In Re Term of Parental Rights as to N.H. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 N.H.
No. 1 CA-JV 23-0044
FILED 9-26-2023
Appeal from the Superior Court in Maricopa County
No. JS21067
The Honorable Pamela S. Gates, Judge
AFFIRMED
APPEARANCES
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Shana L., Surprise
Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO N.H.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.
B R O W N, Judge:
¶1 In this private severance proceeding, Michael H. (“Father”)
appeals the juvenile court’s order terminating his parental rights as to his
daughter, N.H. (born in 2016).1 Father challenges the court’s finding that
termination was in N.H.’s best interests. For the following reasons, we
affirm.
BACKGROUND
¶2 Father and Shana L. (“Mother”) are N.H.’s biological parents.
In 2008, Mother gave birth to N.D.H., who Father later adopted. Following
a 2017 domestic dispute that occurred when the parties were living in
Nevada, Father left the family home and has since lived with his elderly
parents as their caretaker, currently residing in Texas.
¶3 A Nevada court issued a divorce decree in January 2018,
granting Mother and Father joint legal custody of the children, with Mother
being the primary custodial parent. The court ordered Father to pay child
support. The visitation schedule in the decree allowed Father in-person
visitation in Las Vegas and three video calls weekly. Mother and the
children moved to Washington in 2019 and about two years later, they
moved to Arizona. Mother married Christopher L. (“Stepfather”) in
October 2021.
¶4 In June 2022, Mother petitioned to terminate Father’s rights as
to N.H. and N.D.H., alleging that Father had abandoned the children under
A.R.S. § 8-533(B)(1) by failing to maintain a normal parental relationship.
Mother asserted that Father had not actively parented the children since the
divorce, engaged only in limited communication through occasional video
calls lasting about five minutes each, did not send the children any cards or
1 The juvenile court found that Father consented to the termination of
his parental rights to his older daughter, N.D.H. On appeal, Father does
not challenge that finding.
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Decision of the Court
letters, and had paid no child support. Mother also alleged termination
would be in the children’s best interests because Stepfather has been their
“psychological father” since January 2021 and the children wished to be
adopted by him.
¶5 Several weeks later, a social worker conducted a social study,
which included interviews with Mother, her husband, Father, and the
children. After reviewing various records and conducting the interviews
the social worker issued a report, concluding in part that Father had
abandoned the children and the children were “in a stable loving home”
that provided permanency and safety. The report recommended
terminating Father’s parental rights so “the plan of adoption [could] be
implemented.”
¶6 The superior court held a conference with the Nevada court
in compliance with the Uniform Child Custody Jurisdiction and
Enforcement Act. See A.R.S. § 25-1010. During that conference, Nevada
ceded its exclusive, continuing jurisdiction to Arizona, allowing the
superior court to move forward as N.H.’s home state. See A.R.S.
§§ 25-1002(7) (defining “home state”), -1032 (defining “exclusive continuing
jurisdiction”).
¶7 At the subsequent termination hearing, held over the course
of three days, Mother testified about Father’s limited contact with the
children, and that she never denied him the opportunity to contact the
children. Mother also described how Stepfather had “bonded very
quickly” with N.H., he was deeply involved in N.H.’s day-to-day care, and
they both wanted to proceed with adoption. Explaining that adoption
would bring the children “stability” and “happiness,” Mother opined that
termination of Father’s parental rights would be in the children’s best
interests.
¶8 Addressing his relationship with N.H., Father testified that
Mother had reduced his ability to call and visit with N.H., he had not seen
N.H. in person since 2018, he had not paid any child support, he had no
idea how much he was in arrears, and he was unable to obtain employment
or visit N.H. because he takes care of his elderly parents, who have various
medical needs.2 The court also heard testimony from Stepfather and
Father’s sister.
2 Father testified that his stimulus check “went straight to child
support,” but he did not provide supporting documentation.
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Decision of the Court
¶9 In its later ruling, the juvenile court found that Mother proved
by clear and convincing evidence that “Father failed to maintain a normal
parental relationship with [N.H.] without just cause for a period of six
months prior to the filing of the Petition, and the Court heard no evidence
to rebut this prima facie finding of abandonment.” The court found in part
that although Father “is able to parent” N.H., “he has made choices that
resulted in no meaningful or normal parent-child relationship” and thus
Mother met her burden to show that Father had abandoned N.H.
¶10 Addressing best interests, the court recognized it was
Mother’s burden to prove by a preponderance of the evidence that
termination is in the children’s best interests. The court then found in part
that although there was no evidence “that the children would be harmed if
the Court denied the request to terminate,” the termination would benefit
the children because of the permanency and stability they could experience
through adoption by Stepfather, as both he and the children were seeking,
and that benefit was in the children’s best interests. The court therefore
terminated the parent-child relationship between Father and the children.
Father timely appealed, and we have jurisdiction under A.R.S.
§ 8-235(A).
DISCUSSION
¶11 We review a termination order issued by the juvenile court
under the following principles recently clarified by our supreme court.
¶12 First, we “review the factual findings made by the juvenile
court, and its factual findings will be accepted ‘if reasonable evidence and
inferences support them.’” Brionna J. v. Dep’t of Child Safety, ___ Ariz. ___,
___, ¶ 13, 533 P.3d 202, 209 (2023) (citation omitted). “This deferential
standard is warranted ‘[b]ecause the juvenile court is in the best position to
weigh evidence and assess witness credibility.’” Id. (citation omitted). This
applies to the grounds for termination as well as the court’s determination
of whether termination is in the child’s best interests. See id.; Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018) (explaining that in addressing
best interests, the juvenile court’s factual findings will be accepted if
supported by reasonable evidence and the related inferences).
