Erin B. v. Jon F. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ERIN B., Appellant,
v.
JON F., T.F., A.F., X.F., Appellees.
No. 1 CA-JV 18-0414
FILED 3-19-2019
Appeal from the Superior Court in Maricopa County
No. JS518544
The Honorable Cynthia L. Gialketsis, Judge Pro Tempore
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Berkshire Law Offices PLLC, Tempe
By Keith Berkshire, Erica L. Gadberry
Counsel for Appellee Jon F.
ERIN B. v. JON F., et al.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.
H O W E, Judge:
¶1 Erin B. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her children, T.F., A.F., and X.F. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Jon F. (“Father”) are the biological parents of T.F.,
A.F., and X.F. Mother and Father were married in August 1998, and their
first child, T.F., was born in April 2002. According to Father, his relationship
with Mother became “chaotic” after she gave birth to their twins—A.F. and
X.F—and T.F. was diagnosed with autism. Mother and Father separated in
early 2009 and then divorced in November 2010.
¶3 In January 2014, Father petitioned the court to modify orders
regarding legal decision-making authority, parenting time, child support,
and spousal maintenance. In February 2015, Dr. Raymond Branton
performed a court-ordered psychological evaluation of Mother and
submitted a report to the court. Dr. Branton concluded that Mother had
several personality disorders, as well as anxiety and hoarding disorders. He
also noted that Mother’s “significant mental health issues, unhealthy
patterns, and unstable lifestyle may limit [her] ability to properly care for
the children.” The court entered final orders in May 2015, which became
effective in June 2015. The court granted Father sole legal decision-making
authority, designated him as the primary residential parent, and allowed
Mother supervised visits. The court also set forth requirements for Mother
to qualify for unsupervised visits. At a minimum, she had to demonstrate
that she was complying with Dr. Branton’s recommendations outlined in
his report. Those recommendations included engaging in weekly
individual counseling “to address the mental health symptoms, [] cognitive
distortions, and problematic behavioral patterns” identified in the report
and providing “[q]uarterly progress reports from the counselor . . . to the
[c]ourt[.]” Mother never sought to modify the court’s final orders, including
the child support award.
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Decision of the Court
¶4 Despite the parenting time order, Mother did not exercise her
right to supervised parenting time and requested only one supervised visit
through email in the years that followed. According to Father, Mother also
never sent any gifts, photos, or letters, and she failed to satisfy her child
support obligations.
¶5 In July 2017, Father petitioned the juvenile court to terminate
Mother’s parental rights, citing abandonment under A.R.S. § 8–533(B)(1)
and mental illness under A.R.S. § 8–533(B)(3) as grounds for termination.
As the termination hearing approached, Mother’s tax refund was
intercepted to pay delinquent child support. She was also found in
contempt of court for failure to pay child support arrears that accrued
between June 2015 and November 2017. The court ordered that she not be
released until she remitted a purge payment of $5,000. In March 2018, she
paid $5,000 to purge the contempt order. According to Father, “that was the
first time Mother voluntarily paid any support[.]” He reported that
between May 2015 and March 2018, he had only received two child support
payments from Mother, which were acquired through “garnishment” or
other involuntary means.
¶6 At the contested July 2018 termination hearing, Mother was
asked why she had not provided the court with any of the counseling
reports that she was ordered to submit to have unsupervised contact with
the children. She explained that she had experienced “setbacks” because
she had been focusing on an ongoing dependency proceeding the
Department of Child Safety had brought regarding a child that was not at
issue in the present matter, X.B. Mother then testified that although she did
not provide any counseling reports to the court, she had been participating
in counseling through TERROS—which she said helped her overcome an
“alcohol disorder.” She later acknowledged, however, that she had not
provided her counselor with Dr. Branton’s full psychological evaluation
report.
¶7 Father testified about the children’s recent interactions with
Mother. According to Father, Mother had only one phone conversation
with A.F., who was upset by that conversation and refused thereafter to
speak to Mother. Father also testified that X.F. was upset after Mother’s
most recent phone call, during which he learned that Mother had
permanently moved to California and had another child.
