Opinion
No. 1 CA-JV 13-0130
01-07-2014
JAMES S., Appellant, v. JESSICA M., D.M., Appellees.
Wylde Summers PLLC, Gilbert By Elizabeth Harris-Wylde Counsel for Appellant Robert D. Rosanelli, Phoenix Counsel for Appellee Jessica M.
NOTICE: NOT FOR PUBLICATION.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 Maricopa County
No. JS507339
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Wylde Summers PLLC, Gilbert
By Elizabeth Harris-Wylde
Counsel for Appellant
Robert D. Rosanelli, Phoenix
Counsel for Appellee Jessica M.
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Sally Schneider Duncan joined.
SWANN, Judge:
¶1 James S. ("Father") appeals the juvenile court's order denying his petition to sever Jessica M.'s ("Mother['s]") parental rights to their minor child, D.M. We affirm because reasonable evidence supports the court's decision that severance was not in D.M.'s best interests.
FACTS AND PROCEDURAL HISTORY
¶2 D.M. was born to Mother and Father in 2001. For the first four or five years of her life, D.M. resided primarily with Mother but had frequent parenting time with Father that increased over the years from every other weekend to every other week or more.
¶3 In 2005 or 2006, D.M. began living exclusively with Father after Mother fell and was injured. According to Mother, she fell because she had a seizure induced by medications that she took for several serious and disabling health conditions. Father, however, alleged that the fall was caused by a drug overdose and that Mother had physically assaulted D.M. Based on these allegations, Father obtained an order of protection that prohibited Mother from contacting him and D.M. Father also obtained an order from the family court granting him sole custody of D.M. without notice to Mother.
¶4 After assuming care of D.M., Father continued to facilitate frequent visitation between D.M. and her maternal relatives, primarily her grandparents. According to Father, he never told these relatives that they could not allow Mother to have contact with D.M. after the order of protection expired, and he took no action when he saw Mother with D.M. and the grandparents on one occasion. According to the grandparents, however, Father expressly conditioned their continued access to D.M. on Mother's exclusion from the visits. Nonetheless, the grandparents and Mother's brother occasionally allowed Mother to spend time with D.M. when D.M. was in their care, and they also facilitated the transfer of gifts from Mother to D.M. And though they denied Mother's repeated requests
for Father and D.M.'s contact information, Mother e-mailed D.M. once in 2009 and sent several text messages to her in 2012 or 2013. According to Mother, she stopped sending text messages to D.M. after Father intercepted one of the messages and threatened to terminate her family's access to D.M. if Mother's communications continued.
¶5 Meanwhile, Father commenced a relationship with Jennifer S. ("Stepmother"). The two met in late 2008, began living together (along with D.M. and Father's two younger children) in 2010, and married in 2011. Stepmother assumed a parental role with respect to D.M. and came to consider D.M. to be her child. D.M. also came to refer to Stepmother as her "mother" when speaking to third parties.
¶6 In December 2012, when D.M. was 11 years old, Father filed a petition to sever Mother's relationship with D.M., alleging, inter alia, that Mother had abandoned D.M. and that it was in D.M.'s best interests to be adopted by Stepmother. Mother denied the petition's allegations, and the matter proceeded to an evidentiary hearing in May 2013. At the hearing, Stepmother testified that she wanted to adopt D.M., and Father testified that this was D.M.'s wish as well. D.M.'s guardian ad litem also stated that D.M., who did not testify, had told him that she wanted to be adopted. But D.M.'s maternal grandmother testified that when D.M. had raised the issue with her, D.M. had cried and expressed feelings of confusion. Mother testified that she appreciated Stepmother's role in D.M.'s life but wanted to have a meaningful parental relationship with D.M.
¶7 The juvenile court found that Father had met his burden to prove that Mother abandoned D.M. under A.R.S. § 8-533(B)(1) but had not met his burden to prove that severance was in D.M.'s best interests. Accordingly, the court denied Father's petition to sever Mother's parental rights. Father timely appeals.
DISCUSSION
¶8 To sever a parent-child relationship, the juvenile court must find by clear and convincing evidence that at least one of the grounds set forth in A.R.S. § 8-533(B) exists, and must find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Here, the juvenile court's finding of abandonment as a statutory ground for severance is not at issue. Our review is limited to whether the juvenile
court erred by finding that Father did not meet his burden to prove that severance was in D.M.'s best interests. Because the juvenile court is in the best position to weigh evidence, observe the parties, judge witness credibility, and make appropriate findings, we accept the court's findings of fact unless they are supported by no reasonable evidence. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We must affirm the court's ruling unless it is clearly erroneous. Id.
