Opinion
No. 1 CA-JV 19-0077
09-19-2019
KEVIN A., Appellant, v. SHONDELL H., R.W., C.W., Appellees.
COUNSEL Law Office of Florence M. Bruemmer PC, Anthem By Florence M. Bruemmer Counsel for Appellant The Shaw Law Group, PLLC, Prescott By Bryan C. Shaw Counsel for Appellee Shondell W.
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. V1300SV201880007
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant The Shaw Law Group, PLLC, Prescott
By Bryan C. Shaw
Counsel for Appellee Shondell W.
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined. SWANN, Chief Judge:
¶1 Kevin A. ("Father") appeals the superior court's order granting Shondell H.'s ("Mother") motion to sever his parental rights to the parties' minor children. Father contends that the court erred by finding that severance served the children's best interests. We hold that reasonable evidence supports the best-interests finding. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the biological parents of R.W., born in December 2004, and C.W., born in January 2006.
¶3 Father began abusing Mother early in their relationship. On different occasions in 2004, he violently struck her, pushed her out of a trailer, threatened to beat her and leave her in the desert, and, when she sought help from law enforcement during an argument, threatened to frame her for drugs he claimed to have hidden in the vehicle she drove. He also called her names and disclaimed his paternity of R.W. Law enforcement was called when Mother engaged in self-harm after one argument with Father. On another occasion, law enforcement arrested Mother for disorderly conduct after she and Father had a loud verbal argument.
¶4 In 2006, law enforcement was called to the couple's residence multiple times based on their arguments. On one of those occasions, Mother reported that Father had repeatedly threatened to kill her. On another, she reported that Father had hit her while she held one of the children. Father was convicted and imprisoned for aggravated assault based on that incident.
¶5 In 2009, Mother lent Father a vehicle that he later refused to return. Law enforcement intervened to ensure that Father returned the vehicle, and Mother obtained an order of protection against Father. Father nonetheless continued to try to contact Mother.
¶6 According to Mother, in 2010, Father kicked and used a belt to hit R.W., but she did not report the incident to law enforcement. Law enforcement did respond several times that year to verbal arguments between Father and Mother and, once, Father and Mother's mother. On one of those occasions, law enforcement discovered Father's prohibited possession of a firearm, which ultimately led to his conviction and imprisonment for misconduct involving weapons. Also in 2010, Mother reported that Father had pushed and hit her during a trip with the children. When interviewed by law enforcement following that incident, C.W. demonstrated how he had seen Father use his fists to harm Mother. Mother thereafter obtained an order of protection against Father that he subsequently violated, leading to his conviction and imprisonment for aggravated harassment. Father did not thereafter have any contact with the children.
¶7 After the 2010 incident, Mother regularly continued to obtain orders of protection during periods when Father was not incarcerated—the record includes petitions from 2012, 2014, 2015, and 2017. Father, however, continued to try to contact Mother in 2011, 2012, and 2015. One of those attempts, a 2012 social-media message in which Father asked to see the children, led to Father's conviction and probation for interfering with judicial proceedings.
¶8 Mother petitioned for severance of Father's parental rights to the children in April 2018, motivated by the children's desire for her husband ("Stepfather") to adopt them. Days later, Stepfather called law enforcement after he and Mother, both intoxicated, engaged in a physical altercation in front of the children. The call resulted in Stepfather's arrest, but the state ultimately dropped all charges. The call also resulted in a report to the Department of Child Safety, but the Department later deemed the report unsubstantiated.
¶9 Stepfather testified at the January 2019 severance trial that the April 2018 fight was an aberration. He testified that he had appropriately cared for the children for a significant time and that both he and the children wanted him to adopt them. Mother similarly testified that Stepfather provided appropriate care. She testified that she lived in fear of Father, and that severance of his parental rights would afford the children a sense of closure and free them for adoption by Stepfather. She testified that she was willing to permit the children to talk to Father's relatives if the children desired, and that she and Stepfather would have to discuss the possibility of in-person visits with the relatives. Mother acknowledged that the Department had investigated her on several occasions.
