Opinion
1 CA-JV 22-0123
12-29-2022
KILEY O., Appellant, v. GORDON O., KARRIE O., R.B., Appellees.
The Rigg Law Firm P.L.L.C., Pinetop By Brett R. Rigg Counsel for Appellant Riggs, Ellsworth & Porter, P.L.C., Show Low By Michael R. Ellsworth Counsel for Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Navajo County No. S0900SV202100022 The Honorable Michala M. Ruechel, Judge AFFIRMED
The Rigg Law Firm P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
Riggs, Ellsworth & Porter, P.L.C., Show Low
By Michael R. Ellsworth
Counsel for Appellees
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
MEMORANDUM DECISION
McMURDIE, JUDGE:
¶1 Kiley O. ("Mother") appeals the superior court's order terminating her parental rights to her child, Richard. We find no reversible error and affirm.
We use a pseudonym to protect the identity of the child.
FACTS AND PROCEDURAL BACKGROUND
"We review an order terminating a parent's relationship with his or her child . . . . in the light most favorable to sustaining the superior court's ruling." Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
¶2 Mother and David B. ("Father") are the biological parents of Richard, born in 2009. Father relinquished his parental rights to Richard and is not a party to this appeal. When Richard was about three years old, Mother began an abusive relationship and remained with the abuser for another nine years. Mother also started using illegal drugs at a very young age, and although she was sober for a while, she began abusing them again from 2018 to 2021. Mother completed rehabilitation programs twice in the past four years but relapsed after completing the programs.
¶3 In August 2018, Mother dropped Richard off at her parents' ("Grandparents") home just before the school year and did not return for him. The superior court granted Grandparents sole legal decision-making for Richard with Mother's consent under Arizona Rule of Family Law Procedure 69. The order allowed Mother to have weekly parenting time while Grandparents had the discretion to require weekly drug tests and withhold visitation if Mother tested positive or failed to test. Although Grandparents asked Mother to drug test several times, she tested only twice, and one test was positive for a controlled substance.
¶4 Around this time, Grandparents petitioned to terminate Mother's parental rights on the abandonment, neglect, and chronic substance-abuse grounds. In response, Mother began regular methadone treatment, and despite her failure to drug test, also exercised regular parenting time with Richard. The court, therefore, denied Grandparents' petition in July 2020.
¶5 Over the next year, Mother continued to abuse drugs and only exercised occasional parenting time. In August 2021, Mother pled guilty to drug paraphernalia possession, and the court sentenced her to prison.
¶6 The next month, Grandparents again petitioned to terminate Mother's parental rights under the abandonment, neglect, and substance-abuse grounds. A.R.S. § 8-533(B)(1)-(3). After a trial, the court granted the petition on abandonment and chronic substance abuse, and Mother appealed. This court has jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶7 Mother challenges the court's finding that severance was in Richard's best interests. Along with finding a statutory ground for termination, the superior court must also determine what is in the child's best interests by a preponderance of the evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Once the court finds a parent unfit under at least one statutory ground for termination, "the interests of the parent and child diverge." Id. at 286, ¶ 35. The court then proceeds to balance the unfit parent's "interest in the care and custody of his or her child . . . . against the independent and often adverse interests of the child in a safe and stable home life." Id. "[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." Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). Courts "must consider the totality of the circumstances existing at the time of the severance determination, including the child's adoptability and the parent's rehabilitation." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶8 A court may find a child would benefit from termination if there is an adoption plan or if the child is adoptable, Alma S., 245 Ariz. at 150-51, ¶¶ 13-14, or if the child "would benefit psychologically from the stability an adoption would provide." Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). But the court may find a child would be harmed by the continuation of the parent-child relationship "where there is clear and convincing evidence of parental unfitness which has not been remedied notwithstanding the provision of services by [DCS] and which detrimentally affects the child's well-being." Pima County Juv. Action No. S-2460, 162 Ariz. 156, 158 (App. 1989).
¶9 Mother argues the superior court abused its discretion by making its best-interests finding because there was no evidence that continuing the parent-child relationship would harm Richard. But the court need only find either "how the child would benefit from a severance or be harmed by the continuation of the [parent-child] relationship." See JS-500274, 167 Ariz. at 5.
¶10 Here, the superior court found that Richard would benefit from severance for three reasons. First, Grandparents intended to adopt Richard, providing him stability and permanency. Second, the court found that Grandparents provided Richard with a loving and nurturing home environment, and he was thriving in their care. Finally, the court found that adoption by Grandparents would allow Richard to maintain relationships with extended family members. Reasonable evidence supports these findings.
¶11 Still, Mother contends the custody order sufficiently protected Richard, and because of it, the record is void of any evidence of how his life would change if the court did not terminate her rights. Similarly, Mother asserts that "there is no evidence as to how adoption would provide more stability than the [custody order] already had."
¶12 Contrary to Mother's argument, the record shows that adoption would permanently allow Richard to remain in a stable home. Grandmother testified she wanted to adopt Richard to protect him from the instability that Mother's drug use causes, including her inability to meet his needs. She also testified that although the custody order gave Richard some protection, Mother could modify or revoke it in the future, undermining Richard's sense of permanency. The possibility of modification could cause Richard anxiety, given Mother's ongoing struggle with substance abuse.
¶13 Indeed, Mother began abusing substances at a very young age, and her most recent struggle with drugs has lasted for about four years. Although she participated in rehabilitation programs, she relapsed after completing the programs. And the record shows Mother's ex-husband abused substances, was abusive towards Mother and Richard, and often limited Mother's contact with Richard or refused to allow Richard's half-sibling to visit him. Even so, Mother remained in a relationship with the abuser for nine years.
¶14 Mother testified that she is no longer in that relationship, but she has been unable to sever ties to her ex-husband. And she maintained contact with him while incarcerated. Mother's drug use and the volatile relationship have greatly affected her ability to be present and meet Richard's needs. Thus, the court's finding that Grandparents' adoption of Richard would provide him with stability and permanency is supported by reasonable evidence. The record also shows that adoption would benefit Richard more than the custody order by providing him permanency.
¶15 Mother next argues the court ignored her bond with the child. The court expressly found, however, that Richard "continues to have a strong bond with his mother." It considered their bond but found that other factors favored severance. See Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (A bond between parent and child is a non-dispositive factor to consider when determining a child's best interests.); Mary Lou C. v. Ariz. Dep't of Econ. Sec, 207 Ariz. 43, 47, ¶ 8 (App. 2004) ("[T]his court will not reweigh the evidence but will look only to determine if there is evidence to sustain the court's ruling.").
CONCLUSION
¶16 We affirm.