Opinion
2 CA-JV 2023-0094
02-02-2024
In re Termination of Parental Rights as to J.P.,
The Redmon Law Firm, Tucson By Nathaniel Scott Redmon Counsel for Appellant Marinella P. Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellee Lauren H. Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor J.P.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20220073 The Honorable Kimberly H. Ortiz, Judge
The Redmon Law Firm, Tucson By Nathaniel Scott Redmon Counsel for Appellant Marinella P.
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellee Lauren H.
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor J.P.
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Marinella P. appeals from the juvenile court's order granting judgment as a matter of law pursuant to Rule 319, Ariz. R. P. Juv. Ct., in favor of Lauren H. The court determined Marinella had failed to prove the grounds for severance of Lauren's parental rights as to their child J.P. Finding no error, we affirm.
¶2 In reviewing the grant of a motion for judgment as a matter of law, we "consider the evidence in the light most favorable to the non-moving party." Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, ¶ 8 (App. 2008) (quoting Johnson v. Pankratz, 196 Ariz. 621, ¶ 4 (App. 2000)). Marinella and Lauren met in 2018 and began dating. They moved in together, but broke up in April 2020 while Marinella was pregnant with J.P. That same month Lauren threatened to send nude photographs of Marinella to others, and Marinella obtained an order of protection against him. The next day, outside of Marinella's workplace, Marinella began filming Lauren because he was being "loud and aggressive" toward her. Lauren "ran at her" and tried "to grab her phone," grabbing hold of a lanyard around her neck and holding onto her for a few minutes until someone pulled him away. Lauren ultimately pled guilty to misdemeanor charges of "assault and disorderly conduct and interfering with judicial proceedings."
¶3 In August 2020, Lauren brought a paternity action, seeking legal decision-making rights and parenting time. J.P. was born in September 2020, and Lauren was granted parenting time two days a week, for two hours a day. Due to the protective order, third parties were required to facilitate exchanges, with Lauren's mother acting as his designated third party. Lauren did not make child support payments from September 2021 to May 2022, and, after making payments in the summer of 2022, he stopped paying after June 2022.
¶4 In May 2022, Marinella filed a petition for termination of Lauren's parental rights on the grounds of abandonment, neglect, mental incapacity, and abuse. At the close of a contested severance hearing, Lauren moved for judgment as a matter of law pursuant to Rule 319, and J.P. supported the motion. The juvenile court initially granted the motion as to all grounds except abandonment. But it ultimately granted the motion on that ground as well, determining there was not sufficient evidence to show that severance was in J.P.'s best interests, even were it to accept there had been abandonment.
¶5 On appeal, Marinella argues the juvenile court "erred in several respects by granting" the motion, focusing on the ground of abandonment. "We review a trial court's ruling on a motion for judgment as a matter of law de novo." Roe v. Austin, 246 Ariz. 21, ¶ 7 (App. 2018). Such a motion should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990); see also Monaco v. Health Partners of S. Ariz., 196 Ariz. 299, ¶ 6 (App. 1999).
¶6 "In order for abandonment to exist, there must be clear and convincing evidence of intentional conduct on the part of a parent that evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." In re Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 4 (1990). A finding of abandonment is not, however, sufficient in itself. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 14 (2016). The petitioner must also show by a preponderance of the evidence that severance is in the best interests of the child. Maricopa Cnty. No. JS-500274 , 167 Ariz. at 4; Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005).
¶7 Marinella asserts the juvenile court improperly concluded severance was not in J.P.'s best interests "by failing to consider grounds for termination due to abandonment in relation to . . . best interests." In ruling on best interests, the court stated it was "[a]ssuming without deciding" that Lauren had abandoned J.P. It then noted testimony by the social worker who had conducted a social study evaluation in the case, in which she opined that the parents' different parenting styles and "lack of open communication," as well as the animosity between them would make things difficult for J.P. On that basis, she testified that it would be in his best interests to remain in Marinella's home. Although the court agreed with the social worker that J.P. would benefit from less "animosity in his life," it concluded there was insufficient evidence to establish that severance was in J.P.'s best interests.
¶8 Contrary to Marinella's claim that the juvenile court was "required" to analyze the ground of abandonment "prior to reaching any determination of best interests," our supreme court has concluded that "the best interests of the child could be a sufficient reason for a denial of termination." Maricopa Cnty. No. JS-500274 , 167 Ariz. at 5. Thus, if a petitioner does not establish that severance is in the child's best interests, severance is properly denied, regardless of whether a ground for severance is proven as well. Id.
¶9 Marinella also contends the juvenile court erred because it did not "view the evidence and all reasonable inferences in the light most favorable" to her. And she further maintains the court applied "an incorrect definition and analysis of 'best interests.'" We disagree.
¶10 Rule 319(a)(3) requires a juvenile court considering a motion for judgment as a matter of law to view the facts in the light most favorable to the non-moving party. As noted above, the court considered the social worker's testimony in reaching its conclusion, and nothing in its ruling from the bench suggested it was employing an improper standard under Rule 319, which it cited. See State v. Trostle, 191 Ariz. 4, 22 (1997) (absent evidence to contrary, reviewing court presumes lower court knew and correctly applied law). And although "attempts to reestablish a parental relationship" cannot alone rebut a prima facie case of abandonment, such efforts "may properly be used in weighing whether the child's best interests would be served by termination." Maricopa Cnty. No. JS-500274 , 167 Ariz. at 8. That is what the court did here.
¶11 Our supreme court has "held that termination 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." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 13 (2018). In making that evaluation, "[c]ourts must consider the totality of the circumstances existing at the time of the severance determination." Id. On the record before us, we agree with the juvenile court that Marinella failed to present sufficient evidence from which a reasonable finder of fact could conclude that severance was in J.P.'s best interests.
¶12 In her home social study, the social worker described the positive home life J.P. had with Marinella and the issues that Marinella had with Lauren in their relationship. On that basis, she recommended severance, but she did not state that severance was in J.P.'s best interests or explain how that was so. At the severance hearing, she testified that severance would be in J.P.'s best interests, agreeing that "parental consistency" would benefit J.P. But she also acknowledged that if the severance were to be denied, J.P.'s support from Marinella's side of the family would remain in place. At another point, she agreed, without elaboration as to why, that "it would be a detriment to put [J.P.] back in [Lauren's] care." In her most lengthy discussion of best interests, she noted the differences in parenting styles and lack of communication between Marinella and Lauren, explaining that such issues are "very difficult for a child to navigate."
¶13 Citing Frank R. v. Mother Goose Adoptions, Marinella argues on appeal that J.P.'s "interest in stability supported termination." 239 Ariz. 184, ¶¶ 57-61 (App. 2016), vacated in part 243 Ariz. 111 (2017). But, unlike the situation in Frank R., J.P. will not be removed from the home "he has known" as a result of the denial of severance. Id. ¶ 60. As detailed above, evidence at the hearing established that J.P.'s relationship with Marinella and her family would persist even if severance were denied. And, although the social worker testified that the conflict between the parents would be difficult for J.P., Marinella has cited no authority to support a conclusion that avoidance of such conflict is itself sufficient to establish that severance is in J.P.'s best interests. See Maricopa Cnty. No. JS-500274 , 167 Ariz. at 6 (noting "unspoken assumption that a parent, even an inadequate one, is better than no parent at all unless the child can somehow benefit from losing his natural parent").
¶14 We affirm the juvenile court's ruling granting the motion for judgment as a matter of law.