Arizona Department of Economic Security v. Oscar O.

FILED BY CLERK
IN THE COURT OF APPEALS NOV 30 2004
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY, ) 2 CA-JV 2003-0075
CLARISSA O., SAVANNA O., ) 2 CA-JV 2003-0076
TONY E., and GUADALUPE E., ) 2 CA-JV 2003-0077
) (Consolidated)
Appellants, )
) DEPARTMENT B
v. )
) OPINION
OSCAR O., )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 15625600
Honorable Hector E. Campoy, Judge
REVERSED AND REMANDED WITH DIRECTIONS
Terry Goddard, Arizona Attorney General
By Michelle R. Nimmo Tucson
Attorneys for Appellant
Arizona Department of Economic Security
Law Office of Cynthia D. Ettinger, P.C.
By Cynthia D. Ettinger Tucson
Attorney for Appellants
Clarissa O. and Savanna O.
Cheryl S. Blum, P.C. Tucson
By Cheryl S. Blum Attorney for Appellants
Tony E. and Guadalupe E.
Matthew A. Jasper Tucson
Attorney for Appellee
E S P I N O S A, Judge.
¶1 In this appeal, the Arizona Department of Economic Security (ADES) and two
children contend the juvenile court erred by denying ADES’s motion to terminate the father’s
parental rights, despite the existence of a statutory ground for severance and the immediate
availability of a suitable adoptive placement for the children, based solely on the court’s
finding that terminating the father’s rights is not in the children’s best interests. Because the
record contains no reasonable evidence to support such a finding but, rather, establishes the
children’s lengthy out-of-home placement, the marginal nature of the father’s relationship
with the children, potential harm to the children from continuing the relationship, and
availability of a good adoptive home, we conclude that the trial court erred in not severing
the father’s parental rights.
Factual and Procedural Background
¶2 Clarissa O., born September 2, 1998, and Savanna O., born March 1, 2001, are
the second and third of four children born to appellee Oscar O. and his wife, Lydia O.
Clarissa and Savanna were adjudicated dependent in July 2001. Following a permanency
hearing in October 2002, the juvenile court directed ADES to file a motion to terminate both
parents’ rights to the girls.
2
¶3 Lydia then executed a relinquishment of her parental rights, consenting to the
girls’ adoption by their maternal aunt and uncle, appellants Tony E. and Guadalupe E., with
whom they have been living since June 2001. The juvenile court terminated Lydia’s rights
pursuant to the relinquishment. Oscar contested the severance of his rights, and after a
lengthy hearing, the juvenile court found ADES had proved the statutory ground alleged, out-
of-home placement pursuant to A.R.S. § 8-533(B)(8)(b). The court nonetheless denied the
motion to sever Oscar’s rights, finding that terminating them would be contrary to the best
interests of the children. See § 8-533(B). ADES, the children, and the children’s foster
parents all appeal from the juvenile court’s ruling.
Standard of Review
¶4 As the juvenile court acknowledged in its minute entry, the standard of proof
in actions to terminate parental rights is clear and convincing evidence, Rule 66(C), Ariz. R.
P. Juv. Ct., 17B A.R.S.; Michael J. v. Arizona Department of Economic Security, 196 Ariz.
246, 995 P.2d 682 (2000), and the party seeking termination bears the burden of persuasion,
In re Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, 748 P.2d 785 (App.
1988). A 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 resolve
disputed facts. Jesus M. v. Ariz. Dep’t Econ. Sec., 203 Ariz. 278, 53 P.3d 203 (App. 2002).
We therefore accept the juvenile court’s findings of fact “unless no reasonable evidence
supports those findings” and will affirm its severance order unless the order is clearly
3
erroneous. Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70
(App. 1997).