¶13 Second, the juvenile court’s “legal conclusions regarding the
statutory ground for termination—which must be established by “’clear
and convincing’” evidence at the juvenile court level—will be affirmed
unless they are clearly erroneous.” Brionna J., ___ Ariz. ___, ¶ 31, 533 P.3d
at 209–10 (citation omitted). Similarly, the court’s legal conclusions
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Decision of the Court
regarding best interests—which must be established by a preponderance of
the evidence—will be affirmed unless they are clearly erroneous. See Alma
S., 245 Ariz. at 151, ¶ 18 (explaining, in the context of best interests, that an
appellate court “will affirm a severance order unless it is clearly
erroneous”).
¶14 Father does not contest the court’s finding that Mother
proved by clear and convincing evidence that he abandoned both children.
He only contests the court’s finding that termination was in N.H.’s best
interests. He argues the court did not consider the totality of the
circumstances in its best-interests analysis, contending the court abused its
discretion by “ignoring” some evidence and giving Mother’s testimony
more credibility than Father’s.
¶15 In addressing best interests, “we can presume that the
interests of the parent and child diverge because the court has already
found the existence of one of the statutory grounds for termination by clear
and convincing evidence.” Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 35
(2005). Once a court finds “that a parent is unfit, the focus shifts to the
interests of the child as distinct from those of the parent.” Id. at 285, ¶ 31.
The court’s primary concern must be the child’s interest in stability and
security. Alma S., 245 Ariz. at 150, ¶ 12. But we cannot assume termination
will benefit a child simply because she has been abandoned. Demetrius L.
v. Joshlynn F., 239 Ariz. 1, 4, ¶ 14 (2016) (citation omitted).
¶16 Termination is in the child’s best interests if the child will
either benefit from termination or be harmed if it is denied. Alma S., 245
Ariz. at 150, ¶ 13. Whether a severance proceeding is initiated privately or
by the State, the juvenile court “may conclude that a proposed adoption
benefits the child and supports a finding that severance is in the child’s best
interests.” Demetrius L., 239 Ariz. at 2, ¶ 1. In determining the best interests
of the child, a court considers the totality of the circumstances at the time of
termination. Alma S., 245 Ariz. at 150–51, ¶ 13.
¶17 Father argues the court abused its discretion by ignoring or
failing to account for (1) Mother’s actions in changing and limiting his video
calls with N.H., (2) issues with Mother’s credibility, (3) Mother’s decision
to terminate N.D.H.’s “first adoptive father’s parental rights in the same
fashion,” and (4) N.H.’s seemingly inadequate understanding of
permanently terminating Father’s rights.
¶18 To the extent Father argues the juvenile court abused its
discretion by giving greater weight to Mother’s testimony, and finding
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Decision of the Court
Father’s testimony less credible, that court is in the best position to weigh
evidence, assess witness credibility, and resolve disputed facts. See Brionna
J., ___ Ariz. ___, ¶ 30, 533 P.3d at 209; Ariz. Dep’t of Econ. Sec. v. Oscar O., 209
Ariz. 332, 334, ¶ 4 (App. 2004).
¶19 Father’s arguments focus in part on the premise that Mother
interfered with his relationship with N.H., including “changing [or]
limiting . . . video calls” and that she intended to terminate Father’s rights
in the same fashion as she had done with N.D.H.’s prior adoptive father.
But we do not reweigh evidence on appeal, and we presume the court has
considered all evidence in making its decision. Mary Lou C. v. Ariz. Dep’t of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); see also Fuentes v. Fuentes, 209
Ariz. 51, 55–56, ¶ 18 (App. 2004).
¶20 Nothing in the record suggests the juvenile court “ignored”
these arguments made by Father. Instead, the court addressed Father’s
contention that “his inability to communicate with [N.H.] was related to
[Mother’s] attempts to interfere with and alienate the children.” The court
found Father’s testimony lacked credibility because he “did not attempt to
arrange a set time to speak with the child or maintain any regular form of
communication through telephone, videochat, or even sending letters or
cards.” The court also found that the testimony indicated the infrequent
phone calls that did occur were very brief and that Father did not have
conversations with Mother to “try to increase his contact with N.H. or to
learn more about her. He did not return to Court to enforce his visitation
or contact.”
¶21 Father also suggests the court erred by considering N.H.’s
wishes to be adopted by her Stepfather because “N.H. did not seem to
understand permanent termination” of Father’s rights. But N.H. did
express that she wanted to be adopted by Stepfather, who lives with her
and cares for her already. Again, it is not our role to reweigh evidence on
appeal. See Mary Lou C., 207 Ariz. at 47, ¶ 8.
¶22 Moreover, reasonable evidence supports the court’s finding
that N.H. would benefit from termination. Although Father had a more
active and present role in N.H.’s life when she was an infant, he has been
mostly absent from N.H.’s life since the divorce was finalized in early 2018.
Father has not seen or visited N.H. in person since 2018, and the video calls
have been infrequent and brief. Father has not paid child support and is in
arrears of approximately $98,000. Although Father claims that Mother has
interfered with his relationship with N.H., including “changing and
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Decision of the Court
limiting . . . video calls,” he did not provide any evidence showing he has
made diligent efforts to enforce his parental rights.
¶23 As the juvenile court recognized, although N.H. is very
young, she nonetheless expressed a desire for Stepfather to adopt her, and
he wished to adopt her. Stepfather has been present in N.H.’s life, is bonded
with her, and supports her financially, academically, and emotionally.
Therefore, the court’s legal conclusion—that termination of Father’s
parental rights is in N.H.’s best interests based on the permanency and
stability adoption can provide—is not clearly erroneous.
CONCLUSION
¶24 We affirm the juvenile court’s order terminating Father’s
parental rights as to N.H.
AMY M. WOOD • Clerk of the Court
FILED: AA
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