Jesse S. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSE S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.S., PASCUA YAQUI TRIBE,
Appellee.

No. 1 CA-JV 20-0268
FILED 1-14-2021

Appeal from the Superior Court in Maricopa County
No. JD528910
The Honorable Cassie Bray Woo, Judge

AFFIRMED

COUNSEL

Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety

Pascua Yaqui Tribe, Guadalupe
By Tara M. Hubbard
Counsel for Appellee Pascua Yaqui Tribe
 JESSE S. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Jesse S. (“Father”) appeals the juvenile court’s best interest
finding in terminating his parental rights to his child, J.S. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
J.S. is an Indian child under the Indian Child Welfare Act (“ICWA”) and is
enrolled in the Pascua Yaqui Tribe. She was born prematurely at 28 weeks,
had amphetamines in her system, and required extended hospitalization
after birth. J.S.’s mother was homeless and tested positive for
methamphetamine and amphetamine. Eight hours after her birth, police
arrested Father for theft and drug possession. Father was eventually
convicted and sentenced to concurrent terms of 3.5 years and 2.5 years in
prison and has been incarcerated all of J.S.’s life.

¶3 The Department of Child Safety took custody of newborn J.S.;
placed her with her maternal great-aunt, an employee of the Tribe and an
ICWA-compliant placement; and petitioned for dependency. The Tribe
subsequently intervened. The juvenile court found J.S. dependent in March
2019.

¶4 J.S.’s great-aunt met all of J.S.’s medical, emotional, and
physical needs; stayed involved with the Tribe’s cultural events; and
remained connected to the Tribe. After J.S. had been with her great-aunt for
almost a year, the Department changed its case plan to severance and
adoption with a concurrent case plan of guardianship and moved to
terminate Father’s parental rights on the length-of-sentence ground. While
the Tribe recognized that Father had failed to be present for J.S.’s formative
years and had not tried to reunify with her, the Tribe argued that

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termination was not in her best interests because it was contrary to tribal
policy and petitioned that the great-aunt be made a permanent guardian.

¶5 In August 2020, the juvenile court held a combined hearing
on the Department’s termination motion and the Tribe’s guardianship
motion. The Department’s case manager testified that termination was
appropriate because Father had been unable to maintain a normal parent-
child relationship and would not begin to show whether he could have a
relationship with J.S. until July of 2021. The case manager also testified that
termination served J.S.’s best interest because it allowed her great-aunt to
adopt her, providing the permanency a child in her tender years needs.

¶6 The case manager testified that the Department pursues
guardianship only when adoption is remote or severing the parent-child
relationship would not serve the child’s best interests. Because
guardianships are revocable, a guardianship would allow one of J.S.’s
parents to begin revocation procedures, perhaps even many years down the
road, which would uproot any permanency J.S. may have enjoyed. Lastly,
the case manager testified that placement with the great-aunt was the least
restrictive alternative because she met J.S.’s needs and kept J.S. connected
to the Tribe and its customs and traditions.

¶7 The great-aunt testified that she was willing to adopt J.S. and
that she preferred adoption over a permanent guardianship because it
would benefit J.S. more. She too expressed grave concern that Mother or
Father might attempt to regain custody of J.S. “years from now,” which
could traumatize J.S. She further testified that regardless whether she
adopted J.S. or became her permanent guardian, she would facilitate visits
between J.S.’s siblings and allow contact between J.S. and her biological
parents. The Department’s qualified ICWA expert opined that adoption
was in J.S.’s best interests because she was only two years old and either
parent could contest the guardianship, requiring the court to subsequently
reassess a permanent plan for J.S., which could cause her upheaval and
trauma.

¶8 The Tribe’s expert indicated the Tribe’s preferences were
“reunification first, guardianship second, and then termination only when
absolutely necessary.” The Tribe’s expert testified that termination is only
“absolutely necessary” when parents have abandoned the child. The intent
of the Tribe’s policy is that the “Department shall seek to maintain and
support the child’s relationship to his or her biological parents, extended
family members, the child’s tribe, and other individuals with whom the
child has an attachment.” The expert further testified that the termination

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was not in J.S.’s best interest and that once Father was released from
incarceration in July 2021, he could be given the opportunity to participate
in services.

¶9 The juvenile court found by clear and convincing evidence
grounds to terminate Father’s parental rights under A.R.S. § 8–533(B)(4),
stating that Father’s felony incarceration would deprive J.S. of a normal
home life for a period of years. The court found that the great-aunt was
meeting J.S.’s needs and was willing and able to adopt J.S. It found that the
great-aunt provided J.S. “with a loving and nurturing home environment
and the child has been thriving in her care.” It further found that

[m]aternal great aunt testified and expressed willingness to
maintain the Child’s familial connections, including with
siblings to whom Mother previously had her parental rights
terminated. [. . .] Maternal great aunt specifically expressed a
preference for adoption over guardianship.”