¶8 Father then testified about matters concerning the best
interests of the children. According to Father, he petitioned to terminate
Mother’s parental rights because he wanted his fiancée—D.W.—to adopt
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Decision of the Court
the children. He asserted that having Mother’s parental rights terminated
would benefit the children because it would allow D.W. to adopt them and
restore stability in their lives. He testified that D.W. performed parental
duties for the children and had “been the exact figure that a mother should
be[.]” He explained that D.W. had been involved in the children’s
“everyday life” and that she had actively engaged in helping T.F. with his
needs. He specifically mentioned that “[s]he’s part of the [Individual
Education Programs], the [Individual Support Plans], [and] she works with
the therapist[.]”
¶9 D.W. confirmed that she wanted to adopt the children and
that she performed parental duties for the children. She also testified that
she is committed to helping T.F. with his medical needs and in improving
his condition. She testified further that she intends to marry Father “as soon
as this [thing] wraps up[.]”
¶10 A caseworker opined in a social study report that termination
was in the children’s best interests because the children were in a stable
home with Father and D.W. who have been providing—and can continue
providing—for the children’s financial, emotional, and educational needs.
According to the report, D.W. felt “pride” in caring for T.F., A.F., and X.F.,
looked forward to the day she is able to adopt them, and had been helping
raise the children for the past two years.
¶11 Furthermore, the report noted that Mother had no contact
with T.F. since May 2015 and that she had never inquired about any of the
children’s well-being. It also noted that the only contact that Mother had
with the children was one phone call with X.F. and A.F in November 2015
and one additional phone call with just X.F. in February 2017. Moreover,
the report stated that a bond between the children and D.W. “was evident
during the study” and that D.W. was actively involved in the care of T.F.
¶12 The juvenile court terminated Mother’s parental rights under
the statutory ground of abandonment. The court found that Mother had no
physical contact with the children since June 2015 and that her last phone
contact with any of the children was in February 2017. The court noted that
Mother had failed to provide reasonable child support on a regular basis,
recently had a tax refund seized to pay for arrears in her child support, and
had made little effort to satisfy the requirements to have unsupervised
visits with the children. The court further noted that although Mother had
gone to counseling, she “never provided a copy of Dr. Branton’s report
(only providing page 16) to her counselor so that the issues raised by Dr.
Branton could be addressed properly.”
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Decision of the Court
¶13 The court then found that terminating Mother’s parental
rights would be in the children’s best interests. The court reasoned that
termination would benefit the children because it would allow D.W. to
adopt them. The court noted that D.W. had assumed a “maternal role” in
the children’s lives, had been fully engaged in addressing T.F.’s special
needs, and had been actively involved in providing for the children’s
educational needs. Also, the court found that continuing the parent-child
relationship would be detrimental to the children because Mother was
unable to demonstrate an understanding for why her actions had upset the
children. The court also noted that Mother had neither inquired about T.F.’s
needs nor participated in his care since 2015. Mother timely appealed.
DISCUSSION
¶14 Mother challenges only the juvenile court’s best interests
finding; she does not dispute the finding of abandonment. A juvenile
court’s termination order is reviewed for an abuse of discretion. E.R. v. Dep’t
of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). “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 credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280
¶ 4 (App. 2002). We accept the juvenile court’s factual findings unless no
reasonable evidence supports them and will affirm a termination order
unless it is clearly erroneous. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz.
506, 508 ¶ 1 (App. 2008).
¶15 Terminating parental rights is in the children’s best interests
if the children will benefit from the termination or will be harmed if the
relationship continues. Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179 ¶ 20 (App. 2014). In determining whether the children will benefit from
termination, relevant factors include whether the placement is meeting the
children’s needs, an adoption plan is in place, and if the children are
adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4 ¶ 12 (2016). “Of course,
a court need not automatically conclude that severance is in a child’s best
interests just because the child is adoptable; there may be other
circumstances indicating that severance is not the best option.” Id. at 4 ¶ 14.
