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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.W., Appellees.

No. 1 CA-JV 21-0108 

Appeal from the Superior Court in Maricopa County

No. JD36906, JS19894

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale

By John L. Popilek

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Doriane F. Neaverth

Counsel for Appellee Department of Child Safety

FILED 11-18-2021
JOSHUA W. v. DCS, E.W.

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani 

joined.

T H U M M A, Judge:

¶1 Joshua W. (Father) appeals the superior court’s order 

terminating his parental rights to his son E.W. Because Father has shown 

no error, the order is affirmed. 

FACTS AND PROCEDURAL HISTORY

¶2 Father and Andrea F. (Mother) are the parents of E.W., born 

in January 2017, and J.W., born in December 2018. At a doctor’s 

appointment when E.W. was one year old, Mother reported that he had 

been unable to put any weight on his right leg for the past week. X-rays 

revealed a fractured femur. The fracture was a spiral fracture, indicating it 

had been caused by twisting. The fracture also was healing, suggesting that 

it had occurred 10 days or more before being diagnosed. 

¶3 At the pediatrician’s urging, Mother took E.W. to the 

emergency room. Medical personnel concluded that the injury, which the 

parents could not explain, appeared highly suspicious for nonaccidental 

trauma. But no one notified law enforcement or the Department of Child 

Safety (DCS). 

¶4 Later that year, Mother gave birth to J.W. He was healthy, 

though Mother later described him as colicky, or fussy with bouts of 

continual crying. One day when J.W. was two weeks’ old, Mother and 

Father were alone with both children until about 2:00 p.m. Mother then 

went to the grocery store. Before leaving, Mother handed J.W., who was 

crying, to Father and asked him to burp the infant. When she returned 15 

minutes later, Mother found Father holding J.W. The infant was 

“unresponsive and limp,” his head was tilted back, and he was gasping for 

air. The parents did not immediately call 9-1-1 or take J.W. to an emergency 

room. Instead, Father searched the internet for J.W.’s symptoms; the results 

suggested the parents needed to seek immediate medical attention. About 

20 minutes later, Mother drove J.W. to the nearest urgent care.
JOSHUA W. v. DCS, E.W.

Decision of the Court

3

¶5 From urgent care, J.W. was transferred to Phoenix Children’s 

Hospital where he died 10 days later. J.W. had sustained significant brain 

injury, including a skull fracture and swelling from extensive bleeding, 

retinal hemorrhages, and like his brother before him, a fractured femur. 

Doctors concluded J.W.’s injuries were “highly associated with child abuse” 

and that his particular femur fracture was the sort that typically occurs 

“either with pulling [and] twisting or violent shaking.” Doctors found no 

other potential causes for J.W.’s injuries, ruling out infection, disease, or 

birth trauma. Other medical providers testified that J.W.’s skull fracture 

and injuries required “some sort of force applied to the head and to an 

object.” and were consistent with abusive head trauma. 

¶6 An autopsy confirmed J.W.’s diagnosed injuries, and found 

additional injuries to his neck, spine, and tibia. The medical examiner 

concluded that J.W. died from complications of impact of his head with a 

hard surface, and that the manner of death was homicide. When Mother 

and Father offered hospital staff no plausible explanation for J.W.’s injuries, 

DCS took immediate custody of E.W. and filed a dependency petition. 

¶7 The Avondale Police Department began a criminal 

investigation. Mother told investigators she and Father were J.W.’s sole 

caretakers since his birth and when she asked Father what had happened 

to J.W., he stated, “I don’t know. He was crying then he just suddenly 

stopped and . . . appear[ed] unresponsive.” Father, in turn, told 

investigators that J.W. had been “constantly crying” since his birth and that 

after Mother left for the store that day, Father “tried everything to console” 

J.W., but “nothing seemed to make him stop crying.” Father told 

investigators he was patting J.W. on his back when he noticed the infant 

suddenly stop crying and lose consciousness. The parents each told 

investigators that J.W. had suffered no falls or accidents that would explain 

his injuries. When police interviewed Mother again a few days later, 

however, she told them that after her first interview, Father admitted he 

had become “really frustrated” and “bounc[ed]” J.W. repeatedly on his 

knee until he “went unresponsive.” 
JOSHUA W. v. DCS, E.W.

Decision of the Court

4

¶8 DCS moved to terminate the parents’ rights to E.W. based on 

abuse and neglect. See Ariz. Rev. Stat. (A.R.S.) § 8-533(2) (2021).1 The 

superior court held a combined dependency and termination adjudication 

over six days in November and December 2019. The court later issued an 

order terminating the parents’ rights to E.W.

¶9 In a previous appeal, this court noted the record contained 

substantial evidence showing neglect and abuse of J.W., but concluded that 

the superior court had not made sufficient findings of fact and conclusions 

of law. This court therefore reversed and remanded the case for 

clarification. See Andrea F. & Joshua W. v. Dep’t of Child Safety, 2021 WL 

162020 ¶¶ 27, 30 (Ariz. App. Jan. 19, 2021) (mem. dec.). In March 2021, the 

superior court issued a supplemental order confirming the termination of 

both parents’ rights. This court has jurisdiction over Father’s timely appeal

pursuant to Article 6, Section, 9, of the Arizona Constitution, A.R.S. § 8-

235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 103-104. 