¶10 In considering permanency as part of its best interests
analysis, the court found that it had received conflicting testimony whether
guardianship would be detrimental to J.S. because the parents could seek
to regain custody of J.S. after she had spent her formative years with her
maternal great-aunt. The juvenile court concluded that in this instance
“permanency cannot be established through Guardianship, because a
Guardianship is subject to possible revocation.” It therefore concluded that
“[t]ermination of the parent-child relationship will provide the child with
necessary permanency in the adoptive home,” that “termination will still
provide the Child with a home that maintains her ties to the Pascua Yaqui
culture and traditions,” and that termination of parental rights was J.S.’s
best interests.

¶11 Because the court found that termination was in J.S. best
interests, it found that the Tribe had failed to establish beyond a reasonable
doubt grounds for permanent guardianship. Father timely appeals.

DISCUSSION

¶12 Father argues the court erred in denying the petition of
guardianship and terminating his parental rights to J.S. We review a
juvenile court’s termination order for an abuse of discretion. E.R. v. Dep’t of
Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). “The 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 make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280

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¶4 (App. 2002). We accept the juvenile court’s factual findings unless no
reasonable evidence supports them and will affirm a termination order
unless the order is clearly erroneous. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219
Ariz. 506, 508 ¶ 1 (App. 2008).

¶13 Terminating parental rights is in the child’s best interests if
the child will benefit from the termination or will be harmed if the
relationship continues. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150
¶ 13 (2018); see also Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179
¶ 20 (App. 2014). Relevant factors in this determination include whether the
current placement is meeting the child’s needs, an adoption plan is in place,
and the child is adoptable. Demetrius L., 239 Ariz. at 3–4 ¶ 12. Moreover,
“[i]n a best interests inquiry . . . 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), and we must
not “subordinate the interests of the child to those of the parent once a
determination of unfitness has been made,” Alma S., 245 Ariz. at 151 ¶ 15.

¶14 Conversely, as an ICWA case, permanent guardianship may
be established if the court finds, beyond a reasonable doubt, that 1) the child
has been adjudicated dependent; 2) the child has been living in in the
guardian’s care for at least nine months; 3) the Department has made
reasonable efforts to reunite the parent and the child, and further efforts
would be unproductive; and 4) the likelihood that the child would be
adopted is remote or termination of parental rights would not be in the
child’s best interests. A.R.S. § 8-871(A).

¶15 Reasonable evidence supports the juvenile court’s conclusion
that the Department proved by a preponderance of the evidence that
termination is in J.S.’s best interest and that the Tribe failed to prove beyond
a reasonable doubt that termination would not be in the child’s best
interests. J.S. had been adjudicated dependent in March of 2019 and had
been living with her maternal great-aunt for well over a year. The
Department had attempted to reunify J.S. with Father, but Father’s
incarceration would prevent further efforts to reunite J.S. with him until at
least July 2021. J.S.’s maternal great-aunt, on the other hand, has provided
for all of J.S.’s needs since she left the hospital and is able to adopt her. The
Department’s expert testified that termination and adoption would provide
J.S. with lasting permanency. Furthermore, adoption by J.S.’s great-aunt
was the least restrictive alternative because she was an extended family
member—satisfying the Pascua Yaqui’s policy to keep tribal children

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within the family—and would provide J.S. with a home that maintains her
ties to the Tribe’s cultures and traditions.

¶16 Father nonetheless argues that the court erred in finding that
J.S. would suffer serious trauma if he or Mother tried to regain custody of
her. We reject this argument because it asks this court to reweigh conflicting
evidence and to redetermine the credibility of witnesses, which we will not
do. See Alma S., 245 Ariz. at 151–52, ¶¶ 18–19.

¶17 Father also argues that the court contravened ICWA by not
honoring the Tribe’s preference for guardianship and by applying a beyond
a reasonable doubt standard to the Tribe’s guardianship petition. These
arguments are unavailing. The Arizona Supreme Court recognized in
Valerie M. v. Arizona Dep't of Econ. Sec. that ICWA allows state legislatures
to “specify the standard of proof for state-law findings distinct from the
findings required by ICWA,” and Arizona’s Legislature has established the
standard of proof as beyond a reasonable doubt, 219 Ariz. 331, 335 ¶¶ 18–
19 (2009); see also Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555–56
(App. 1997) (finding the purpose of the guardianship statute was primarily
to provide “‘permanency in the custodial relationship’ of ‘older children
who are not suitable candidates for adoption’” (quoting Ariz. House of Rep.,
H.B.2062, Minutes of the Judiciary Committee, Feb. 3, 1994, at 2.)).

CONCLUSION

¶18 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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