of 

E.H. Accordingly, sufficient evidence supports the juvenile court’s finding

that termination of Father’s parental rights was in the best interests of the 

children. The court did not err. 

CONCLUSION

¶18 For these reasons, we affirm the severance of Father’s 

parental rights regarding M.M., A.H., and S.H.