In Re Term of Parental Rights as to K.R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO K.R., K.R.
No. 1 CA-JV 22-0172
FILED 11-22-2022
Appeal from the Superior Court in Maricopa County
No. JS520115
The Honorable Cynthia L. Gialketsis, Judge Pro Tempore
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
R.J. Peters & Associates, P.C., Phoenix
By Rich J. Peters
Counsel for Appellee
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
IN RE TERM OF PARENTAL RIGHTS AS TO K.R. et al.
Decision of the Court
M C M U R D I E, Judge:
¶1 Paul R. (“Father”) appeals from the juvenile court’s order
terminating his parental relationship with his two children. We find no
error and affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Father and Leana I. (“Mother”) are the parents of Dara,2 born
in 2011, and Sam, born in 2013. Sometime after 2013, the parents separated,
and the children remained with Mother. Eventually, the superior court
ordered joint legal decision-making and parenting time. Based on financial
information provided by Father, the court ordered him to pay monthly
child support.
¶3 According to Mother, Father would visit the children at
various times but then drop out of their lives. In August 2017, based on
evidence provided by Mother, the superior court ordered Father to file a
copy of his driver’s license and participate in a hair follicle drug test. When
he did not do so, the court reduced his parenting time to every other
weekend until he tested negative for illegal substances for three straight
months. Father did not complete further testing, and, as he reported in the
social study prepared for the termination trial, he then “dropped out [of the
children’s lives] and worked on himself.”
¶4 Between March 2018 and October 2021, Father had no contact
with the children and provided them with no cards, gifts, or letters. Also,
Father only made three child support payments between 2019 and 2021.
Further, although Mother had not changed her contact information, Father
only asked to see the children once. Mother began a new relationship with
her now-fiancé.
¶5 In October 2021, Father showed up at Mother’s house to take
the children for a weekend visit. Sam did not recognize Father at first. Dara
1 “We review an order terminating a parent’s relationship with his or
her child for an abuse of discretion and . . . . view the evidence in the light
most favorable to sustaining the superior court’s ruling.” Calvin B. v.
Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
2 We use pseudonyms to protect the children’s identities.
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IN RE TERM OF PARENTAL RIGHTS AS TO K.R. et al.
Decision of the Court
was terrified and, afterward, had a lingering fear of being removed from
Mother’s home. Father eventually left without the children. That same
month, Mother petitioned the juvenile court to terminate Father’s parental
rights based on abandonment. See A.R.S. § 8-533(B)(1).
¶6 At the trial, Father reported for the first time that he had not
contacted the children because Mother told him he had no parenting time,
threatened to have him arrested for not paying child support, and blocked
his entire family from her phone. Mother denied the allegations.
¶7 The juvenile court found that Father abandoned the children
because he had no contact with them and paid only minimal support for
four years. Further, despite his claims about Mother’s interference, the
court found Father failed to vigorously assert his parental rights in other
ways, including failing to confirm or enforce his right to parenting time
through the court.
¶8 The court also made several findings to support its conclusion
that termination was in the children’s best interests. It found that:
[M]other and her fiancé have been in a relationship for two
years. They have been living in the same home for over a year.
Mother’s fiancé has expressed a desire to adopt the Children
and already views them as his children. Mother desires for
her fiancé to adopt the children and both indicated that they
are planning to marry and will complete the adoption as soon
as legally available. Mother and her fiancé are meeting all of
the Children’s needs. [They] also have a child in common.
This is more than a potential, hypothetical adoption. Both
Children call fiancé “Dad” and have expressed a desire to be
adopted. Father raises the issue of fiancé’s previous
marriages. While the Court understands the concern, the
information provided by fiancé regarding his previous
marriages, including that his first marriage occurred at a very
young age, and his current commitment to Mother and
Children lead the court to conclude that Children are
adoptable and that adoption is likely, not just possible.
