Opinion
No. 1 CA-JV 15-0293
02-09-2016
ANGEL V., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.V., Appellees.
COUNSEL David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Tucson By Cathleen E. Fuller Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. JD29025
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Randall M. Howe joined. CATTANI, Judge:
¶1 Angel V. ("Father") appeals the superior court's order terminating his parental rights to his son A.V. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 A.V. was born in March 2009, and shortly thereafter Father was incarcerated. Upon his release in May 2012, Father moved in with A.V.'s mother ("Mother").
The court also terminated Mother's parental rights, but Mother is not a party to this appeal.
¶3 A.V. has several health conditions that require frequent medical care. At the end of June 2014, A.V. was hospitalized for 11 days. Father and Mother did not take him to any of his four scheduled follow-up appointments, and as a result, A.V. had to be hospitalized for another six days. Hospital staff reported A.V.'s hospitalization to the Department of Child Safety ("DCS"), noting Father and Mother's failure to take A.V. to his follow-up appointments. Despite admonitions from DCS, Father and Mother did not take A.V. to additional follow-up medical appointments.
¶4 In August 2014, Mother tested positive for marijuana and Father tested positive for methamphetamine. DCS removed A.V., placed him with his maternal grandmother ("Grandmother"), and filed a dependency action, alleging, as relevant here, that Father had neglected A.V. by abusing illegal substances and by failing to provide A.V. with appropriate medical care. The superior court found A.V. dependent and confirmed his placement with Grandmother.
¶5 Father was subsequently arrested for and convicted of felony drug possession. He is currently incarcerated and is not scheduled to be released until March 2018.
¶6 At a March 2015 hearing, the superior court changed the case plan to severance and adoption. In April 2015, DCS filed a motion for termination of Father's parental rights, alleging that Father's incarceration would deprive A.V. of a normal home for a period of years and that termination was in A.V.'s best interests. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(4). At the severance hearing, a DCS caseworker testified that A.V. was doing well living with Grandmother, his medical needs were being met, and that Grandmother was willing to adopt him.
Absent material revisions after the relevant date, we cite a statute's current version.
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¶7 The superior court terminated Father's parental rights, finding that Father's sentence would deprive A.V. of a normal home for a period of years and that termination was in A.V.'s best interests. Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶8 Father argues that the superior court erred by determining termination was in A.V.'s best interests. To terminate a parent's rights, the court must find at least one statutory ground for severance and also find by a preponderance of the evidence that terminating the parent's rights is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M, 210 Ariz. 279, 284, ¶ 22 (2005). Termination is in the child's best interests if the child would be harmed if the relationship continues or would benefit from termination. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004). Evidence of an adoptive plan, or that the child is adoptable, may satisfy the best interests requirement. Demetrius L. v. Joshlynn F., CV-15-0274-PR, 2016 WL 116104, at *4, ¶ 16 (Ariz. Jan. 12, 2016). We will uphold the superior court's best interests determinations "unless no reasonable evidence supports those findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶9 Father acknowledges he is currently unable to care for A.V., but he contends there is no compelling reason for A.V. to be adopted because he can safely remain with a family member (Grandmother) until Father is released from prison. Father argues that this court should apply the reasoning of Jose M. v. Eleanor J., 234 Ariz. 13 (App. 2014), in which the court rejected a best interests finding (in a private severance action) based on the custodial mother's intent to marry her fiance and the fiancé's interest in adopting the child. But in Demetrius L., the Arizona Supreme Court recently disavowed Jose M.'s analysis that assessed the benefits of adoption in terms of whether the child's day-to-day living arrangement would change. 2016 WL 116104, at *4-5, ¶¶ 18-19. Thus Father's argument fails.
¶10 Moreover, A.V. will be nine years old by the time Father is scheduled to be released, and Father will have spent almost seven of those nine years in prison. And although A.V.'s current living arrangement with Grandmother is stable, severance and adoption could fortify and formalize Grandmother's relationship with A.V., and thus provide a significant benefit in stability that the court properly considered in its best interests analysis.
¶11 Furthermore, the court did not solely rely on A.V.'s adoptability in finding that terminating Father's parental rights was in A.V.'s best interests. The court also noted Father's history of substance abuse and his failure to provide for A.V.'s medical needs. The court properly considered these factors as potential harm to A.V. from a continued relationship with Father. See id. at *4, ¶ 16.
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court's ruling terminating Father's parental rights to A.V.