Opinion
No. 1 CA-JV 16-0090
11-29-2016
JOSHUA K., Appellant, v. CASEY K., C.K., Appellees.
COUNSEL Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant Jones, Skelton & Hochuli, P.L.C., Phoenix By Eileen Dennis GilBride Counsel for Appellee Casey K.
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JS517688
The Honorable Shellie Smith, Judge Pro Tempore
VACATED
COUNSEL Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant Jones, Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Counsel for Appellee Casey K.
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 This is a private severance case, which grew out of a divorce. Joshua K. ("Father") appeals the Maricopa County Superior Court's grant of Casey K.'s ("Mother") petition to sever his paternal rights to C.K. ("Child"). The juvenile court found that Father abandoned Child, that Father was incapacitated, and that severance was in Child's best interests. Father appeals the best-interests finding. For the following reasons, we vacate the severance.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born in 2006. In 2010, Mother and Father divorced and agreed to a joint custody plan.
For its factual determinations, the juvenile court took judicial notice of the family court's dissolution proceedings, FC 2010-053202. The parties did not appeal the relevant portions of the family court proceedings. Therefore, we take judicial notice of the dissolution proceeding's record up to the severance hearing on February 10, 2016. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000).
¶3 In early 2012, the family court limited Father's parenting time while he sought treatment for alcohol addiction and required him to submit to random alcohol testing.
No transcripts from the dissolution proceedings are provided. We therefore assume that the record supports the findings in the minute entries. Bliss v. Treece, 134 Ariz. 516, 519 (1983).
¶4 In October 2013, Mother filed a motion to suspend Father's parenting time. After an evidentiary hearing at which Father did not appear, the family court granted the motion.
¶5 In July 2015, Mother filed this action in juvenile court to sever Father's parental rights. Before the severance proceedings, Father's last contact with Child was in August 2013 when Child and Matthew H., Mother's boyfriend ("Boyfriend"), attempted to deliver a letter to Father.
¶6 The juvenile court severed Father's parental rights. Father timely appeals.
DISCUSSION
¶7 The right to custody of one's child is fundamental but not absolute. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). To sever the parent-child relationship, the court must first find at least one statutory ground by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005); see A.R.S. § 8-533(B). The court must then find by a preponderance of the evidence that severance is in the child's best interests. Kent K., 210 Ariz. at 284, ¶ 22.
¶8 The juvenile court found two statutory grounds, abandonment and incapacity due to substance abuse and mental deficiency, and that severance was in Child's best interests. See A.R.S. § 8-533(B)(1), (3). Father does not challenge the statutory grounds for severance — his sole argument on appeal is that the record does not support the juvenile court's best-interests finding. I. STANDARD OF REVIEW
¶9 We review the juvenile court's factual determinations for an abuse of discretion. Mary Lou C., 207 Ariz. at 47, ¶ 8. We will not reweigh the evidence, we accept the juvenile court's findings of fact if reasonable evidence and inferences support them, and we will affirm a severance unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016); Mary Lou C., 207 Ariz. at 47, ¶ 8. II. BEST INTERESTS OF THE CHILD
¶10 To determine best interests, the court must balance the "diluted parental interest" created by the finding of a statutory ground for severance with the child's interests in safety and stability. Kent K., 210 Ariz. at 286, ¶ 35. The court must find that the child will affirmatively benefit from the severance or be harmed by continuing the parent-child relationship. E.g., Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990); Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 246 (App. 1988).
¶11 The juvenile court found generally that "under all of the circumstances in this case, it is in the best interest of [C]hild to sever the parental rights of the Father." The juvenile court made no finding of any specific detriment or benefit to Child from severance, and we perceive none.
A. Child's Safety
¶12 Mother first argues that Child would be safer if Father's rights were severed. She points to her testimony at the severance hearing that "I have no idea where [Father] lives. If he ever were to decide to scoop her up and take her to his house, I have no idea where that is." However, she also testified that after August 2013 Father did not attempt to communicate with Child until the severance proceedings began. Nothing in the record shows that Father has or plans to ever "scoop up" Child without attaining the family court's or Mother's permission.
B. Father's Past Unwillingness To Care for Child
¶13 Mother next argues that if something happened to her, Child might be placed with Father even though Father has not shown any interest in parenting Child. She points to Father's last contact with Child in August 2013. That day, despite not knowing his address, Boyfriend took Child to Father to deliver a letter Child had written to him. Both parties concede that Mother was not present. Father threatened to call the police if "they" ever came to his property again.
¶14 Mother testified that the incident "was confusing" and "[Child] didn't understand why [Father] didn't want contact with [Child]." She further stated that severance would "get[ ] rid of the constant mystery" and make the situation "more clear." But Child has not been in or required to have counseling. Mother testified that severance would not affect Child's life and that Child had moved on.
¶15 "In most cases, the presence of a statutory ground will have a negative effect on the children. However, in some cases, this will not be true." Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988). Here, while the existence of the statutory grounds has certainly not benefited Child, there is nothing to show that severance, as opposed to legal decision-making and parenting-time orders, will be of benefit to Child.
