IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TINA T., Appellant,

v.

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

No. 1 CA-JV 14-0092

Appeal from the Superior Court in Maricopa County

Nos. JD22619, JS17302

The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa

By Eric Devany

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Michael F. Valenzuela

Counsel for Appellee Department of Child Safety

OPINION

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

Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

B R O W N, Judge:
TINA T. v. DCS, B.H.

Opinion of the Court

2

¶1 Tina T. (“Mother”) appeals the juvenile court’s order 

terminating her parental rights to her daughter, B.H., on the grounds of 

willful abuse under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(2). 

Mother argues the court’s decision is not supported by reasonable evidence. 

However, because she decided not to contest the allegations of the petition

to terminate, our review in this case is limited to determining whether the 

Department of Child Safety (“DCS”)1 presented evidence demonstrating a 

factual basis for the allegations. For the following reasons, we conclude that 

the record contains such evidence, and therefore affirm. 

BACKGROUND

¶2 Mother and Nicholas H. (“Father”)2 are the biological parents 

of B.H., who was born in 2012. Mother’s two older children, A.N. and C.B., 

were born in 2002 and 2007, respectively. In January 2003, police and 

emergency personnel responded to Mother’s apartment after a 9-1-1 call 

reported that A.N., then three months old, was not breathing. A.N. later 

died from injuries consistent with “shaken baby syndrome.”

¶3 When police questioned Mother about the incident, she

reported that A.N. was with her then-boyfriend, Pedro, and Mother was 

not present because she was physically disciplining C.B. in a different room. 

Mother also reported that both she and Pedro often disciplined C.B. by

spanking him and Pedro admitted to shaking A.N. In a later interview, 

Mother admitted she had seen Pedro shake A.N. previously. 

¶4 Mother was charged with one count of child abuse, a class 2 

felony, relating to A.N.’s death. In March 2005, Mother pled guilty to 

attempted child abuse, a class 3 felony. She was sentenced to one year in 

prison and placed on lifetime probation, the terms of which prohibited any 

contact with minor children. When Mother was released from prison in

2006, her probation was modified to permit supervised contact with C.B. 

 

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 

2014) (enacted), the Department of Child Safety is substituted for the 

Arizona Department of Economic Security in this matter. See ARCAP 27. 

For ease of reference, we refer to DCS throughout this decision even though 

these proceedings commenced prior to the statutory change.

2 A motion to terminate Father’s parental rights is pending in the 

juvenile court. 
TINA T. v. DCS, B.H.

Opinion of the Court

3

¶5 In August 2007, witnesses reported that Mother had 

physically abused C.B. at a store by punching him in the face and dragging 

him outside. Mother was indicted on two counts of child abuse and later 

pled guilty to one count of child abuse, a class 6 felony. Mother was

sentenced to one year in prison along with reinstatement of the 

probationary condition that she have no contact with minor children. 

¶6 When Mother gave birth to B.H. in August 2012, DCS

removed the infant from Mother’s care but did not immediately seek court 

intervention because B.H. had been placed in Father’s care. Mother and 

Father remained in contact, however, and because Father did not follow the 

established safety plan, DCS filed a dependency petition against both 

parents, and B.H. was taken into care and placed with family members. 

¶7 After the court found B.H. dependent as to Mother, DCS filed 

its petition to terminate Mother’s parental rights to B.H., alleging that 

Mother had “neglected and/or willfully abused a child or failed to protect 

a child from neglect and/or willful abuse under A.R.S. 8-533(B)(2)” and that 

termination was in the best interests of B.H. At the initial hearing, Mother 

stated that she wished to contest the petition. 

¶8 Mother appeared at the scheduled adjudication hearing, but 

at the outset informed the court through counsel she no longer wished to 

contest termination. After discussing with Mother the rights she would be 

waiving, the court determined on the record that she knowingly, 

intelligently, and voluntarily waived her right to a contested termination 

hearing. Mother then left the courtroom, but her counsel remained and 

participated in the hearing. The court also excused Mother’s probation 

officer, who was prepared to testify as a witness for DCS.

¶9 DCS presented the testimony of DCS unit supervisor Shannon 

Robinson, who testified that B.H. could not be reunited with Mother 

because the terms of her probation prevented contact with any minor child.3 

Robinson explained that Mother’s history of child abuse put B.H. at a risk 

of abuse that could only be prevented by terminating Mother’s parental 

rights because, despite receiving services relating to her first conviction for 

attempted child abuse, she subsequently abused another child, resulting in 

another felony conviction. Based on these facts, Robinson opined that 

Mother posed a threat of harm to “[a]ny child in her care.” According to 

 

3 On three occasions between November 2012 and August 2013, 

Mother unsuccessfully requested that the superior court modify the terms 

of her probation to permit supervised visits with B.H. 
TINA T. v. DCS, B.H.

Opinion of the Court

4

Robinson, B.H. was adoptable, thriving in her current placement with her 

paternal aunt and uncle, and her best interests would be served by 

terminating Mother’s parental rights. 

