James P. v. Dcs, J.M. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAMES P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.M., Appellees.
No. 1 CA-JV 16-0420
FILED 4-4-2017
Appeal from the Superior Court in Maricopa County
No. JD29733
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee
JAMES P. v. DCS, J.M.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
¶1 James P. (“Father”) challenges the juvenile court’s order
severing his parental rights to his child, JM. For the following reasons, we
affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father is the biological father of JM, born March 21, 2015.
When JM was born, the Department of Child Safety (“DCS”) took JM into
custody because she tested positive for opiates at birth and JM’s mother
(“Mother”)1 was facing allegations of abusing substances and being unable
to care for JM due to domestic violence. At the time, Father’s paternity had
not been established and his whereabouts were unknown.
¶3 Father failed to appear at the dependency hearing without
good cause in September 2015, and the juvenile court found JM dependent.
Father established his paternity to JM approximately five months later.
During the next five months, he failed to contact DCS, and although he
attended one hearing, he did so only after the court added a concurrent case
plan of severance and adoption, arriving at the hearing four minutes before
it ended.
¶4 In July 2016, JM’s guardian ad litem moved to terminate
Father’s parental rights on the grounds of abandonment and JM’s being in
an out-of-home placement for fifteen months. Father failed to appear at the
initial severance hearing two months later. The court found Father had
failed to attend the hearing without good cause and that Father had waived
his right to contest the evidence supporting the grounds for termination.
See Ariz. Rev. Stat. (“A.R.S.”) § 8-535(D) (2016) (allowing court to find
parent has waived parent’s legal rights and admitted the allegations of the
1 Mother consented to adoption of JM and is not a party to this appeal.
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JAMES P. v. DCS, J.M.
Decision of the Court
petition by failing to appear at the initial severance hearing).2 Father
appeared at the one-day severance trial in September 2016 and explained
he had missed the initial termination hearing because he had
misunderstood the date of the trial. However, the juvenile court affirmed
its prior finding that Father failed to appear without good cause and
proceeded with the severance trial.
¶5 At trial, the DCS case manager testified JM was adoptable, she
had been residing in an approved foster care home that was committed to
adopting her, and that even if that placement were to disrupt, she would
still be adoptable going forward. The case manager also stated Father had
never met JM and that severance was in JM’s best interests because it would
provide her with permanency, stability, and care for her special needs.
Father admitted he had never met JM and that based on his
communications with the foster placement, the foster placement was
meeting JM’s needs and was willing to adopt her.
¶6 The juvenile court found DCS had established a prima facie
case, by clear and convincing evidence, that Father abandoned JM by failing
to provide reasonable support and failing to maintain regular contact with
JM for more than six months. See A.R.S. § 8-531(1) (2016) (stating “failure to
maintain a normal parental relationship with the child without just cause
for a period of six months constitutes prima facie evidence of
abandonment”). It concluded Father had failed to rebut the presumption
of abandonment because he did not demonstrate just cause for his failure
to maintain a normal parental relationship with JM for more than six
months. See Universal Underwriters Ins. Co. v. State Auto. & Cas. Underwriters,
108 Ariz. 113, 115 (1972) (clarifying “whenever evidence contradicting [a]
presumption is introduced, the presumption vanishes”). Finally, the court
concluded severance was in JM’s best interests because severance would
protect JM from Father’s abandonment and provide her with an
opportunity to be adopted by a placement who could meet her needs and
provide her with love, stability, and permanency. It noted JM’s “significant
special medical needs that make her especially vulnerable,” and found her
current placement could meet her needs and wished to adopt her.
¶7 Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A) (2016), 12-120.21(A)(1) (2016), and 12-2101(A)(1) (2016).
2 We cite the current version of the applicable statutes unless revisions
material to this decision have since occurred.
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JAMES P. v. DCS, J.M.
Decision of the Court
DISCUSSION
I. Standard of Review
¶8 To terminate parental rights, the juvenile court must find, by
clear and convincing evidence, at least one of the statutory grounds set out
in A.R.S. § 8-533(B). See A.R.S. § 8-533(B) (2016); Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). It must also find DCS has shown
by a preponderance of the evidence that termination is in the best interests
of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). On review,
“we will 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.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002) (citations omitted).
II. Best Interests Findings
¶9 Father challenges the juvenile court’s best interests findings,
arguing: (1) DCS failed to prove severance was in JM’s best interest by a
preponderance of the evidence; (2) the court did not find Father was unable
to parent JM or meet her special needs; and (3) the court failed to consider
the factors in Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585 (App. 2008)
before severing his parental rights.
¶10 To establish that severance of a parent’s rights would be in a
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 parental relationship. Id. at 587, ¶ 8 (citation and
quotation omitted). In making this determination, the juvenile court may
consider evidence that the child is adoptable or that an existing placement
is meeting the needs of the child. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 19 (App. 2004) (citations omitted).
¶11 As an initial matter, Father’s argument that the court erred by
severing his rights without finding he was unable to parent JM or meet her
special needs fails. The statute does not require such a finding to justify
termination. See A.R.S. § 8-533(B)(1). Similarly, Father’s argument that the
court failed to consider the factors in Lawrence R. fails. Lawrence R. does not
provide mandatory factors for consideration. Instead, it clarifies that
although “a determination that the child is adoptable alone does not require
the fact finder to conclude that severance is in the child’s best interests,”
DCS “may satisfy the best interest requirement if it presents credible
evidence that the child is adoptable.” Lawrence R., 217 Ariz. at 587, ¶ 8
(emphasis added) (citation omitted).
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JAMES P. v. DCS, J.M.
Decision of the Court
¶12 Here, DCS presented credible evidence JM was adoptable.
The DCS case manager testified that JM was adoptable, had been residing
in an approved foster care home that was committed to adopting her, and
that even if that placement were to disrupt, JM would still be adoptable
going forward. Furthermore, the case manager testified severance was in
JM’s best interests because it would provide JM with permanency, stability,
and care for her special needs. See Maricopa Cty. Juv. Action No. JS-501904,
180 Ariz. 348, 352 (App. 1994) (upholding severance when case manager
testified child “would benefit psychologically from the stability an
adoption would provide” even though child did not have an adoptive
placement). This evidence is sufficient to show JM was adoptable,
satisfying the best interests requirement. Because DCS presented credible
evidence JM was adoptable, the juvenile court did not err in severing
Father’s parental rights.
CONCLUSION
¶13 For the foregoing reasons, we affirm the juvenile court’s order
severing Father’s parental rights to JM.
AMY M. WOOD • Clerk of the Court
FILED: AA
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