LINDA v. v. ARIZONA DEPT. OF ECONOMIC SEC.

117 P.3d 795, 211 Ariz. 76, 458 Ariz. Adv. Rep. 16, 2005 Ariz. App. LEXIS 91
CourtCourt of Appeals of Arizona
DecidedAugust 9, 2005
Docket1 CA-JV 04-0180
StatusPublished
Cited by2 cases

This text of 117 P.3d 795 (LINDA v. v. ARIZONA DEPT. OF ECONOMIC SEC.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LINDA v. v. ARIZONA DEPT. OF ECONOMIC SEC., 117 P.3d 795, 211 Ariz. 76, 458 Ariz. Adv. Rep. 16, 2005 Ariz. App. LEXIS 91 (Ark. Ct. App. 2005).

Opinion

117 P.3d 795 (2005)

LINDA V., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Anyssa V., Appellees.

No. 1 CA-JV 04-0180.

Court of Appeals of Arizona, Division One, Department A.

August 9, 2005.

*796 Terry Goddard, Attorney General, By Stacy L. Shuman, Assistant Attorney General, Phoenix, Attorneys for Appellees.

Susan Sherwin, Office of the Legal Advocate, By Leslie Hatfield, Deputy Legal Advocate, Phoenix, Guardian ad Litem for the Minor Child.

Gary V. Scales, Phoenix, Attorney for Appellant.

OPINION

PORTLEY, Judge.

¶ 1 Linda V. ("Mother") challenges the juvenile court's order terminating her parental rights to her daughter Anyssa. She contends that the Arizona Department of Economic Security ("ADES") did not prove by clear and convincing evidence that she abused her daughter. She further argues that her boyfriend's murder of her other daughter, Ashley, should not be considered. Finally, she maintains that the court violated her fundamental rights to parent Anyssa. We disagree and affirm the termination of her parental rights.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The underlying facts are undisputed. After moving to Phoenix in October 2003 with her two daughters, four-year-old Ashley and twenty-one-month-old Anyssa, Mother witnessed her boyfriend violently shaking Ashley and saw severe bruises on Ashley's buttocks. The boyfriend admitted abusing Ashley but told Mother he would stop. The abuse did not stop: in later weeks, Mother and other family members observed bruises on Ashley's face, arms, and back.

¶ 3 Ashley died on January 4, 2004. The boyfriend admitted to the police that he had fatally beaten Ashley. He had hit her in the stomach area with a closed fist and had thrown her down against the wall or floor after he had driven Mother to work on January 3, 2004. Later, he noticed that Ashley had stopped breathing and tried to revive her. She vomited and appeared to resume breathing. He did not seek medical attention for Ashley or tell Mother.

¶ 4 Early the next morning, the boyfriend discovered that Ashley had died. Mother and boyfriend drove the child to the hospital approximately twenty to forty minutes later, but stopped on the way at the boyfriend's sister's house to drop off Anyssa. The hospital personnel recognized that Ashley had been dead for hours and counted approximately 175 bruises on her.

¶ 5 ADES filed a dependency petition to protect Anyssa, and she was found dependent as to both Mother and Mother's boyfriend, her father. The juvenile court later severed the boyfriend's parental rights. After the court terminated Mother's parental rights, she filed a notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 8-235(A) (Supp.2004), 12-120.21(A)(1) (2003), and — 2101(B) (2003).

*797 DISCUSSION

¶ 6 Although a parent's right to care, custody, and control of his or her children has long been recognized as fundamental, Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶ 11, 995 P.2d 682, 684 (2000); Matter of Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990), it is not absolute. Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684. The State may terminate a parent's fundamental right to a child under statutorily enumerated conditions after following specified procedures. Id. "To justify termination of the parent-child relationship, the trial 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; see A.R.S. § 8-533(B) (Supp.2004).

¶ 7 Mother contends that because she did not abuse or neglect Anyssa, the juvenile court erred in basing its termination order on A.R.S. § 8-533(B)(2).[1] That subsection states that termination may occur when:

[T]he 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). ADES counters that the subsection permits the juvenile court to terminate parental rights if the parent abused or neglected the child, another child, or knew or had reason to know that another child was being abused by someone else. We review de novo the juvenile court's interpretation of this statute. In re Kyle M., 200 Ariz. 447, 448, ¶ 6, 27 P.3d 804, 805 (App.2001).

¶ 8 When construing statutes our first duty is to ascertain and give effect to the legislature's intent. In re Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App.2001). While seeking the intent of the legislature, we first look at the plain wording of the statute. Id. When a "statute is clear and unambiguous, we apply it without using other means of statutory construction," Aros v. Beneficial Ariz., Inc., 194 Ariz. 62, 66, 977 P.2d 784, 788 (1999), if such meaning is constitutional. Garrison v. Luke, 52 Ariz. 50, 55, 78 P.2d 1120, 1122 (1938). However, if the terms are ambiguous, we determine legislative intent by looking at "the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Aros, 194 Ariz. at 66, 977 P.2d at 788 (quoting Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996)).

¶ 9 Section 8-533 lists the different statutory bases to terminate parents' rights to care, custody, and control of their child. As noted above, subsection (B)(2) justifies termination if "a child" is abused or neglected by either the parent or another person and the parent knew or should have known about the abuse or neglect. ADES argues that this subsection permits the juvenile court to terminate parents' rights to any of their children if the agency proves that the parents either abused or neglected another child, or knew or had reason to know that another child was being abused by someone else. This interpretation was impliedly adopted by the juvenile court to severe Mother's parental rights to Anyssa.

¶ 10 We first note that the phrase "a child" contained in § 8-533(B)(2) is ambiguous because it is readily capable of vastly different interpretations. Among other possible meanings, that phrase can mean "the child" or "another child of the parent." Both of these potential meanings are found elsewhere within § 8-533.

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Bluebook (online)
117 P.3d 795, 211 Ariz. 76, 458 Ariz. Adv. Rep. 16, 2005 Ariz. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linda-v-v-arizona-dept-of-economic-sec-arizctapp-2005.