The juvenile court must, therefore, consider the totality of the circumstances
when making a best-interests finding. Dominique M. v. Dep’t of Child Safety,
240 Ariz. 96, 99 ¶ 12 (App. 2016).
¶16 Sufficient evidence supports the juvenile court’s finding that
the children would both benefit from the termination and would be harmed
if the relationship continued. The caseworker that conducted the social
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Decision of the Court
study reported that Father and D.W. had been appropriately providing for
the children’s needs and that the children had a positive relationship with
D.W. Additionally, Father testified that terminating Mother’s parental
rights would benefit the children because it would restore a stable home
environment and allow D.W. to adopt the children. D.W. also expressed her
desire to adopt and stated that she had been performing parental duties for
the children for two years. In contrast, Mother had not seen the children in
several years, had been unable to meet any of the requirements to obtain
unsupervised contact with the children, and her only contact with the
children had upset them. Thus, the record adequately supports the court’s
finding that termination was in the children’s best interests.
¶17 Mother asserts that termination would not benefit the
children because Father and D.W.’s plan to marry was “speculative” and
unsupported by “credible evidence.” We decline to consider Mother’s
assertion because we will not substitute our judgment for that of the
juvenile court about the credibility and weight of witness testimony. See
Jesus M., 203 Ariz. at 282 ¶¶ 4, 12. Moreover, availability of a likely adoptive
parent is only one potential benefit relevant to a best-interests assessment,
and the record here reflects that additional factors sufficiently support the
juvenile court’s determination that terminating Mother’s parental rights
would benefit the children.
¶18 Mother argues that “[D.W.] is not a person who can adopt the
children and the Juvenile Court erred as a matter of law in considering her
as such.” For support, Mother relies on Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376 (App. 1998). That decision, however, is inapposite. In Audra
T., this Court affirmed the juvenile court’s determination that the child’s
best interests favored placing him with his foster family rather than his
paternal grandparents because the grandparents had never established a
relationship with the child; the grandmother visited the child only once
after his removal, the grandfather had no contact with the child, and the
grandparents had not been available to take the child when he was initially
removed from his parents. Id. at 378 ¶ 7. None of these circumstances are
present here. Thus, Mother’s argument fails.
¶19 Next, Mother argues that the juvenile court should have
considered only her current—and not past—conduct in making its
best-interests determination and that the court erred by failing to “articulate
how maintaining her parental rights would be a detriment to the children
currently or in the future.” The record does not support Mother’s argument,
however. The record shows and the juvenile court found that Mother’s
patterns of behavior and complete absence from the children’s lives had
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Decision of the Court
negatively affected the children and that those same patterns and
circumstances persisted at the time of the termination hearing. As of the
termination hearing, Mother had virtually no contact with the children for
many years; her most recent interaction with X.F. had left him distraught;
she had never sent any gifts, letters, or pictures; she had made little or no
effort to visit the children; and she had not provided the children with any
meaningful financial support. Furthermore, the juvenile court found that
Mother had not inquired about T.F.’s needs, had not participated in his care
since 2015, and she recently had a tax refund intercepted to pay for arrears
in her child support. The court’s best-interests determination is therefore
based on “current” evidence, and that evidence adequately supports the
conclusion that maintaining Mother’s parent-child relationship risked
harm to the children.
¶20 Mother nonetheless highlights her testimony that she
participated in counseling services, has a bond with the children,
“overcame alcohol,” and “is ready to begin therapeutic intervention for
visitation and contact.” But in doing so Mother essentially asks this Court
to reweigh the evidence presented at trial, which we will not do. See Jesus
M., 203 Ariz. at 282 ¶ 12 (stating that this Court does not reweigh evidence
on appeal). Thus, the juvenile court did not err in finding that terminating
Mother’s rights would be in the children’s best interests.
CONCLUSION
¶21 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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