¶10 A court-appointed investigator, who had conducted in-person interviews of Mother and the children, and a telephonic interview of imprisoned Father, concluded that severance of Father's parental rights would serve the children's best interests. The investigator reported that the children's memories of Father were almost exclusively about his violence toward Mother, and that they were afraid of him. She further reported that Father refused to take responsibility for his abuse of Mother and his failure to support the children, and had continued to engage in violent behavior while incarcerated. The investigator testified that though she was not apprised of Mother and Stepfather's physical altercation until shortly before the trial, the incident was not directly relevant to the severance question and did not alter her opinion that Father's rights should be severed. She testified that even if Stepfather were found ineligible to adopt the children, the children still would benefit from severance because it would provide them stability and preclude their potential return to a parent whom they feared.
¶11 Father testified that he never abused Mother or the children. He testified that he had tried to contact the children many times, and had tried to institute family-court proceedings several times without success. He testified that he wanted to be a parent to the children and had recently completed several parenting classes, for which he provided certificates. He testified that the April 2018 incident made him worry about the children's exposure to Stepfather, and that he believed Stepfather had alienated the children from their extended paternal family.
¶12 The superior court severed Father's parental rights to the children. The court found that Father had abandoned and neglected the children, and that even if Stepfather did not adopt the children, severance served their best interests because it would "provide [them] with permanency and stability, and alleviate the risk of [them] being subjected to Father, whose actions have proven his unfitness to parent [them]."
¶13 Father appeals.
DISCUSSION
¶14 To sever a parent-child relationship, the superior court must find by clear and convincing evidence at least one of the grounds set forth in A.R.S. § 8-533(B), and the court must find by a preponderance of the evidence that severance is in the child's best interests. 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). We accept the court's findings of fact unless they are not supported by any reasonable evidence, and we will affirm the severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶15 Father challenges only the court's best-interests finding. He therefore has waived any challenge to the court's determination that Mother proved the statutory grounds of abandonment and neglect (A.R.S. § 8-533(B)(1) and (2)). See Michelle M. v. Dep't of Child Safety, 243 Ariz. 64, 66, ¶ 6 (App. 2017).
¶16 The best-interests analysis focuses on the child's interests in stability and security. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018). Severance of the parent-child relationship is in the child's best interests "if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Id. at ¶ 13. "Courts must consider the totality of the circumstances existing at the time of the severance determination." Id. at 150-51, ¶ 13.
¶17 A third party's potential adoption of the child may offer benefits sufficient to support a finding that severance of the parent's rights serves the child's best interests. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 5, ¶ 17 (2016). The adoptive plan need not be certain to support a best-interests finding. See In re Appeal in Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). But logically, the more speculative the adoption, the less weight it may carry in favor of best interests. See Demetrius L., 239 Ariz. at 5, ¶ 19. Even if adoption is unlikely, however, independent factors may establish that severance is in the child's best interests—"[f]or example, petitioner might prove that there is a current adoptive plan for the child or that the child will be freed from an abusive parent." In re Appeal in Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 6 (1990). Severance also may be in the child's best interests if it would alleviate psychological uncertainty and instability, JS-501904, 180 Ariz. at 352, or eliminate the child's exposure to the continued presence of conceded statutory grounds that may negatively impact him or her, Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98, ¶ 11 (App. 2016). Additionally, the fact that the child's needs are being met in the non-parent's absence may weigh in favor of a best-interests finding. Cf. id. (observing, in state-initiated severance proceeding, that best-interest finding was supported by evidence showing that children's needs were being met in their current placements).
¶18 Reasonable evidence supports the court's finding that severance of Father's rights served the children's best interests. Father complains that Stepfather would likely be deemed unfit to adopt and that there is no evidence of the children's adoptability. But the court expressly stated that its best-interests finding was not predicated on adoption. And ample evidence demonstrated that the children would benefit from severance even absent adoption. There is little question here that Father was an abusive parent, and the children justifiably fear him. He abandoned and neglected them, and denies responsibility for any of the foregoing while continuing to engage in violence in prison. Additionally, reasonable evidence shows that the children's needs are being met absent Father's presence in their lives. The superior court appropriately concluded that severance would benefit the children by providing them permanency, stability, and safety from Father.
To be sure, certain information in the record raises concerns regarding Mother's parenting decisions. But the record also reflects the absence of any dependency proceedings with respect to Mother. --------
CONCLUSION
¶19 For the reasons set forth above, we affirm the order severing Father's parental rights.