Opinion
No. 1 CA-JV 12-0250
01-07-2014
CHANITO B., Appellant, v. VALERIA A., A.A., Appellees.
Riggs Ellsworth & Porter, PLC, Show Low By Michael R. Ellsworth Counsel for Appellant The Wood Law Office, Show Low By Ronald D. Wood Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Navajo County
No. S0900SV201100025
The Honorable Donna J. Grimsley, Judge
AFFIRMED
COUNSEL
Riggs Ellsworth & Porter, PLC, Show Low
By Michael R. Ellsworth
Counsel for Appellant
The Wood Law Office, Show Low
By Ronald D. Wood
Counsel for Appellee
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 This is an appeal from a juvenile court order granting a petition to sever a father's parental rights. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Chanito B. ("Father") and Valeria A. ("Mother") are the biological parents of A.A., who was born in 2001. Father and Mother did not marry, and A.A. has lived with Mother and his maternal grandparents since birth.
¶3 Father has been in prison for most of A.A.'s life. He has only seen A.A. on two occasions, both when A.A. was approximately three months old. Before A.A.'s first birthday, Father was arrested for first degree murder; he was subsequently convicted and sentenced to life imprisonment without possibility of release until he has served 25 years.
¶4 Father never sought to establish paternity and he has not had any type of relationship with A.A. Father has not paid child support, nor has he given money to Mother for A.A.
¶5 In December 2011, Mother filed a petition to terminate Father's parental rights to A.A. based on abandonment. Mother later amended her petition to allege that Father's prison sentence and his failure to file a paternity action or a notice of claim of paternity were also bases for termination. The superior court conducted a one-day hearing and subsequently ruled that Mother had established abandonment and that severance was in A.A.'s best interests.
¶6 With the juvenile court's permission, Father filed a delayed notice of appeal, but he was unable to obtain a transcript of the termination hearing because the audio recording was inaudible. Upon request of the juvenile court, this court remanded the case to recreate and settle the record, but after the juvenile court indicated it would not be possible to recreate the record, this court suspended jurisdiction and directed that the case be remanded for rehearing on the best interests issue.
¶7 On August 15, 2013, the juvenile court conducted the ordered rehearing, briefly interviewing A.A. in an in camera setting and hearing testimony, including from Mother and Father. A.A. stated during the interview that he does not wish to see Father and feels uncomfortable and frightened about the idea of having a relationship with him. Mother testified that Father is not a good role model and "cannot guide [A.A.] in the right direction." Mother stated that Father has repeatedly placed himself in situations where he would get into trouble, and his current life sentence is not the first time he has been in prison. Mother further testified regarding her view that reintroducing A.A. to Father, who has been incarcerated for most of A.A.'s life, would have a negative emotional effect on A.A. Father acknowledged that he did not have a relationship with A.A., but stated that he opposed severance because he wanted to show his love and concern for A.A.
¶8 The court found severance to be in A.A.'s best interests and thus terminated Father's parental rights, making the following findings:
[Father] and the minor child have not had any sort of direct parent-child relationship for the child's entire life.
[Father] was convicted of a dangerous, violent offense.
[Father] has received a twenty-five (25) year to life sentence in the Arizona Department of Corrections, and will not be released during the child's minority.
[Father] has never made an effort to establish his paternity of the minor child.
The minor child is currently in a stable, loving home where his emotional and physical needs are met.
The minor child is adoptable.
It is important to the minor child that the emotional stability of his home be maintained by certainty in the future. Uncertainty about a relationship with biological father that the minor child doesn't know affects his emotional health in
a negative way. By terminating the parental rights of his biological father that uncertainty is alleviated.
[Father] is not an appropriate role model for the minor child based upon the prison environment where he resides, and the violent nature of the crime for which he has been convicted.
Due to [Father]'s criminal conviction there is not an opportunity, ability, or intent on [Father]'s part to establish a parental relationship with the minor child during the minority of the minor child.
It is in the minor child's best interest, should the opportunity arise, to be adopted by someone who does have the ability, opportunity, and intent to be a father to the minor child.
¶9 We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 8-235(A).
Absent material revisions after the relevant date, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
¶10 The juvenile court may terminate a parent-child relationship only upon a finding that at least one statutory ground for severance has been established by clear and convincing evidence, and that severance is in the best interests of the child. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). Father has not challenged the juvenile court's finding that Mother established abandonment by clear and convincing evidence. Accordingly, our analysis is limited to whether the court's best interests finding is supported by a preponderance of the evidence.
¶11 To determine whether severance is in the best interests of a child, the court balances the "unfit" parent's rights against the child's rights. Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. Termination of the parent-child relationship 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, 83 P.3d 43, 50 (App. 2004). A court's determination of best interests must be supported by a preponderance of the evidence. Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018. We review the juvenile court's severance order for an abuse of discretion and accept the court's factual findings unless clearly erroneous. Mary Lou C., 207 Ariz. at 47, ¶ 8, 83 P.3d at 47.
¶12 Father argues that the juvenile court's best interests finding is not supported by the evidence and is instead based on hypothetical future happenings, i.e., the possibility that Father might be released from prison while A.A. is still a minor or that Mother might marry someone in the future who could adopt A.A. Father further contends that A.A.'s "life would remain the same regardless of the outcome of the termination hearing."
¶13 The evidence supports the juvenile court's finding that termination of Father's parental rights is in A.A.'s best interests. A.A.'s answers to questions posed by the court and Mother's testimony provided a reasoned basis for the court's conclusion that uncertainty about a relationship with a biological father that the minor child does not know and who has been in prison for almost all of the child's life negatively affects the child's emotional health.
¶14 Father contends that Mother should have presented expert testimony "as to the relationship between [A.A.] and [Father], and any effect to the relationship in regard to termination." But there is no requirement that expert testimony be presented, and there was sufficient evidence to support the court's best interests finding.
¶15 We agree with Father that the possibility of a speculative future adoption is not a significant factor in this case in light of the fact that A.A. is already living in a loving, stable environment with Mother. Cf. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334-35, ¶¶ 6-8, 100 P.3d 943, 945-46 (App. 2004) (holding—in a case involving a child who was in foster care—that evidence of an adoptive plan may constitute a benefit to be derived from terminating parental rights). Nevertheless, given overwhelming evidence of abandonment, including the absence of any prior relationship between Father and A.A., and given evidence of a negative effect that would result from continued uncertainty about the relationship, we conclude that the trial court did not abuse its discretion by finding that severance is in A.A.'s best interests.
CONCLUSION
¶16 For the foregoing reasons, we affirm.