* * *
Children would benefit from termination because Mother and
her fiancé are meeting all of Children’s needs. Fiancé is
involved in the day-to-day parenting of Children. Fiancé
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picks Children up from school, helps with homework, attends
school activities and helps provide for Children. Children
have expressed a desire to be adopted by [fiancé,] and fiancé
has expressed a desire to adopt Children. Fiancé’s testimony
is that he already views Children as his own. Fiancé is . . .
providing stability for Children. Children are thriving in the
care of fiancé and Mother. The social study found that the
termination would be in Children’s best interest and the
Children’s attorney’s position was also that the termination is
in the Children’s best interest. These Children desire a Father
that will remain constant in their life and will provide them
with permanency.
Father appealed the termination order. This court has jurisdiction under
A.R.S. § 8-235(A).
DISCUSSION
¶9 Father does not challenge the juvenile court’s determination
that he abandoned the children. Instead, he argues that no reasonable
evidence supports the court’s finding that severance was in the children’s
best interests.
¶10 A parent’s right to custody and control of his children, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248–49, ¶¶ 11–12 (2000). The juvenile court may terminate parental
rights if it finds at least one statutory ground under A.R.S. § 8-533 by clear
and convincing evidence and that termination is in the child’s best interest
by a preponderance of the evidence. Id. at 249, ¶ 12; Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005).
¶11 “[W]e 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). This court does not reweigh the
evidence but “look[s] only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶12 Once the court finds a parent unfit under at least one statutory
ground for termination, “the interests of the parent and child diverge,” and
the court then balances the unfit parent’s “interest in the care and custody
of his or her child . . . against the independent and often adverse interests
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of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286, ¶ 35.
“[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.” Maricopa County Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). “[C]ourts must consider the totality of the
circumstances existing at the time of the severance determination, including
the child’s adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶13 The court may find a child would benefit from termination if
there is an adoption plan, if the child is adoptable, Alma S., 245 Ariz. at 150–
51, ¶¶ 13–14, or if the child “would benefit psychologically from the
stability an adoption would provide.” Maricopa County Juv. Action No.
JS-501904, 180 Ariz. 348, 352 (App. 1994). A child is adoptable only if the
petitioner proves the potential for adoption is “not only possible, but
likely.” Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370, ¶ 22 (App. 2018).
¶14 Father first challenges the juvenile court’s finding that the
children are adoptable, arguing the proposed adoption was too speculative
because Mother and her fiancé were not married at the time of trial and did
not have a wedding date. But one need not be married to adopt. See A.R.S.
§ 8-103(A) (“Any adult resident of this state, whether married, unmarried
or legally separated, is eligible to qualify to adopt children.”).
¶15 Even so, reasonable evidence in the record supports the
court’s finding that the proposed adoption was “more than a potential,
hypothetical” benefit. The court noted that Mother and her fiancé’s lives are
highly entwined, her fiancé is committed to Mother and the children, and
they already function as a family unit. And they planned to marry within a
year, and her fiancé testified he intends to adopt the children as soon as
legally possible and is prepared to do so “no matter how long it takes.”
Considering these facts, the court did not err by determining that the
children’s adoption by her fiancé was not only possible but also likely. Cf.
JS-500274, 167 Ariz. at 7 (holding evidence insufficient when based only on
the mother’s contention that she wanted the child free for adoption “just in
case” she got married and “just in case” her future husband wished to adopt
the child).
¶16 Father next argues the juvenile court “did not adequately
consider [his] recent rehabilitative or reunification efforts, and his previous
bond with the children.” The court, in its order, recited testimony and
evidence it considered, including all the evidence Father presented. Yet it
concluded that other factors outweighed Father’s previous bond and a
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recent effort to visit the children. See Jesus M., 203 Ariz. at 282, ¶ 12 (“The
resolution of such conflicts in the evidence is uniquely the province of the
juvenile court as the trier of fact; we do not reweigh the evidence on
review.”). The court’s finding that termination was in the children’s best
interest is supported by reasonable evidence.
CONCLUSION
¶17 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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