¶10 After admitting various exhibits offered by DCS and 

considering arguments from counsel, the court granted the request for 

termination, explaining on the record that DCS had shown by clear and 

convincing evidence that Mother willfully abused a child. The court found 

that Mother (1) knew about the serious physical abuse to A.N. and failed to 

protect him; (2) physically abused C.B. while Pedro was abusing A.N.; and 

(3) physically abused C.B. in 2007. Based on these circumstances, the court 

determined a nexus existed between prior abuse and the risk to B.H.

because Mother failed to correct her behavior after the first child abuse 

incident and she has been on lifetime probation since her conviction in 2005. 

The court also found that DCS proved by a preponderance of the evidence 

that termination is in B.H.’s best interests. The court incorporated these 

findings in a signed minute entry and Mother timely appealed. 

DISCUSSION

¶11 Before a parent’s rights may be terminated, the juvenile court 

holds an initial hearing, the purpose of which is to ensure service is 

complete and to determine whether the parent contests termination. Ariz. 

R.P. Juv. Ct. 65(A); A.R.S. § 8-535. If the parent wishes to contest the request

for termination, the court sets the matter for a termination adjudication 

hearing. A.R.S. §§ 8-535(E), -537(A). The purpose of that hearing is to 

determine whether the party seeking termination has met the burden of 

proving a ground for termination by clear and convincing evidence and 

proving termination is in the best interests of the child by a preponderance 

of the evidence. Ariz. R.P. Juv. Ct. 66(A), (C). The presentation of evidence

at the hearing “shall be as informal as the requirements of due process and 

fairness permit and shall generally proceed in a manner similar to the trial 

of a civil action before the court without a jury.” Ariz. R.P. Juv. Ct. 66(D).

¶12 A parent, however, “may waive the right to trial on the 

allegations contained in the motion or petition for termination of parental 

rights by admitting or not contesting the allegations.” Ariz. R.P. Juv. Ct. 

66(D)(1). “An admission or plea of no contest may be oral or in writing.”

Id. When accepting a parent’s “admission or plea of no contest[,]” the court 

must proceed as follows:

(a) Determine whether the party understands the rights being 

waived; 
TINA T. v. DCS, B.H.

Opinion of the Court

5

(b) Determine whether the admission or plea of no contest is 

knowingly, intelligently and voluntarily made; 

(c) Determine whether a factual basis exists to support the 

termination of parental rights; and 

(d) Proceed with entering the findings and orders as set forth 

in subsection (F)[.] 

Id. (emphasis added). If the party seeking termination has met its burden 

of proof, Rule 66(F)(2)(a) requires the court to “[m]ake specific findings of 

fact in support of the termination of parental rights and grant the motion or

petition for termination.”

¶13 Because Mother initially desired to contest the termination, 

the juvenile court scheduled a contested termination adjudication hearing. 

After Mother’s counsel informed the court that Mother no longer wished to 

contest termination, the court informed Mother of the rights she would be 

waiving and then determined she knowingly, voluntarily, and intelligently 

waived such rights. Mother does not argue that she did not understand the 

rights she waived nor does she contest the validity of her waiver. Nor does 

Mother contend the court failed to make findings required under Rule 

66(D)(1)(d) and (F)(2). Instead, Mother argues that no reasonable evidence 

supports the court’s termination order. Specifically, she challenges (1) the 

court’s finding that a sufficient nexus exists between the prior incidents of 

abuse and the risk to B.H., and (2) the court’s determination that 

termination is in B.H.’s best interests.

¶14 As a threshold matter, Mother’s arguments fail to recognize 

she waived her right to a contested termination hearing when she chose not 

to challenge the allegations of DCS’s petition and thereby entered her plea 

of no contest. In doing so, she implicitly acknowledged that the procedures

for evaluating DCS’s uncontested petition would be substantially different 

than the procedures the court and the parties would have followed had she 

contested termination. Thus, Mother cannot challenge the sufficiency of the 

evidence as if the juvenile court had conducted a contested termination 

adjudication hearing. Rather, her right to appellate review is confined to 

raising issues contemplated by the waiver procedure outlined in Rule 

66(D)(1), including the existence of a factual basis. Construing Rule 

66(D)(1) to permit Mother to assert a broad attack on the sufficiency of the 

evidence would be contrary to her voluntary decision to enter a plea of no 

contest and would inject uncertainty and delay in the proceedings at a point 

when timely resolution of the matter is critical for the benefit of the child. 
TINA T. v. DCS, B.H.

Opinion of the Court

6

See Ariz. R.P. Juv. Ct. 36 (“The [termination] rules should be interpreted in 

a manner designed to protect the best interests of the child, giving 

paramount consideration to the health and safety of the child.”). 

