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Matter of Appeal in Pima County Juvenile Severance Action No. S-1201716/30/1995
uring pregnancy). Rather, I find Summerfield v. Superior Court , 144 Ariz. 467, 698 P.2d 712 (1985), more apposite. If a wrongful death action can be brought where a viable infant dies before birth for harm done in utero, as held in Summerfield , it follows that responsibility for such harm is not eradicated where the child survives. Cf. Matter of Stefanel Tuiesha C. , 556 N.Y.S.2d 280 (A.D. 1, 1990)(even a single incident of cocaine usage during infancy can sustain a finding of "actual impairment" to a child if the child is born with positive toxicology for cocaine); In re Solomon L., 190 Cal. App. 3d 1106, 236 Cal. Rptr. 2 (1987)(use of drugs during pregnancy was neglect for purpose of termination action); In re Ruiz , 27 Ohio Misc. 2d 31, 500 N.E.2d 935 (Ohio Com. Pl. 1986)(the protection of an unborn child's interest in life is bestowed at viability and injury to the fetus after that point is abuse); Matter of Baby X , 97 Mich. App. 111, 293 N.W.2d 736 (Mich. App. 1980)(child has a legal right to begin life with a sound mind and body). I believe the trial court erred in discounting the children's injuries knowingly inflicted by the parents during pregnancy and in not giving weight to the best interests of the children who, at the time of the court's ruling, had been in their foster placements, one for 41 months and the other for more than 2-1/2 years. The record shows that enough experimentation has occurred with the biological parents; the children should not be exposed to further experimental risk and are entitled to the stability of their current home, which the trial court specifically found would be in their best interests.
It is further worthy of note that in the 1994 amendment to A.R.S. ยง 8-533(B), in the introductory paragraph to the grounds for severance, the legislature changed the phrase "the court may also consider the needs of the child" (emphasis added) to "the court shall also consider the best interests of the child." (emphasis added) I believe that neither the trial court nor this court have factored into the decision-making equation the best interests of the children. When that is done, taking into account the pathetic long-term history of the parents, I believe termination of parental rights is strongly indicated.
JAMES D. HATHAWAY, Judge
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