Discussion
¶5 In the single issue raised on appeal, appellants contend there was no reasonable
evidence to support the juvenile court’s conclusion that it would be contrary to the best
interests of Clarissa and Savanna to terminate their “positive, though limited, relationship
with their father.” Oscar acknowledges the court failed to specify any evidentiary basis for
its conclusion, but suggests the court “likely considered” testimony by various witnesses that
the weekly supervised visits between Oscar and the girls were positive, appropriate, and
apparently enjoyable and that the girls displayed affection toward Oscar during the visits.
Nowhere in the juvenile court’s lengthy minute entry, however, did it mention any of the
testimony Oscar cites. The omission is notable here because of the volume of other evidence
the court did specifically refer to in its seven-page ruling.
¶6 To establish that terminating Oscar’s parental rights was in the children’s best
interests, ADES was required to show that the girls would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship. Jennifer B., 189 Ariz. at
557; see also In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d
730, 734 (1990). The existence of a current adoptive plan is one well-recognized example
of such a benefit. Id.; James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 972 P.2d 684
(App. 1998); In re Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 756 P.2d
4
335 (App. 1988) (best interests of child in potentially foster-adoptive home favored
severance so child could be free for adoption); In re Maricopa County Juvenile Action No.
JS-8441, 175 Ariz. 463, 469, 857 P.2d 1317, 1323 (App. 1993) (“The benefit of severance
to the child is that which the legislature intended: freedom to be adopted into a stable and
nurturing home.”); In re Pima County Juvenile Action No. S-2460, 162 Ariz. 156, 158, 781
P.2d 634, 636 (App. 1989) (“The immediate availability of an adoptive placement obviously
weighs in favor of severance . . . .”); see also In re Maricopa County Juvenile Action No.
JS-501904, 180 Ariz. 348, 884 P.2d 234 (App. 1994) (even without firm plan of adoption,
severance benefits adoptable children by freeing them for adoption).
¶7 The undisputed evidence established that the girls’ aunt and uncle are willing
and immediately available to adopt them. The girls are still very young: when the severance
trial concluded, Clarissa was four years old, and Savanna was two. Clarissa had lived with
the aunt and uncle since she was seven months old, and Savanna since she was three months
old. Both girls are emotionally attached to the aunt and uncle, whom they consider “mommy
and daddy,” and the juvenile court found “[t]he placement, by all accounts, is very positive
and has provided an extremely beneficial effect on the children.” The court further found
that remaining in this placement is in the girls’ best interests. As far as we have determined,
the record is devoid of any evidence to the contrary.
¶8 In combination, the existence of a statutory ground for severance and the
immediate availability of a suitable adoptive placement for the children frequently are
5
sufficient to support a severance order. See e.g. James S.; Maricopa County No. JS-6520.
The juvenile court found both here but also concluded it would be contrary to the children’s
best interests either to terminate or to expand their limited relationship with Oscar, which
was confined to two hours of supervised visitation a week. The court gave no reason for its
conclusion, but followed it with this statement:
The Court acknowledges the many bitter difficulties that the
adults have endured as a result of this case. The Court
acknowledges that there is a great deal of animosity between the
[foster parents] and the father. The Court cannot terminate a
parent’s rights due to the inability of the adults to have a
cooperative relationship.
Obviously, the court’s statement addressed Oscar’s parental rights, but it did not address the
best interests of the children. Nor did the juvenile court comment on the potential effects on
the children of a chronically high level of animosity and ongoing conflict between the adults
in their lives.1
¶9 The juvenile court’s failure to state an evidentiary basis for its contrary-to-best-
interests conclusion is particularly notable in light of the other observations and factual
findings the court made in its detailed and lengthy minute entry. They include the following:
• that Oscar has “a chronic history of substance abuse,” had in the past
abused prescribed narcotic medications, and had not complied with the random urinalysis
requirements of his case plan;
1
Several witnesses referred to the pronounced hostility and conflict between Oscar and
the girls’ aunt and uncle.
