Bonna D. v. Chelsea M., P.D. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BONNA D., Appellant,
v.
CHELSEA M., P.D., Appellees.
No. 1 CA-JV 22-0079
FILED 8-30-2022
Appeal from the Superior Court in Maricopa County
No. JS519713
The Honorable Cynthia L. Gialketsis, Judge Pro Tempore
AFFIRMED
COUNSEL
Janet S. Story, Attorney at Law, Scottsdale
By Janet S. Story
Co-Counsel for Appellant
De La Ossa and Ramos, PLLC, Phoenix
By Edwin Ramos
Co-Counsel for Appellant
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellee Chelsea M.
BONNA D. v. CHELSEA M., P.D.
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Maria Elena Cruz and Judge Angela K. Paton joined.
S W A N N, Judge:
¶1 Bonna D. (“Grandmother”) appeals from the juvenile court’s
order denying her petition to terminate Chelsea M.’s (“Mother’s”) parental
rights to P.D. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 P.D. was born to Mother and Todd D. (“Father”) in December
2009. In June 2012, Grandmother took temporary custody of P.D. after
Mother and Father were served an eviction notice and their electricity was
shut off. Mother and Father consented for Grandmother to be P.D.’s
permanent guardian in 2013. In May 2018, Grandmother and P.D. moved
to Arizona while Mother remained in Ohio.
¶3 During P.D.’s permanent guardianship, Mother did not
provide any financial support, went long periods of time without
contacting P.D. and failed to send P.D. cards, gifts, or letters, aside from one
gift in December 2021.
¶4 In September 2020, Grandmother petitioned to terminate
Mother and Father’s parental rights to P.D. As to Mother, the petition
alleged that she abandoned P.D. pursuant to A.R.S. § 8-533(B)(1) and that
termination of Mother’s parental rights was in P.D.’s best interests. Father
consented to termination.1 After a hearing, the court denied the petition,
leaving the permanent guardianship intact. Although the court found that
Grandmother proved by clear and convincing evidence Mother had
abandoned P.D., the court found termination was not in P.D.’s best
interests.
¶5 Grandmother appeals.
1 Father died shortly after he consented to termination.
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Decision of the Court
DISCUSSION
¶6 Parents have a fundamental right to the care and custody of
their children. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). But these
rights are not absolute, and the court may terminate parental rights if it
finds clear and convincing evidence of one of the statutory grounds for
termination, and finds by a preponderance of the evidence that termination
is in the best interests of the child. A.R.S. §§ 8–533(B), –537(B); Kent K., 210
Ariz. at 281–82, 288, ¶¶ 7, 41.
¶7 On appeal, Grandmother challenges the court’s finding that
termination of Mother’s parental rights was not in P.D.’s best interests. We
review the court’s decision on a petition to terminate parental rights for an
abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004). Because the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts,” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004), we will affirm the court’s decision unless there is no
reasonable evidence to support it. Xavier R. v. Joseph R., 230 Ariz. 96, 100,
¶ 11 (App. 2012).
¶8 The court considers the totality of the circumstances when
conducting the best-interests inquiry. Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 150, ¶ 1 (2018). The court balances the parent’s interests against
the child’s interests, but the child’s best interests are paramount. Timothy
B. v. Dep’t of Child Safety, 252 Ariz. 470, 478, ¶¶ 30–31 (2022). The court’s
“primary concern in the best-interests inquiry is the ‘child’s interest in
stability and security.’” Id. at ¶ 31 (quotation omitted). Termination of
parental rights is in the child’s best interests if the child would benefit from
the termination or would be harmed if the relationship continued. Alma S.,
245 Ariz. at 150–51, ¶ 13.
¶9 Factors that weigh in favor of whether termination is in the
child’s best interests include whether: 1) an adoptive placement is
immediately available, 2) the existing placement is meeting the needs of the
child, and 3) the child is adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1,
3–4, ¶ 12 (2016). Adoptability alone, however, does not automatically mean
termination is in the child’s best interests. Id. at 4, ¶ 14.
¶10 Grandmother contends that she met her burden of proving
termination of Mother’s parental rights was in P.D.’s best interests because
P.D. is adoptable. The court heard testimony that Grandmother sought to
terminate Mother’s parental rights because she was interested in and
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Decision of the Court
immediately available to adopt P.D., and P.D. wanted Grandmother to
adopt him. Grandmother also wanted to ensure P.D. went to her daughter
and son-in-law, if she became unable to care for him, rather than to Mother.
Grandmother testified that P.D.’s life was stable, and the social study
specialist opined that Grandmother was meeting P.D.’s needs.
Grandmother also testified that she would continue to allow Mother to
have contact with P.D. if her parental rights were terminated. Mother
testified that her relationship with P.D. was estranged and she had
difficulty working with Grandmother to schedule visitation.
¶11 Mother, Grandmother, the social study specialist, and P.D. all
agreed that P.D. would benefit from continuing his relationship with
Mother. The court found that P.D. would benefit from a continued
relationship with Mother but was concerned that Grandmother would not
continue the relationship if it terminated Mother’s parental rights. The
court did not err in determining that the adoptability of P.D. was not
dispositive in denying Grandmother’s petition.
¶12 Grandmother next argues that the court’s denial of her
petition to terminate Mother’s parental rights could harm P.D. According
to Grandmother, she wanted to adopt P.D. because he expressed fears that
Mother could take him from Grandmother’s care at any time. Mother
testified that she was not going to remove P.D. from Grandmother’s care,
she just wanted to foster a relationship with him. Although Mother filed a
motion to modify child custody in 2017 when Grandmother sought to move
P.D. from Ohio to Arizona, Mother voluntarily dismissed her petition
because she was unable to afford her attorney. Mother has not otherwise
interfered with P.D.’s permanent guardianship. The court acted within its
discretion in finding that continuing P.D.’s relationship with Mother did
not present a threat to his stability and security.
¶13 Grandmother asks us to reweigh the evidence on appeal
because the court credited Mother’s testimony that she would not remove
P.D. from Grandmother’s care, but rejected evidence that Grandmother
would allow P.D. to continue his relationship with Mother after
termination. The juvenile court was in the best position to assess the
credibility of the witnesses and weigh the evidence, and we will not disturb
its findings on appeal. Oscar O., 209 Ariz. at 336, ¶ 14 (“We are mindful that
our function on review is not to reweigh the evidence before the juvenile
court or supersede its assessment of the evidence with our own.”).
¶14 Grandmother contends that because Mother provided
conflicting evidence on the types of drugs she used in the past, she was not
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Decision of the Court
credible and could harm P.D. by exposing him to drugs. But Mother
testified that she had been sober since December 2015, apart from marijuana
use eight months prior to the termination hearing. The court acted within
its discretion in crediting that testimony and finding that P.D. would not be
harmed by a continuation of his relationship with Mother.
¶15 Finally, Grandmother argues that Mother has not made
sufficient efforts to repair her relationship with P.D. during his permanent
guardianship; therefore, termination was in his best interests. See Maricopa
Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577–78 (App. 1994). Although
the court found that Mother’s minimal efforts to support and contact P.D.
constituted abandonment, see A.R.S. §§ 8-531(A)(1), -533(B)(1), it found that
P.D. would benefit from continuing his relationship with Mother. The court
cannot “assume that a child will benefit from a termination simply because
he has been abandoned.” Demetrius L., 239 Ariz. at 4, ¶ 14. We discern no
abuse of discretion.
CONCLUSION
¶16 The record contains reasonable evidence to support the
court’s decision that termination of Mother’s parental rights was not in
P.D.’s best interests. We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
5