¶16 Child's confusion alone is not enough to show best interests. Courts cannot assume that a child benefits from severance after being abandoned. JS-500274, 167 Ariz. at 5-6. The juvenile court must find a benefit of severance or detriment from maintaining the relationship beyond abandonment itself. See id. at 6. Though abandonment may negatively impact a child, see JS-6831, 155 Ariz. at 559, the severance must still provide some positive benefit, JS-500274, 167 Ariz. at 5-6, such as ensuring the child's safety or future stability, Kent K., 210 Ariz. at 286, ¶ 35. Child's confusion would understandably exist with or without severance, and nothing in the record shows that Father threatens Child's health or safety.
C. Father's Mental Deficiency and Alleged Alcohol Abuse
¶17 Mother next contends that Father's alcohol abuse endangers Child. In determining the statutory grounds for severance, the juvenile court found that Father has a "mental deficiency[ ] as well as a history of chronic abuse of alcohol and there are reasonable grounds to believe that the conditions will continue for a prolonged indeterminate period." Father did not appeal the statutory grounds for severance. Though we accept the statutory grounds as valid, we must consider the underlying facts as they relate to Child's best interests.
¶18 Father suffered a brain injury after being struck by a car in May 2014. Father then filed a motion to modify spousal maintenance and child support because "he suffers from cognitive deficiencies and other long term disabilities." After meeting with the parties off the record, the family court found that Father has cognitive issues and possible mental health issues. Nothing in the record shows what effect these issues may have on Father's relationship with Child. But in its order suspending Father's parenting time, the family court explicitly found there has been no child abuse. Though the juvenile court properly found that these issues affect Father's capacity to parent Child, see A.R.S. § 8-533(B)(3), nothing in the record shows how this deficiency affects Father's ability to interact with Child.
¶19 At the severance hearing, Mother expressed "[g]rave concerns" about Child being in Father's care given his history of alcohol abuse. Father testified that he has been sober for more than three years. Mother contends that "no objective evidence support[s] that claim." But the party moving to sever a parent's rights has the burden of proof. Kent K., 210 Ariz. at 281, ¶ 5. And we must distinguish between a parenting-time order (which could place Child in Father's care), and a severance order.
¶20 In January 2012, Father e-mailed Mother to temporarily relinquish custody so that he could complete an alcohol rehabilitation program. A month later, the family court ordered Father to undergo random alcohol testing until he tested clean for six consecutive weeks. He submitted to six tests in five different weeks, all negative. Later that year, Father submitted a hair-follicle drug test, which was also negative. In its minute entry suspending Father's parenting time, the family court did not find that Father abused alcohol but noted Mother's allegations of substance abuse "require[d] further consideration."
¶21 At the severance hearing Mother testified that "I've seen no evidence that anything has been overcome. As far as I'm concerned, he's still in rehab." Aside from her speculative characterization of Father's situation, there is no evidence of substance abuse after Father's 2012 e-mail. Indeed, there is no evidence Father has an ongoing substance-abuse problem or that his mental deficiency negatively impacts Child in a manner that warrants severance — the family court can protect Child's best interests without severing Father's parental rights.
Again, we note that the statutory grounds for severance have not been appealed, and we do not disturb them. Our best-interests review in this case is focused on the facts concerning best interests and the family court's ability to protect those interests. --------
D. Disruption of Child's Current Living Situation
¶22 Mother finally argues that Mother and Boyfriend provide a stable environment for Child, and Boyfriend has become Child's father figure. Mother asserts it is in Child's best interests to remain with "her family unit" if anything were to happen to her.
¶23 The record is clear that Child's current living environment is healthy and safe. Father's parental rights have not diminished Child's day-to-day wellbeing and are not currently an obstacle to adoption. See Demetrius L., 239 Ariz. at 4-5, ¶ 12. Mother testified at trial that she and Boyfriend do not have a wedding planned. Though Mother would support it, nothing in the record suggests Boyfriend intends to adopt Child. Mother cites Bobby G. v. Arizona Department of Economic Security, 219 Ariz. 506, 511, ¶ 15 (App. 2008), for her proposition that "the absence of an adoption plan does not preclude a best interest finding." In that case, the foster parents wanted to adopt the children even though there was no specific adoption plan. Id. Here, Mother only stated adoption "would be appropriate if [Boyfriend] wanted to take on the responsibility."
¶24 JS-500274 is more analogous. In that case, the child's mother sought to sever the father's rights so that her parents would be guardians in case anything happened to her. 167 Ariz. at 3, 7. The mother also wanted to ensure a future husband could adopt the child. Id. at 7. The Arizona Supreme Court held that those inchoate plans were "too speculative" to "show any present benefit to [the child]." Id.
¶25 Mother argues that unlike the child in JS-500274, Child has become emotionally attached to a father figure, Boyfriend. But the issue is what benefit Child gains from severance. Mother has no current plans to marry Boyfriend, and there is no evidence Boyfriend plans to adopt Child. Child's relationship with Boyfriend is not affected by severance. While an adoptive placement is not necessary to find severance serves a child's best interests, when, as here, there is no evidence of a benefit to the child from severance, the lack of an adoptive placement is relevant to our analysis.
¶26 The circumstances in this case, while unfortunate, are not unusual. If the bonds children form with their parents' romantic partners were sufficient to permit severance, then many family cases would become eligible for severance -- a result we conclude is neither consistent with Arizona's statutory scheme nor sufficiently respectful of the fundamental nature of parental rights. In these cases, the family court is able to protect the best interests of children through appropriate orders concerning legal decision-making and parenting time.
CONCLUSION
¶27 For the foregoing reasons, we vacate the juvenile court's severance decree.