6
• that Oscar had a history of domestic violence, had subjected Lydia to
episodes of violence, and that their inappropriately enmeshed relationship “remains
problematic”;
• that, “despite the diligent services offered by A.D.E.S.,” Oscar had not
adequately addressed the issues relating to his relationship with Lydia, which “renders him
unable to adequately parent the children”;
• that Lydia “remain[ed] extremely unstable as reflected in her recent
continued drug use and suicidal behaviors,” and Oscar’s failure to resolve his issues “relating
to his relationship with [her] would create tremendous instability in the lives of the children”;
• that Oscar had never adequately parented any of his children, and there was
no substantial likelihood he would be able to exercise proper parental care and control of
Clarissa and Savanna in the near future;
• that “[t]he neglectful and chaotic lifestyle to which the children were
exposed when the dependency petition was brought in this case would be repeated if the
children were to be returned to the physical custody of the father”;
• that, although the court could not conclusively determine whether Clarissa
had been sexually abused by members of Oscar’s family, her allegations “demonstrated
several indicia of reliability” and that, because Oscar had flatly “repudiated any possibility
that his brother or any other family member might have sexually abused his daughter,” he
“would not be vigilant of his daughters’ contact with potential[ly] harmful individuals”;
7
• that the girls “could not be safely returned to” Oscar;
• that Clarissa has spent “most of her life” and Savanna “the overwhelming
majority” of hers with the girls’ maternal aunt and uncle in a placement that is “very
positive” and “extremely beneficial”;
• that remaining with their aunt and uncle is in the girls’ best interests; and
• that expanding the limited relationship they currently had with Oscar would
not be in their best interests.
¶10 Virtually nothing in the six and one-half pages that precede the challenged
conclusion supports or even foreshadows the juvenile court’s determination that “it would
be contrary to the best interests of the children to terminate” their relationship with Oscar.
To the contrary, the court recited—without critique or comment—portions of the testimony
of several witnesses, none of whom stated or even intimated that terminating Oscar’s rights
would have a negative effect on the children.
¶11 First, the court noted:
A bonding and attachment specialist, Mr. Chuck Chiverton,
recommended that the children remain in their placement . . . .
Mr. Chiverton also recommended that the rights of the parents
be terminated.
Mr. Chiverton observed that the children identify the [aunt and
uncle] as their attachment figures. The children feel safe with
the[m] . . . .
Chiverton testified at trial that both Clarissa and Savanna are very securely attached to their
aunt and uncle, that Clarissa’s attachment to Oscar is insecure with some avoidant and
8
disorganized behaviors, and that Savanna has no emotional attachment to Oscar at all, seeing
him instead as solely a sociable figure. Chiverton further opined that Oscar was unlikely “to
establish an attachment process with his daughters,” given the unresolved issues surrounding
Clarissa’s alleged molestation and Oscar’s failure to complete individual therapy.
¶12 The court next noted the testimony of Clarissa’s therapist, who concurred with
Chiverton’s assessment that a deep bond existed between Clarissa and her aunt and uncle.
The therapist testified that she had no concerns at all about the propriety of the children’s
placement. She reported the aunt and uncle had excellent parenting skills and had been
receptive and responsive whenever she had made suggestions for modifying some of
Clarissa’s behaviors. Further, she testified, it was “critical” to Clarissa’s development that
a permanency decision be made “soon.”
¶13 Finally, the court also recounted the testimony of the children’s primary
caseworker, Cheryl Russell, to the effect that the children were doing extremely well in their
current placement and that, in Russell’s opinion, terminating Oscar’s parental rights would
be in their best interests. The court’s minute entry identifies no testimony or other evidence
to the contrary.
¶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. Our task
for factual findings is solely to confirm that there is some reasonable evidence in the record
to sustain them. See Maricopa County No. JS-8441, 175 Ariz. at 465, 857 P.2d at 1319
9
(“[T]he issue on appeal is whether any reasonable evidence supports the juvenile court’s
findings.”). After searching this record, we can find no evidence to support the court’s
conclusion that terminating Oscar’s parental rights would be contrary to the best interests of
Clarissa and Savanna.