¶15 Addressing Mother’s challenge as an appeal from a contested 

termination hearing would also be unfair to the other parties to the 

proceeding, as well as the juvenile court, all of whom relied on Mother’s 

knowing, voluntary, and intelligent decision to not contest the allegations 

of the petition. We therefore construe Mother’s arguments on appeal as 

presenting a narrow question of whether a factual basis exists to support 

termination. Ariz. R.P. Juv. Ct. 66(D)(1)(c). Because our research has 

revealed no case law involving a challenge to a factual basis in connection 

with a no contest plea in a termination proceeding, we turn for guidance to 

the analogous context of guilty or no contest pleas made by criminal 

defendants, when the trial court also must determine whether a factual 

basis exists for each element of the crime. Ariz. R. Crim. P. 17.3; State v. 

Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994). The purpose of 

requiring this limited evidentiary showing is to substantiate a guilty or no 

contest plea and prevent conviction of an obviously innocent defendant 

solely on the basis of the defendant’s unwillingness to contest the charges. 

See State v. Johnson, 181 Ariz. 346, 349, 890 P.2d 641, 644 (App. 1995) (“A 

factual basis is required for the purpose of shielding the innocent from 

conviction, rather than to provide a back-door for defendants to obviate 

finality by challenging their guilty pleas.”). 

¶16 Similarly, the purpose of requiring the juvenile court to 

determine whether a factual basis exists to support termination under Rule 

66(D)(1) is to ensure that parents do not lose their parental rights solely 

based on their unwillingness to contest the allegations of the petition. Cf.

In re Termination of Parental Rights of Brittany Ann H., 607 N.W.2d 607, 619 

(Wis. 2000) (“We conclude that the legislature intended the circuit court to 

hear testimony in support of the allegations because testimony safeguards 

accurate fact-finding and protects the parents.”). Thus, simply because 

parents decide not to contest a request for termination does not mean their 

rights are automatically severed. Instead, the juvenile court must comply 

with Rule 66(D)(1), which includes determining whether the party seeking

termination has presented evidence establishing the existence of a factual 

basis to support the alleged grounds for termination. On appeal, our task 

is to discern whether the juvenile court record includes evidence that, if 

believed, would establish the statutory grounds for termination of Mother’s 

parental rights. 
TINA T. v. DCS, B.H.

Opinion of the Court

7

¶17 DCS sought to terminate Mother’s parental rights under 

A.R.S. § 8-533(B)(2), which provides for termination when a parent has 

neglected or willfully abused a child. 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.” Id. 

DCS alleged that Mother’s prior abuse of A.N. and C.B. supported 

termination of her parental rights to B.H, who was born after those

incidents of abuse. Under § 8-533(B)(2), “parents who abuse or neglect their 

children, or who permit another person to abuse or neglect their children, 

can have their parental rights to their other children terminated even 

though there is no evidence that the other children were abused or 

neglected.” Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 

P.3d 795, 798 (App. 2005). When the grounds for termination of a parent’s 

rights to one child are based on abuse of another child, DCS must show a 

constitutional nexus between the prior abuse and the risk of future abuse to 

the child at issue. Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 

16, 257 P. 3d 1162, 1165 (App. 2011).

¶18 The juvenile court found that DCS met its burden of proving 

that Mother had willfully abused her children and there was a 

constitutional nexus between the prior abuse and B.H. such that abuse 

would likely occur again. DCS supervisor Robinson opined that because 

Mother had abused (or was aware of the abuse of) her two older children, 

she posed a threat of harm to any children in her care. This testimony,

together with the exhibits describing Mother’s involvement in the prior 

incidents of abuse and the conditions of her probation, supports a finding 

that DCS satisfied its obligation under Rule 66(D)(1) to establish a factual 

basis supporting the statutory ground for termination.4 See Mario G., 227 

Ariz. at 285, ¶ 16, 257 P. 3d at 1165 (affirming the juvenile court’s finding 

that termination was appropriate because although child was born three 

years after the incidents involving the prior abuse, a sufficient nexus existed 

between the prior abuse and the risk that such abuse would occur to the 

child). 

¶19 Given Robinson’s testimony that B.H. was thriving in her 

current placement, the record also supports the juvenile court’s finding that 

termination was in the child’s best interests. See Audra T. v. Ariz. Dep’t of 

 

4 The juvenile court did not specifically state that it had determined a 

“factual basis” existed in support of DCS’s petition for termination. But 

that finding is implicit in the court’s statements made on the record and in 

its minute entry, where the court outlined the evidence presented and 

found that DCS satisfied its burden of proof.
TINA T. v. DCS, B.H.

Opinion of the Court

8

Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating 

that juvenile court, in determining best interests, may properly consider 

“whether an existing placement is meeting the needs of the child”); James S. 

v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 

1998) (stating that the juvenile court must find that the “child will benefit 

from termination of the relationship or that the child would be harmed by 

continuation of the parental relationship”). Therefore, the record plainly 

indicates that DCS established a factual basis showing termination of 

Mother’s parental rights was in B.H.’s best interests.

CONCLUSION

¶20 We affirm the juvenile court’s order terminating Mother’s 

parental rights to her daughter, B.H.