Opinion
No. 1 CA-JV 12-0001
05-15-2012
THOMAS F., Appellant, v. KENNETH S., VIVIAN S., B.M.S., Appellees.
Christina Phillis, Maricopa County Public Advocate By Suzanne W. Sanchez, Deputy Public Advocate Attorneys for Appellant Mesa Rita A. Meiser PLC By Rita A. Meiser Attorneys for Appellees Kenneth S. and Vivian S. Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication - Ariz. R.P. Juv. Ct. 103(G); ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JS506816
The Honorable Raymond P. Lee, Judge (Retired)
AFFIRMED
Christina Phillis, Maricopa County Public Advocate
By Suzanne W. Sanchez, Deputy Public Advocate Attorneys for Appellant
Mesa
Rita A. Meiser PLC
By Rita A. Meiser Attorneys for Appellees Kenneth S. and Vivian S.
Phoenix TIMMER, Presiding Judge
¶ 1 Thomas F. ("Father") appeals the juvenile court's order terminating his parental rights to B.M.S. ("Son"). Father does not challenge the court's finding he abandoned Son; instead, he argues the court erred by finding severance to be in Son's best interests. For the reasons that follow, we disagree and therefore affirm.
BACKGROUND
We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002).
¶2 Son was born to Alexandra S. ("Mother") in November 2005, some nine months after Mother and Father had dated and subsequently ended their relationship. Mother's parents, Vivian S. ("Grandmother") and Kenneth S. ("Grandfather"), immediately assumed primary care of Son and, with Mother's consent, obtained formal legal guardianship of Son in July 2006. Father was not involved with the pregnancy or after Son's birth.
¶3 When Son was approximately one year old, he was diagnosed with infantile congenital glaucoma, a medical condition that can cause blindness if not properly and consistently treated. Grandmother and Grandfather have provided this medical treatment over the course of Son's five surgeries to date, in addition to providing financial, emotional, physical, and social care for Son. Over the years, Son has become integrally connected to the grandparents as his nuclear family and commonly refers to Grandmother and Grandfather as his parents.
¶4 Mother and Father had only sparse, sporadic contact after Son's birth. They communicated briefly on a social networking website in late 2006, dated briefly in Summer 2008, and renewed communications briefly in June 2010 and again in early 2011. They twice discussed Son's parentage and twice agreed to complete a paternity test, but did not follow through.
¶5 Grandmother and Grandfather filed this severance action to facilitate their adoption of Son. A court-ordered DNA test during the proceedings formally established Father's paternity, and Father contested the severance. The court held a contested severance hearing on October 27, 2011, and terminated Father's parental rights to Son, finding pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1) (West 2012) that Father had abandoned Son and that severance was in Son's best interests. Father appeals.
Absent material revision after the relevant date, we cite a statute's current version.
DISCUSSION
¶6 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance and that a preponderance of the evidence shows severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We will accept the juvenile court's findings unless those findings are clearly erroneous, Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 190, ¶ 25, 971 P.2d 1046, 1051 (App. 1999), and we will affirm a severance order if reasonable evidence supports the court's factual findings. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). Further, we view the evidence in the light most favorable to affirming the judgment. Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994).
¶7 On appeal, Father does not contest the court's determination that he abandoned Son. He argues instead that the court's best-interests finding was clearly erroneous. Father contends he did not seek to disrupt Son's home with Grandmother and Grandfather but sought to supplement that stable home with "therapeutically-appropriate visits" providing Son beneficial contact with his biological father and paternal family. Thus, he argues, Son would benefit from a continued relationship with his biological father while not risking harm from disruption of his current family home.
¶8 In considering a child's best interests, the superior court must determine "how the child would benefit from [the] severance or be harmed by the continuation of the relationship" with the biological parent. Maricopa County Juv. Action No. JS- 500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Evidence that a current adoptive plan exists may support a finding that termination is in the child's best interests. Lawrence R. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 585, 587, ¶ 8, 177 P.3d 32 7, 329 (App. 2 008); Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004). Similarly, evidence that the current guardians are meeting the child's needs may also support the best-interests finding. Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50.
¶9 Here, the court found that Grandmother and Grandfather had provided a "loving, nurturing and caring" home for six-year-old Son since his birth and are now seeking to adopt him. The court explicitly concluded severance would benefit Son "because it would free [him] for adoption" by his grandparents, which would enhance the permanency and stability of his home life. It also found denying the severance would expose Son to the risk of removal from his stable home, which could cause him severe harm.
¶10 Mother, Grandmother, and Grandfather each testified that Son has enjoyed a stable and happy home with the grandparents since his birth in 2005, and Father acknowledged the grandparents' "dedication, love, and care for [Son]." Grandmother and Grandfather, who seek to adopt Son, also highlighted the particular importance of permanency and stability given Son's medical condition. Although Father argues he does not wish to disrupt Son's secure and loving home, his testimony suggested a risk of future disruption absent severance. For example, Father's testimony that he is "looking for a two bedroom [home] so I can accommodate room for my son" and that he would "start very small [with visitation] and work my way up" underscores the risk of removal, with its attendant negative consequences, as found by the court. This evidence was sufficient to support the court's best-interests finding. Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291. The court did not err.
We note that the record reflects a stated willingness by the grandparents to "facilitate [Father] in developing a consistent relationship with [Son]" even after severance and adoption.
CONCLUSION
¶11 For the foregoing reasons, we affirm the judgment terminating Father's parental rights to Son.
We amend the caption in this appeal to refer to the child by his initials.
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_____________________________
Ann A. Scott Timmer, Presiding Judge
CONCURRING:
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Patricia K. Norris, Judge
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Donn Kessler, Judge