Opinion
No. 1 CA-JV 12-0253
03-26-2013
MARK K., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, AIDAN O., Appellees.
Robert D. Rosanelli Attorney for Appellant Mark K. Thomas C. Horne, Attorney General By Nicholas Chapman-Hushek, Assistant Attorney General Attorney for Arizona Department of Economic Security
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz.R.P. Juv. Ct.;
Rule 28 ARCAP
Appeal from the Superior Court in Maricopa County
Cause No. JD20883
The Honorable Larry Grant, Judge
AFFIRMED
Robert D. Rosanelli
Attorney for Appellant Mark K.
Phoenix Thomas C. Horne, Attorney General
By Nicholas Chapman-Hushek, Assistant Attorney General
Attorney for Arizona Department of Economic Security
Phoenix GEMMILL, Judge ¶1 Mark K. ("Father") appeals the juvenile court's order terminating his parental rights to his son, Aidan. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of Aidan, who was born on August 28, 2011. The child's maternal grandmother ("Grandmother") and her boyfriend have cared for Aidan since birth. On October 5, 2011, the Arizona Department of Economic Security ("ADES") filed a petition alleging that Aidan was a dependent child. At the preliminary protective hearing, the juvenile court approved Aidan's placement with Grandmother and offered services to Father including substance-abuse treatment and urinalysis testing. On January 30, 2012, the juvenile court found Aidan dependent and approved a case plan of family reunification. ¶3 In April 2012, the Foster Care Review Board ("FCRB") found that Grandmother's home was "safe, appropriate, and least restrictive." The report noted that Grandmother and her boyfriend had completed foster-care Model Approach to Partnerships in Parenting training and that she was interested in adoption. ¶4 Meanwhile, Father pled guilty to acquisition or administration of narcotic drugs and was sentenced to seven and a half years in prison in May 2012. ADES then moved to terminate Father's parental rights on the statutory grounds of his sentence duration and neglect to remedy the circumstances causing the child's out-of-home placement. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(4), (B)(8)(b) (Supp. 2012). At a hearing on September 27, 2012, the juvenile court terminated Father's parental rights to Aidan on both statutory grounds, finding that termination served Aidan's best interests because it would further the plan of adoption and Father was not able to care for the child while incarcerated. ¶5 Father timely appealed the order. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007) and 12-120.21(A)(1) (2003).
Mother's parental rights were previously terminated on August 8, 2012.
ANALYSIS
¶6 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of at least one statutory ground for severance and a preponderance of evidence that termination is in the best interests of the child. A.R.S. §§ 8-533(B), -537(B) (2007); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). The juvenile court is in the best position to make credibility determinations, weigh the evidence, and make appropriate findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). ¶7 Accordingly, we will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find the essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009). We view the evidence in the light most favorable to upholding the juvenile court's order. Id. ¶8 Father's only argument on appeal is that the termination of his parental rights was not in the best interests of the child. "To establish that termination is in the child's best interests, the court must find either that the child will benefit from termination of the relationship or that the child would be harmed by continuation of the relationship." James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998). ¶9 First, the record supports the juvenile court's determination that Aidan would benefit from the termination of Father's parental rights. Even if a specific adoption plan is not finalized, termination benefits the child if it makes the child "adoptable" and thereby available for the stability an adoption would provide. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994). Here, case manager Javier Herrera testified that Aidan is adoptable. Termination also benefits the child when an existing placement, rather than the parent, has been meeting the child's needs. Maricopa Cnty. Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994). Grandmother and her boyfriend have cared for Aidan since birth, as the FCRB acknowledged, and Herrera testified that all Aidan's basic needs had been met there. The stable home that Grandmother provides and her willingness to adopt support the finding that termination would benefit the child. ¶10 Father claims that adoption would not be in Aidan's best interests because it would leave him without a father figure. Weighing a particular placement against other hypothetical placements, however, is not the role of the court in determining the child's best interests. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). Additionally, the record does not support Father's argument. The FCRB found that Grandmother's boyfriend was "as involved with Aidan as a grandfather can be," picking Aidan up from daycare and completing foster-care training with Grandmother. The juvenile court had ample evidence to determine that termination of Father's rights would benefit Aidan. ¶11 Alternatively, the record also supports the court's finding that Aidan would be harmed by a continuation of the relationship. When parental unfitness that detrimentally affects a child's well-being has not been remedied, continuation of the relationship may have such negative consequences that severance is warranted. Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158, 781 P.2d 634, 636 (App. 1989). Also, "[i]n most cases, the presence of a statutory ground will have a negative effect on the children." Maricopa Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988). Here, Father had been regularly using drugs since he was a teenager, but he never submitted to urinalysis tests or participated in the substance-abuse treatment offered to him during Aidan's dependency. Father does not contest the statutory grounds for the termination - his seven-and-a-half-year prison sentence and his neglect or refusal to remedy the circumstances causing Aidan's out-of-home care. These grounds are of the type that by their existence, the negative impact on the child is apparent. ¶12 Case manager Herrera testified that Father could not care for Aidan now or upon his release in 2019. Herrera concluded that because Father could not provide the emotional support Aidan needs from prison, a termination was in the child's best interests. Father contended that he will get out of prison a rehabilitated man ready to be a better person. However, the juvenile court considered his previous fraudulent activity to weigh his credibility and determined that Father was unlikely to engage in services that would address his substance-abuse problems and improve his parenting. Even if Father does address his problems, he will be incarcerated until 2019 and cannot provide those parenting skills now. The totality of this evidence was sufficient to find that a continuation of the relationship would harm Aidan. ¶13 Based on the evidence, the juvenile court permissibly found by a preponderance of the evidence that termination was in Aidan's best interests.
CONCLUSION
¶14 Because the record supports the juvenile court's finding that termination of Father's parental rights would be in the best interests of the child, we affirm the termination.
_________________
JOHN C. GEMMILL, Presiding Judge
CONCURRING: _________________
JON W. THOMPSON, Judge
_________________
DONN KESSLER, Judge