Opinion
No. 1 CA-JV 20-0079
09-22-2020
ROBERT R., Appellant, v. SALINA G., A.G., Appellees.
COUNSEL Riggs Ellsworth & Porter, PLC, Show Low By Michael R. Ellsworth Counsel for Appellant KBunited, LLC, Phoenix By Kerrie M. Nelson Counsel for Appellee Salina G.
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Navajo County
No. S0900SV201900015
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL Riggs Ellsworth & Porter, PLC, Show Low
By Michael R. Ellsworth
Counsel for Appellant KBunited, LLC, Phoenix
By Kerrie M. Nelson
Counsel for Appellee Salina G.
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop joined. SWANN, Chief Judge:
¶1 Robert R. ("Father") appeals the superior court's order denying his petition to terminate the parental rights of Salina G. ("Mother"). He contends that the court erred by finding that severance was not in A.G.'s best interests. For reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the biological parents of A.G., born in February 2012. Mother and Father never married, and in July 2013, Father petitioned for and was awarded parenting time. Two years later, Father filed an emergency petition, alleging that Mother was using methamphetamine. Despite that allegation, the court awarded Mother and Father 50/50 parenting time but ordered Mother to undergo drug testing if requested by Father.
¶3 In February 2018, Father filed a petition to modify legal decision-making, parenting time, and child support after Mother had been missing for over a month and had not participated in drug testing as ordered by the court. Father was awarded sole legal decision-making, and Mother was awarded supervised parenting time as approved by Father. Mother then checked into a drug rehabilitation facility, where she stayed for 15 months. Mother completed her drug program in May 2019 and one month later, filed a petition to modify the child custody determination, seeking 50/50 parenting time and sole legal decision-making over A.G.
¶4 After Father was served with Mother's petition to modify, he filed a petition to terminate Mother's parental relationship with A.G., alleging abandonment and that severance was in the child's best interests. During an evidentiary hearing held on the matter, Mother testified that she had been sober for 22 months and had stable employment.
¶5 Father's wife, Simone, testified that she wished to adopt A.G. so that she could continue to provide a loving, safe, and nurturing environment for her. She also testified that A.G. misses Mother and occasionally asks about her. Father and Simone had also recently started taking A.G. to counseling after A.G. began "demonstrat[ing] physical symptoms of being fearful of being left alone."
¶6 After the hearing, the superior court found that the statutory ground of abandonment had been met but that the best interests of the child required denial of the termination petition. The court noted that without termination, A.G. would be in a loving, stable, nurturing environment with Father while still being able to reestablish a relationship with Mother.
¶7 Father appeals.
DISCUSSION
¶8 Father contends that the superior court erred by finding that he had failed to show severance was in A.G.'s best interests by a preponderance of the evidence.
Neither party contests the finding of abandonment.
¶9 The superior court may terminate a parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance and a preponderance of the evidence shows that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Once the court has found at least one statutory ground for severance, it may "presume that the interests of the parent and child diverge." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018) (citation omitted). "[T]ermination 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. The "child's interest in stability and security" is the touchstone of the inquiry. Id. at ¶ 12 (citation omitted). We view the facts in the light most favorable to sustaining the superior court's denial of a motion to terminate parental rights and review that ruling for an abuse of discretion. Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 12 (App. 2010).
¶10 Although "[t]he best interest requirement may be met if . . . the petitioner proves that a current adoptive plan exists for the child, or even that the child is adoptable," the superior court "need not automatically conclude that severance is in a child's best interests just because the child is adoptable." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4, ¶¶ 12, 14 (2016) (alteration in original) (citation omitted). Instead, the superior court must look to the totality of the circumstances as they exist at the time of the severance hearing. Alma S., 245 Ariz. at 150-51, ¶ 13.
¶11 While "the focus of the best-interests inquiry is on the child, courts should consider a parent's rehabilitation efforts as part of the best-interests analysis." Id. at 151, ¶ 15. Here, Mother testified that she had turned her life around and was 22 months' sober. Mother entered the treatment facility so that she could become a better parent to A.G. She testified that in treatment, she learned "how to live life all over again" and that the only thing left was for her to get her daughter back.
¶12 Father cites to Demetrius L. as support for his contention that A.G. would benefit from severance because it would make her eligible for adoption by Simone. In Demetrius L., a mother filed a private severance action against the child's father seeking to terminate his parental rights. Demetrius L., 239 Ariz. at 2, ¶ 2. At the time of the severance petition, the child was in a stable living environment with the mother and her new husband. Id. at ¶ 5. The court found that severance was in the child's best interests because mother's new husband was willing and prepared to adopt the child. Id. at 4, ¶ 19. The court further noted the benefits of adoption in that it "obligates the adopting parent legally and financially to the child," solidifies the rights of the adopting parent in the future, and allows the child to inherit from the adopting parent. Id. at 5, ¶ 17.
¶13 Unlike the child in Demetrius L. however, who had not seen his father in several years and was frightened by their few interactions, see id. at 6, ¶ 20, Mother attempted to maintain a relationship with A.G. while she was in the drug rehabilitation program, but her efforts were largely thwarted by Father. Simone also testified that A.G. misses Mother and occasionally asks about her. And Father noted that even if Mother's rights were not terminated, Simone would "continue to be a perfect mom to [A.G.]." Accordingly, the superior court did not err in finding that, under these circumstances, severance was not in A.G.'s best interests.
CONCLUSION
¶14 For the foregoing reasons, we affirm.