¶9 In a best-interests inquiry, we presume that the interests of the parent and the child diverge because the parent has already been found unfit under A.R.S. § 8-533(B). Kent K., 210 Ariz. at 286, ¶ 35, 110 P.3d at 1020. Though an unfit parent maintains an interest in the care and custody of her child, the statutory finding substantially reduces the importance of this interest. Id. The best-interests inquiry therefore focuses primarily on the child's interest in a safe and stable home life. See id. at 286-87, ¶¶ 35, 37, 110 P.3d at 1020-21. But "[w]e cannot assume that a child will benefit from a termination simply because [s]he has been abandoned. Rather, [the] petitioner must prove an affirmative benefit to the child resulting from termination." Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5-6, 804 P.2d 730, 734-35 (1990). "[A] determination of the child's best interest must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Id. at 5, 804 P.2d at 734. This determination requires the court to engage in a balancing test that considers the totality of the evidence. Maricopa Cnty. Juv. Act. No. JS-9104, 183 Ariz. 455, 461, 904 P.2d 1279, 1282 (App. 1995), abrogated on other grounds by Kent K., 210 Ariz. 279, 110 P.3d 1013. Relevant factors include whether an adoptive placement is immediately available, whether the existing placement is meeting the child's needs, and whether the child is adoptable. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). Other relevant factors include whether the child desires to be adopted, JS-9104, 183 Ariz. at 461, 904 P.2d at 1285; whether the parent has made post-petition efforts to reestablish a parental relationship, JS-500274, 167 Ariz. at 8, 804 P.2d at 737; whether removing the child from familiar surroundings and caregivers could cause the child to suffer emotional trauma, Maricopa Cnty. Juv. Act. No. JS-501568, 177 Ariz. 571, 579, 869 P.2d 1224, 1232 (App. 1994); and whether the child would be at risk of abuse or neglect if placed in the parent's care. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 238, ¶ 27, 256 P.3d 628, 635 (App. 2011); Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 80, ¶ 17, 117 P.3d 795, 799 (App. 2005).
¶10 Here, the court found that Stepmother was immediately available as an adoptive parent, Stepmother was meeting D.M.'s needs,
and D.M. had bonded with Stepmother. But the court also found that it "fail[ed] to see how [D.M.] would be harmed by a continued parent/child relationship with [Mother]." The court explained that though Mother had "done very little" to maintain a relationship with D.M. and "should have done more," she had not "done nothing" and she realized that she should have done more. The court further found that "the credible evidence . . . suggested that [D.M.] is confused as to whether or not she wants to be adopted[, and s]he loves both [Mother] and [Stepmother,] . . . [w]ith just cause." The court recommended that the parties seek a parenting time order in the family court because "[Mother] can't be a fulltime parent. . . . But there's no harm to D.M. . . . in her having continued contact with [Mother], whether it's once every other week, once a month, certainly even if it's supervised contact going forward."
¶11 Father contends that the juvenile court misapplied the law because it "erroneously concluded it must find both a benefit of termination and a detriment from continuing the parental relationship." Father misreads the record. The court considered D.M.'s limited relationship with Mother and Mother's desire to develop a more meaningful relationship as a "factor," consistent with the disjunctive test prescribed by JS-500274. This was appropriate. It was also appropriate for the court to consider D.M.'s wishes. We reject Father's contention that no reasonable evidence supported the court's finding that D.M. was confused about whether she wanted to be adopted. D.M.'s grandmother testified that D.M. had expressed confusion when discussing the matter with her. The court was allowed to consider this hearsay evidence under Ariz. R.P. Juv. Ct. 66(D), and the witness's credibility was for the court to decide. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. The fact that D.M. made unqualified representations to her guardian ad litem did not necessarily preclude a finding that she was actually confused and uncertain.
¶12 The court properly balanced D.M.'s confusion and her relationship with Mother against other relevant factors. Though reasonable decision-makers could have made different findings on this record, we discern no legal error. Contrary to Father's suggestion, the factors showing D.M.'s adoptability did not compel the court to find that severance was in D.M.'s best interests. "[A] determination that the child is adoptable alone does not require the fact finder to conclude that severance is in the child's best interests." Lawrence R. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App. 2008). The fact finder "might ultimately conclude that severance would not be in the best interests of an adoptable child because of some other circumstances." Id. at 588, ¶ 11, 177
P.3d at 330. Reasonable evidence supported the court's conclusion that even though D.M. was adoptable, it was in D.M.'s best interests to deny severance because D.M. would benefit from a continued relationship with Mother. We reject Father's contention that the court discounted the benefits of a formal adoption based on its statement that D.M.'s life "would remain the same" and she "would [still] have an awesome step mom who's great for her." Read in context, it is clear that these remarks merely constituted a finding that the continuation of D.M.'s relationship with Mother would not deprive D.M. of her beneficial relationship with Stepmother -- a proper consideration for the best-interests inquiry.
CONCLUSION
¶13 The juvenile court's findings and conclusions regarding D.M.'s best interests were supported by the evidence. We therefore affirm the order denying Father's petition to sever Mother's parental relationship with D.M.
*The Honorable Sally Schneider Duncan, Judge Pro Tempore of the Court of Appeals, Division One, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to Article 6, Section 3, of the Arizona Constitution and A.R.S. §§ 12-145 to -147.