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
FILED BY CLERK
AUG -5 2010
COURT OF APPEALS
DIVISION TWO
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
MIGUEL M., Sr.
Appellant,
v.
NICOLE S., MIGUEL M., Jr.,
and ANGEL NICOLE M.,
Appellees.
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2 CA-JV 2010-0041
DEPARTMENT B
MEMORANDUM DECISION
Not for Publication
Rule 28, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. S190935
Honorable Hector E. Campoy, Judge
AFFIRMED
Joan Spurney Caplan
Nuccio & Shirly, P.C.
By Salvatore Nuccio
V Á S Q U E Z, Presiding Judge.
Tucson
Attorney for Appellant
Tucson
Attorneys for Appellees
Miguel M., Jr. and Angel Nicole M.
¶1
Appellant Miguel M., Sr., appeals the juvenile court’s March 18, 2010
order terminating his parental rights to his fourteen-year-old son, Miguel M., Jr., and his
twelve-year-old daughter, Angel M., on the ground of abandonment, pursuant to A.R.S. §
8-533(B)(1).
Miguel does not challenge the court’s finding that he abandoned the
children, as the children’s mother, Nicole S. alleged in the petition she filed. His sole
argument on appeal is that there was insufficient evidence to support the court’s finding
that severance of his parental rights was in his children’s best interests. For the following
reasons, we affirm.
¶2
Because Miguel challenges only the juvenile court’s finding that
termination of his rights was in the children’s best interests, we limit our discussion
accordingly. To terminate parental rights, a juvenile court must find that at least one
statutory ground for termination exists and that termination of the parent’s rights is in the
child’s best interests. § 8-533(B) (enumerating grounds). Although a specific statutory
ground for termination must be proven by clear and convincing evidence, only a
preponderance of the evidence is required to establish that severance will serve the
child’s best interests. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz.
279, ¶ 41, 110 P.3d 1013, 1022 (2005). We will accept the juvenile court’s findings of
fact if there is reasonable evidence in the record to support those findings, and we view
the evidence in the light most favorable to upholding the court’s order. Denise R. v. Ariz.
Dep’t of Econ. Sec., 221 Ariz. 92, ¶¶ 4, 9-10, 210 P.3d 1263, 1264-66 (App. 2009).
¶3
In its under-advisement ruling, the juvenile court wrote:
[Nicole] seeks termination to avoid a situation in which the
children could be placed in the custody of their father should
she become incapacitated. There would be a detriment to the
children should such a contingency occur in that the children
would be hostile and opposed to any such occurrence. . . . The
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children have maternal relatives who could assume custodial
or parental duties should the mother be otherwise unable to
function in her present capacity during the next six years of
the children’s minority. It is also in the best interests of the
children that they be allowed closure to the relationship with
their father due to the protracted period of abandonment to
which they have been exposed and through which they have
been impacted deleteriously.
¶4
Relying on In re Maricopa County Juvenile Action No. JS-500274, 167
Ariz. 1, 5, 804 P.2d 730, 734 (1990), Miguel argues that “[t]he evidence presented at the
severance hearing on the issue of best interests showed neither significant benefit or
detriment, was speculative and conclusory, and was insufficient to prove this necessary
element of the termination requirements by a preponderance of the evidence[.]” In
Maricopa County Juv. Action No. JS-500274, a mother sought termination of a father’s
rights to the couple’s three-and-a-half-year-old son on the ground of abandonment, “so
she could name her parents in her will as guardians . . . . [and because,] in case she
married, she wanted her future husband to be able to adopt” the child. Id. at 3, 804 P.2d
at 732. Our supreme court concluded the record did not support the juvenile court’s
determination that severance was in the child’s best interests and reversed the termination
order. Id. at 8, 804 P.2d at 737. Stating, “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,” the court found the potential benefits the mother had
suggested were “too speculative” and she had thus “fail[ed] to show any present benefit”
to her child would result from termination. Id. at 5, 7, 804 P.2d at 734, 736. The court
continued,
There is evidence that [the child] knows his father. There is
no evidence that [the child] feared or hated his father or that
he has become emotionally attached to another paternal
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figure. We cannot hold that there is sufficient evidence to
terminate when the record is entirely devoid of any
explanation of what [the child] will gain or lose.
Id. at 8, 804 P.2d at 737.
¶5
We disagree with Miguel that the facts in Maricopa County Juvenile Action
No. JS-500274 “are sufficiently close” to those here that we must regard the case as
“controlling precedent.” In that case, the juvenile court terminated a father’s parental
rights to a toddler whose interests were not represented by independent counsel in the
proceeding. Id. In contrast here, Miguel, Jr. and Angel are old enough to express their
own interests and are represented by counsel.
As noted in the court’s order, the
children’s attorney and the counselor who prepared a social summary for the court
reported that both children had expressed anxiety about having to maintain any
relationship with a father they had not seen for eight years. Cf. In re Maricopa County
Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988) (termination
not in best interests of children when mother’s abandonment had no “negative effect on
the children” and experts agreed visitation with mother was beneficial to children).
¶6
The testimony of the counselor who interviewed Miguel, Jr. and Angel
amply supports the juvenile court’s best interests finding. When the court asked whether,
if Miguel’s rights were not terminated, there would be any harm in allowing the children
“to explore their relationship with their father,” the counselor responded that the children
were “really closed” to accepting “any type of relationship with their father.” She opined
that if Miguel were ever to be awarded custody, the children “would not go and if they
were forced to live [with him], they would run.”
Although Miguel challenges the
credibility of these statements and asserts “it could reasonably be assumed that the
children had been encouraged by their mother to display hostility to their father,” the
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court, “as the trier of fact in a termination proceeding, is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make appropriate
findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205
(App. 2002). We do not reweigh the evidence on appeal. Id. ¶ 12.
¶7
Nor can we say the juvenile court erred in finding the children’s anxiety
about retaining a relationship with Miguel was detrimental to them, or in finding they
would benefit emotionally from “closure” of the long-abandoned relationship. Sufficient
evidence thus supports the court’s determination that Miguel, Jr. and Angel will benefit
from termination of Miguel’s parental rights and that termination is in their best interests.
Accordingly, we affirm the court’s March 18, 2010 order.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
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