DISCUSSION

¶10 As applicable here, to terminate parental rights, a court must 

find by clear and convincing evidence that at least one statutory ground in 

A.R.S. § 8–533(B) has been proven and must find by a preponderance of the 

evidence that termination is in the best interests of the child. See Kent K. v. 

Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec., 

196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court “is in the best 

position to weigh the evidence, observe the parties, judge the credibility of 

witnesses, and resolve disputed facts,” this Court will affirm an order 

terminating parental rights as long as it is supported by reasonable 

evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 

2009) (citation omitted).

¶11 The court may terminate the rights of a parent who “has 

willfully abused a child.” A.R.S. § 8-533(B)(2). Abuse is defined as “the 

infliction or allowing of physical injury, impairment of bodily function or 

disfigurement.” A.R.S. § 8-201(2). In terminating a parent’s rights under § 

8-533(B)(2) to a child who himself has not been neglected or abused, “the 

juvenile court must find during the parental unfitness inquiry, by clear and 

convincing evidence, that there is a risk of harm to” that child. Sandra R. v. 

Dep’t of Child Safety, 248 Ariz. 224, 228 ¶ 17 (2020). A risk of harm can exist 

where the prior abuse is recent. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated
JOSHUA W. v. DCS, E.W.

Decision of the Court

5

Ariz. 76, 77, 80 n.3 ¶¶ 2-5, 17 (App. 2005). It also may exist where the risk is 

manifest given the nature of the abused child’s injuries and the age and 

vulnerability of the child at issue. Sandra R., 248 Ariz. at 231 ¶ 31. 

¶12 The superior court found that DCS proved, by clear and 

convincing evidence, that severance of Father’s rights was warranted 

because of his neglect and abuse of J.W., which put E.W. “at substantial risk 

of harm.” The court found that “the evidence strongly point[s] to Father as 

the perpetrator of the abuse on [J.W.],” and the court found credible 

Mother’s timeline of events preceding J.W.’s death, meaning she “handed 

a healthy [J.W.] over to Father’s care, ran an errand and returned to find 

[J.W.] with life-threatening injuries.” 

¶13 On appeal, Father argues that DCS “offered no explanation as 

to how or why [J.W.] was injured.” The law, however, does not require DCS 

to prove precisely how or why J.W. was injured while in Father’s care. The 

trial evidence amply supports the finding that Father abused the child. The 

trial evidence also supports the finding that after J.W. became unconscious, 

Father “failed immediately to summon emergency assistance for a helpless 

baby in such obvious medical distress by the time Mother returned home 

or thereafter,” from which the court reasonably inferred that Father 

“hop[ed] to conceal his physical abuse of [J.W.]” 

¶14 Father next contends insufficient evidence supports the 

finding that E.W. would be at a substantial risk of harm if he were returned 

to Father’s care.2 DCS took custody of E.W. right after learning about the 

injuries to his brother, and evidence regarding E.W. was limited to the 

unexplained spiral femur fracture treated in early 2018. Father argues that 

he has a bond with E.W., who is older than J.W. when he died, and “does 

not have the same weak neck and skull of a newborn.” Contrary to Father’s 

arguments, the seriousness of his abuse of J.W. is obvious, and the risk of 

additional harm to E.W. is not diminished by Father’s contention otherwise. 

Considering these facts, the superior court properly could find the risk of 

harm to E.W. was “manifest in light of the nature of [J.W.’s] injuries and 

[E.W.’s] vulnerability.” Sandra R., 248 Ariz. at 231 ¶ 31.

2 The termination order erroneously states “Mother,” instead of “Father,” 

in this finding. See In re Marbella P., 223 Ariz. 159, 160 n.3 (App. 2009) 

(construing omission of word “not” from transcript as a typographical error 

because the court’s intention was clear). 
JOSHUA W. v. DCS, E.W.

Decision of the Court

6

¶15 Father argues the court erred in taking judicial notice “that 

there is a psychology of abuse, meaning that a parent who abuses one child 

is likely to abuse a second. Matter of Appeal In Cochise County Juvenile Action 

No. 5666-J, 133 Ariz. 157, 162 (1982).” Father also argues the court erred by 

adopting that theory, which DCS presented in its written closing argument, 

“as one of its factual grounds for its severance finding.” Contrary to Father’s 

assertion, although the court noted that DCS had offered the “psychology 

of abuse” as support for severance, it did not mention the “psychology of 

abuse” within (or as the basis of) any of its findings. The numerous factual 

findings make clear that the court analyzed the specific facts of the case and 

did not improperly rely on an unsupported theory. See Callender v. 

Transpacific Hotel Corp., 179 Ariz. 557, 562 ¶ 12 (App. 1993) (“To justify 

reversal, trial errors must be prejudicial to the substantial rights of the 

appealing party” and “must affirmatively appear from the record.”).

CONCLUSION

¶16 The order terminating Father’s parental rights to E.W. is 

affirmed.