ANGEL C. v. JESSICA M. ET AL.
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ANGEL C., Appellant, v. JESSICA M., ALEXANDRIA G., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-JV 12-0020 DEPARTMENT D MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv.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. JS506835 The Honorable Raymond P. Lee, Judge AFFIRMED Christina Phillis, Maricopa County Public Advocate By Suzanne Sanchez Attorney for Appellant Robert D. Rosanelli Attorney for Jessica M. Mesa Phoenix G E M M I L L, Judge ¶1 Angel C. ( Father ) appeals the juvenile court s order terminating his parental rights to his daughter, Alexandria G. ( Child ), on grounds of abandonment pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1) (Supp. 2011). 1 For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Child was born in early 2005 in Maricopa County. Father and Jessica M. ( Mother ) resided with one another before Child was born, at the time of birth, and for a short period of time after Child was born. Mother since her shared residence Mother or Child. Child has continuously resided with birth. in Father, Summer 2005 however, and moved never again out of lived the with For a short period of time, Father continued to visit Child for approximately one hour at a time, up to five times per week. ¶3 Father has not visited since September 8, 2005. or communicated with Child On that day, Father visited Child outside of Mother s residence and did not return Child to Mother at the agreed upon time. Subsequently, Mother contacted the police and insisted that Father obtain a court order specifying any future awareness filing visitation. that with Although visitation the court, he with did Father Child not may acknowledged be attempt established to utilize his by the services of the court or take any legal action to see Child. 1 Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question. 2 Father has, however, paid child support by wage assignment as ordered by the court in April 2006. 2 ¶4 In March 2011, Mother filed a petition to terminate Father s parental rights on the ground of abandonment. Mother asserted that termination was in Child s best interest because Mother s fiancé, Daniel, who had provided care and support for Child since she was one year old, desired to adopt Child after the parties September October parental marriage. 13, 2011. 17, 2011, rights, Mother After the a and were married on severance contested juvenile finding Daniel hearing on court Father had terminated abandoned Father s Child and termination was in Child s best interests. ¶5 Father timely appeals and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2011). ANALYSIS ¶6 The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the witnesses, and make appropriate findings. credibility of Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). 2 Therefore, this court will The court order issued April 19, 2006 required child support payments in the amount of $312.00 monthly, with $2,985.00 in arrearages payable in the amount of $25.00 per month. 3 accept the juvenile court s findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous. Id. The juvenile court s interpretation of a statute, however, will be reviewed de novo. Kimu P. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 39, 43, ¶ 13, 178 P.3d 511, 515 (App. 2008). ¶7 To terminate parental rights, a juvenile court must find the existence of at least one statutory ground provided in A.R.S. § 8-533 and that termination is in the best interest of the child. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). While statutory grounds for termination require clear and convincing evidence, only a preponderance of the evidence is required to establish that severance will serve the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 288, ¶ 41, 110 P.3d 1013, 1018, 1022 (2005). ¶8 On appeal, Father does not contest court s finding that he abandoned Child. however, that termination of insufficient his evidence parental juvenile Father does argue, exists rights the serves to prove that Child s best interests. ¶9 It is true that a finding of abandonment cannot be equated with a finding of best interest. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). 4 Thus, the court will not assume that a child will benefit from termination simply because [s]he has been abandoned. 6, 804 P.2d at 734-35. The termination of Id. at 5- the parental relationship, however, is in the best interests of the child if the child will benefit from the termination or would be harmed if the relationship continued. James S. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998). ¶10 Father argues that although an adoption plan may be a factor in determining a child s best interests, it may not be based solely on the adoption plan. We agree that, in the absence of a statutory ground for severance, a willing adoptive parent is immaterial. Maricopa Cnty. Juv. Action No. JS-500274, 167 P.2d Ariz. at 5, 804 at 734. In this case, abandonment was found and is uncontested on appeal. however, Thus, the required affirmative benefit for best interests analysis may be satisfied if sufficient evidence exists proving a current adoption plan is in place or even that the child is adoptable. Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004). ¶11 An Here, a current adoption plan is in place for Child. adoption home study was conducted in October recommending a severance so that Daniel may adopt Child. 2011 The report recognized that Daniel s commitment to Child appeared to be sincere and permanent and that an opportunity for adoption 5 would provide physical security for the child. Mother testified that her husband, Daniel, has been the child s only father figure since the child was very young. The court also received testimony from Daniel of his intention to adopt and to continue to support Child as he has since May 2006. ¶12 Notwithstanding the adoption plan, the court erred in terminating his rights. an opportunity for Child to rebuild a Father maintains Father claims that relationship with her biological father will provide her an additional benefit while she maintains Father argues the current that his benefits of relationship her home with with Child Mother. cannot be lawfully terminated simply due to Child s well-being in the care of other people. See Mary Ellen C. v. Ariz. Dept. of Econ. Sec., 193 Ariz. 185, 194, ¶ 43, 971 P.2d 1046, 1055 (App. 1999). ¶13 There is ample evidence here that Child would benefit from termination of Father s parental rights. Daniel is willing participating interests. 50. in to adopt parenting her her and supports that the The fact that he is finding currently of best See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at Therefore, sufficient evidence in the record supports the juvenile court s finding that Mother proved by a preponderance of the evidence that terminating Father s parental rights is in the best interests of Child. 6 CONCLUSION ¶14 We affirm the juvenile court s termination of Father s parental relationship with Child. _____/s/_________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: _____/s/_________________________ PETER B. SWANN, Judge _____/s/_________________________ ANDREW W. GOULD, Judge 7
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