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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLINT H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, X.H., X.H., Appellees.

No. 1 CA-JV 20-0352 

Appeal from the Superior Court in Maricopa County

No. JD 39247

JS 20498

The Honorable Christopher T. Whitten, Judge

AFFIRMED

COUNSEL

John L. Popilek, Scottsdale

Counsel for Appellant

Arizona Attorney General’s Office, Tucson 

By Autumn Spritzer

Counsel for Appellee, Department of Child Safety

FILED 8-31-2021
CLINT H. v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Clint H. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to his sons, L.H., born in 2018, and I.H.,

1

born in 2019. Because reasonable evidence supports the order, we affirm. 

BACKGROUND

¶2 Father and Illana J. (“Mother”) are the biological parents of 

I.H. and L.H. Mother is not a party to this appeal. The Department of Child 

Services (“DCS”) first became involved in March 2020, when Father and 

Mother (collectively “Parents”) brought I.H. to Phoenix Children’s Hospital

due to a swollen head and seizures. 

¶3 While at the hospital, Mother disclosed that I.H. had a history 

of breathing problems. She and Father identified five instances in early 

2020 when the child had difficulty breathing, including the March incident. 

Mother reported she thought the child had died during one of those 

episodes. During the March incident, I.H. turned blue and Mother called 

Father at work to tell him what happened. Father drove home and took

Mother and I.H. to the hospital. Due to the hospital’s COVID-19 

procedures, only one parent was allowed in the building with I.H., so

Father waited outside. A doctor and a nurse practitioner determined I.H.

had many injuries, including: a large skull fracture, evidence of two 

separate brain bleeds, a history of potential seizures (the breathing 

episodes), evidence that his arm had been previously broken in two places, 

ear bruising, and a torn upper frenulum. 

¶4 The “frenulum” is a piece of connective tissue that extends 

from the inside surface of the upper lip to the upper portion of the gum on 

the top part of the jaw. A doctor who treated I.H. explained that a torn 

1 Because the children’s first names begin with the same letter, we 

distinguish them by their middle initials.
CLINT H. v. DCS, et al.

Decision of the Court

3

frenulum is highly suggestive of abuse because it does not tear without 

severe force. 

¶5 I.H. was also severely malnourished and dropped from the 

70th percentile for weight to less than the first percentile for weight, gaining 

only a third of a pound in 19 weeks. Medical staff described the child as so 

thin that he had loose skin around his body, protruding bones, and a visibly 

swollen head. A nurse practitioner also noted I.H. had injuries usually 

present with traumatic brain injuries and common with abuse including, 

thrombosed bridging veins, cervical ligament swelling, and a nasal 

hematoma. Hospital staff contacted the police, and an officer arrived after 

Mother left. Police then went to Parents’ home to execute a search warrant.

Mother claimed I.H.’s injuries resulted from falling off a bed a few days 

earlier.

¶6 I.H. had been born four months premature and spent the first 

“two to three months” of his life at the hospital. After he was released,

Parents soon stopped taking I.H. to his appointments because they felt the 

hospital staff did not respect their decisions regarding the child. A nurse 

practitioner reported that I.H. was given pear juice, water, and baby food

starting at seven months of age (adjusted age of three months) instead of 

formula. Once I.H. received formula, he began gaining weight. 

¶7 In connection with the March incident, medical staff also 

evaluated L.H. and discovered his growth rate had slowed significantly. In 

just five months, L.H. dropped from the 95-97th to the 75-80th percentile in 

weight and gained only one pound five ounces, which is considered 

extremely slow for a 19-month-old child.

¶8 After DCS took custody of both children, I.H. was released 

from the hospital and DCS filed a dependency petition. About a month 

later, DCS petitioned for termination, alleging Father either willfully 

abused and neglected the children or failed to protect them from abuse and 

neglect. The court held a consolidated dependency/termination hearing 

over the course of three days, hearing testimony from numerous witnesses, 

including a detective, hospital social worker, DCS contracted case worker, 

doctor, nurse practitioner, hospital dietician, and the Parents. The juvenile 

court granted the dependency petition and the termination petition, finding 

“clear and convincing evidence that [I.H.] was abused and neglected by his 

parents, or that they were aware of the abuse and neglect and failed to 

protect him.” The court also found clear and convincing evidence that L.H. 

would be at risk of future harm. Father timely appealed and we have 

jurisdiction under A.R.S. § 8-235(A).
CLINT H. v. DCS, et al.

Decision of the Court

4

DISCUSSION

¶9 To terminate parental rights, a court must find (1) by clear and 

convincing evidence that at least one statutory ground in A.R.S. § 8–533 has 

been proven, and (2) by a preponderance of the evidence that termination 

is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 

282, 286, ¶ 15 (App. 2016). We will affirm an order terminating parental 

rights so long as reasonable evidence supports the order. Jordan C. v. Ariz. 

Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). “The juvenile court, as 

the trier of fact in a termination proceeding, is in the best position to weigh 

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

make appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 

278, 280, ¶ 4 (App. 2002).

¶10 When seeking termination based on abuse or neglect, DCS 

must prove a 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.” A.R.S. § 8–533(B)(2).

¶11 Father argues I.H.’s injuries were not the result of any 

intentional or willful abuse; at most, there were issues with the care of a 

complicated child that could have been easily resolved through additional 

training. Father is essentially asking us to reweigh the evidence, which we 

will not do. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018) 

(citations omitted) (“The resolution of conflicting evidence is ‘uniquely the 

province of the juvenile court’ . . . even when ‘sharply disputed’ facts 

exist.”). According to medical staff who examined I.H., he was so thin that 

“you could see his bones,” he had loose skin, he was cachectic (muscle 

wasting), and his head was visibly swollen. The doctor and nurse

practitioner both testified that I.H.’s prematurity would not explain any of 

the injuries. The juvenile court found that Parents had either abused and 

neglected I.H., or they were aware of the abuse and neglect but refused to 

protect him. The evidence supports this finding, and the court did not err 

in determining that the injuries were not attributable to I.H.’s premature 

birth.

¶12 Father also contends DCS failed to prove neglect or abuse 

because he was not the primary caretaker and was away from the home at 

work during most of the breathing episodes and when I.H. fell off the bed. 

Father suggests he could not have reasonably been expected to know I.H. 

needed medical care. 
CLINT H. v. DCS, et al.

Decision of the Court

5

¶13 Both children, however, were in the sole care of Mother and 

Father. DCS did not need to prove which parent abused the child; instead, 

it could show that either Father abused the child, or he knew or should have 

known that Mother did. See generally Sandra R. v. Dep’t of Child Safety, 248 

Ariz. 224 (2020) (affirming termination without deciding which parent 

caused the abuse). As the juvenile court explained, it may have been

possible for any of these injuries to occur and for Father not to have caused 

them or not have known they were cause for concern. But the chance of all 

these things happening and Father not causing them or knowing about 

them is “miniscule to nil.” And while Father may have been at work during 

most of the breathing episodes, he was told about them and was home 

during one of them. Further, the treating doctor testified I.H.’s swollen 

head was apparent to a lay person. The treating nurse practitioner also

testified that a reasonable person would have sought medical attention for 

I.H. based solely on his general appearance due to malnourishment. Father

was not excused from his parental responsibilities simply because Mother 

was the primary caretaker. Thus, the court did not err in terminating 

Father’s parental rights to I.H. on grounds of abuse and neglect.

¶14 Citing Sandra R., Father argues DCS failed to prove any 

ground of severance as to L.H. because there were no signs L.H. was abused 

or neglected. “[T]o terminate parental rights to children who exhibit no 

evidence of neglect or abuse, under § 8-533(B)(2), the juvenile court must 

find during the parental unfitness inquiry, by clear and convincing 

evidence, that there is a risk of harm to those children.” Sandra R., 248 Ariz. 

at 228, ¶ 17. The court found that “at a minimum” Father failed “to 

recognize the existence or importance of severe injuries and 

malnourishment of” I.H. The court also determined “[t]he evidence is clear 

and convincing that Father lacks the sort of protective capacity that is 

necessary to keep [L.H.] safe.” The record supports these findings. Given 

Father’s inability or unwillingness to protect I.H. from abuse and neglect,

and recognizing the severity of his injuries, the court did not err in finding 

there was a risk of harm to L.H.

¶15 Lastly, Father summarily argues DCS failed to provide him

with services that would address any issues he had and enable him to 

reunite with L.H. Because Father did not object in the juvenile court to the 

adequacy of the services he was provided, he has waived the right to 

challenge on appeal the juvenile court’s finding that DCS made diligent

efforts to provide reunification services. See Shawanee S. v. Ariz. Dep’t of

Econ. Sec., 234 Ariz. 174, 179, ¶ 16 (App. 2014). In any event, reasonable 

evidence supports the court’s finding. Initially, Father declined all services, 

aside from visitation, and he waited several months before indicating he 
CLINT H. v. DCS, et al.

Decision of the Court

6

was willing to participate. At the time of the evidentiary hearing, parent 

aide services had not been started, although a referral had been made. The 

delay in services, or the limited offering of services, was largely attributable 

to Father’s decision to initially decline to participate. Thus, we will not 

overturn the court’s rulings based on Father’s assertion that DCS failed to 

make diligent reunification efforts.

CONCLUSION

¶16 We affirm the juvenile court’s order terminating Father’s 

parental rights to L.H. and I.H.