I N THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

TINA T.

, Appellant

,

v.

DEPARTMENT OF CHILD SAFETY

, B.H., Appellee s

.

No. 1 CA

- JV 14

- 0092

Appeal from the Superior Court in Maricopa County

No s . 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
C ounsel for Appellee Department of Child Safety

OPIN ION

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
wil l ful abuse under A rizona 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 i s 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 t hat
the record contains such e vidence, 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 Mot her’s apartment after a 9

- 1

- 1 call

repo rted 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 intervi ew, Mother admitted she had seen Pedro shake A.N. previously

.
¶4 Mother was charged with one count of child abuse, a cl ass 2 felony

, relating to A.N.’s death

. In March 2005, Mother pled guilty to attempt ed 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 s upervised 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 200 7, 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 t he court found B.H. dependent as to Mother

, DCS filed
its petition to terminate Mother’s parental rights to B.H

. , alleg ing 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

a t the outset informed the court through counsel she no longer wished to

contest termination

. After discussing with Mother the rights she would be waiving

, t he 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. T he court also excused Mother’s probation officer, who was prepared to testify as a witness for DCS

.
¶9 D C S prese nted the testimony of DCS unit supervisor Shannon
Robinson , who testified that B.H. could not be reu nited with Mother
because the te rms of her probation prevented contact with any minor child. 3 Robinson explai ned 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 abuse d another child, resulting in

a nother 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 th at 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, t he court granted the request for termination, explaining on t he record that DCS had shown b y 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 abuse d C.B. in 2007. Based on the se circumstances, the court
determined a nexus existed between prior abuse and the risk to B.H.
because Mother failed to correct her behavior after t he first child abuse
incident and she has been on lifetime probation since her conviction in 2005

. T he court also found that DCS proved by a preponderance of the evidence
that termination is in B.H.’s best interest s

. The court incorporated t hese findings in a signed m inute e ntry and Mother ti mely appeal ed

.

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 wish es to contest the request for termination , the court set s the matter for a termination adjudication hearing. A.R.S. §§ 8

- 535(E)

, - 5 37(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 presen tation 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 pa rent , 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 b e 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. ( e mphasis 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 schedule d a contested termination adjudication hearing

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

contest termination

, the court inform ed 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
M other contend th e court failed to make findings required under Rule 66(D)(1)(d) and (F) (2). Instead, Mother argues that no reasonable evidence support s the court’s termination order. Specifically, she chall enges (1) the court’s finding that a sufficient nexus exists between the prior incidents of
abuse and the risk to B.H. , and (2) th e court’s determination that
termination is in B.H.’s best interests.

¶14 As a threshold matter, Mother’s arguments fail to rec ognize 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 procedure s 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 c ontested 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 a n 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 no t contest the allegations of the petition. We therefore construe Mother’s arguments on appeal as presenting a narrow question of whether a factual basis exist s 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

, whe n 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.
S ee State v. Johnson , 181 Ariz. 346, 349, 890 P.2d 641, 644 (App. 1995) (“ A factual basis is required fo r 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 all egations of the petition. C f

. 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 safegua rds
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 in cludes determining whether the party seeking
termination has present ed evidence establish ing 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 evid ence 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 wil l fully abused a child. A buse 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 th ose 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, 116 5 (App. 2011)

.
¶18 T he 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 sup ervisor 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. T his testimon y , 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 116 5 (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 sufficie nt 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 i n 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 findi ng 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 or der terminating Mother’s parental rights to her daughter, B.H

.