¶15 The decision by Division One of this court in Maricopa County No. JS-6831
provides an instructive contrast. The juvenile court in that case had similarly denied a motion
to terminate parental rights, likewise finding that a statutory ground for severance had been
proved “but that the best interests of the children required denial of the termination petition.”
155 Ariz. at 557, 748 P.2d at 786. On appeal, Division One found the juvenile court’s
conclusion supported by the evidence, which it described as follows:
Both Dr. Thal and Dr. Lavit testified that the contact and
visitation between [the mother] and the children was beneficial
to the children, that they recognized [the mother] as their natural
mother, and that the potential for a deeper relationship between
[the mother] and her daughters existed. There was no evidence
that denial of termination would be detrimental to the children
[and] the record contains no reference to potential adoption of
the children by the [natural father and stepmother] . . . .
Id. at 559, 748 P.2d at 788. Here, conversely, there was no similar evidence that the girls’
enjoyable weekly visits with Oscar were truly beneficial or important to them and no
testimony about the possibility of a deeper relationship in the future. In fact, such evidence
as there was pointed in the opposite direction. In further contrast, there was no evidence here
that granting the termination would be detrimental to either of the children, for whom a
suitable, permanent, adoptive home stood waiting.
10
¶16 Lacking any specific evidence that supports the conclusion that terminating
Oscar’s parental rights would somehow be detrimental to his young daughters, the record
instead suggests Oscar falls squarely within the category of parents § 8-533(B)(8) was
enacted to encompass:
Legislative history suggests that this amendment [adding
out-of-home placement as a ground for terminating parental
rights] was in response to the increasing number of children in
foster care whose parents maintain parental rights but refuse to
assume parental responsibilities. The express purpose of the
amendment is to “expedite the adoption of numerous children
who remain in temporary foster care [for indeterminate lengths
of time] with no hope of being returned to their natural parents
and, in so doing[,] promote a stable and long-term family
environment for these children.” 1986 Ariz. Sess. Laws, Ch.
205 §§ 1 and 6.
Thus, the intent of this provision was to enable children
to have a permanent family through adoption.
Maricopa County No. JS-6520, 157 Ariz. at 243, 756 P.2d at 340 (emphasis added); see also
James S., 193 Ariz. 351, ¶ 18, 972 P.2d at 689. Precisely that opportunity for permanency
and stability is available for these children, who—the evidence overwhelmingly
suggests—have virtually no hope of ever being placed in Oscar’s custody.
Disposition
¶17 Although a juvenile court clearly has authority to deny severance when the best
interests of the children will not be served thereby, the court here articulated no reason for
such a finding, nor does the evidence supply one. Having searched the record in vain for any
reasonable evidence to suggest that severance and adoption were not in Clarissa’s and
11
Savanna’s best interests,2 and finding clear, convincing, and virtually uncontroverted
evidence in the record to support just the opposite conclusion, we reverse the order of the
juvenile court and remand the case with directions to grant the motion to terminate Oscar’s
parental rights.
PHILIP G. ESPINOSA, Judge
CONCURRING:
JOHN PELANDER, Chief Judge
M. JAN FLÓREZ, Presiding Judge
2
In In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 804 P.2d 730
(1990), the supreme court reversed a conclusion that termination of a father’s rights was in
the best interests of the child, holding that his past abandonment, standing alone, did not
justify severance without additional proof of some affirmative benefit to the child that would
result from severance. The child in that case was unrepresented by counsel, and the court
noted that “the record on the issue of the best interests of the child might have been improved
if [the child] had been appointed independent counsel.” Id. at 8, 804 P.2d at 737. Here,
Clarissa and Savanna had independent counsel, who supported the effort to terminate Oscar’s
rights.
12