In Re Term of Parental Rights as to O.M.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO O.M.

No. 1 CA-JV 22-0196
FILED 2-21-2023

Appeal from the Superior Court in Maricopa County
No. JD534013
The Honorable Cassie Bray Woo, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety

Maricopa County Office of Legal Advocate, Phoenix
By Ektaa Prasher
Counsel for Appellee O.M.
 IN RE TERM OF PARENTAL RIGHTS AS TO O.M.
Opinion of the Court

OPINION

Judge Randall M. Howe delivered the opinion of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

H O W E, Judge:

¶1 Gina S. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her child, O.M., born in 2020, on the
grounds of chronic substance abuse and time in out-of-home placement for
six months. She challenges only O.M.’s placement with the foster family
rather than with O.M.’s maternal grandfather (“Grandfather”). She argues
that she has standing to challenge O.M.’s placement because the placement
determination was “inextricably intertwined” with the best interests
analysis.

¶2 We reject Mother’s argument because once the juvenile court
has terminated a person’s parental rights, that person lacks standing to
challenge the child’s placement. Because Mother lacks standing to
challenge O.M.’s placement, we affirm the juvenile court’s order.

FACTS AND PROCEDURAL HISTORY

¶3 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).
Mother has a history of substance abuse and mental illness. Because of
Mother’s substance abuse while pregnant, O.M. was born substance-
exposed. O.M. suffered withdrawal symptoms and was hospitalized for
weeks. The Department of Child Safety offered Mother services, including
drug testing and substance-abuse treatment. Mother’s participation in the
services was inconsistent and she continued abusing illicit drugs. A few
months later, the Department petitioned for dependency, alleging that O.M.
was dependent due to Mother’s neglect.

¶4 During the dependency proceedings, O.M., Mother, and
O.M.’s biological father (“Father”)1 resided with Grandfather. Grandfather
was the safety monitor under the safety plan the Department had

1 Father is not a party to this appeal; his parental rights were
terminated.

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Opinion of the Court

implemented. A Department caseworker visited Grandfather’s home and
observed two significant bruises on Mother’s arm. Mother at first claimed
she had fallen down the stairs, but later that same day, disclosed to the
Department that Father had physically assaulted her. The caseworker
advised Mother and Grandfather not to permit Father to return home. The
next day, the Department learned that Father had returned home. Neither
Mother nor Grandfather had asked Father to leave home because Mother
and Father had reconciled. The Department then took custody of O.M. and
placed her in foster care. The juvenile court found O.M. dependent as to
Mother.

¶5 The Department offered Mother reunification services,
including drug testing, substance-abuse counseling, domestic-violence
counseling, psychological testing, parenting classes, and supervised
visitation. Mother failed to consistently (1) visit O.M., (2) submit to drug
testing, and (3) participate in parenting classes. About six months after O.M.
was found dependent, the Department moved to terminate Mother’s
parental rights on the grounds of chronic substance abuse and time in
out-of-home placement for six months. Days before the termination
hearing, Grandfather moved to intervene and requested that O.M. be
placed with him.

¶6 At the termination hearing, the Department’s caseworker
testified that termination was in O.M.’s best interests because she was in a
placement that was meeting her needs and she was adoptable. She also
testified that O.M. had been with the foster family for over 15 months and
had formed a “significant bond” with them. Finally, she testified that O.M.
was removed from Grandfather’s home because while Grandfather was the
safety monitor, he knew that Mother and Father had engaged in violence in
O.M.’s presence, but did not notify the Department of the violence. The
juvenile court held that the Department had proved both statutory grounds
for termination by clear and convincing evidence.

¶7 The juvenile court also held that the Department had proved
that the termination of Mother’s parental rights was in O.M.’s best interests.
It found that (1) O.M. would benefit from the termination because it would
provide O.M. “with a safe and stable home free from domestic violence and
substance abuse” and (2) maintaining the parent-child relationship would
be detrimental to O.M. because it would cause O.M. to “linger in foster care,
while waiting for Mother to engage in services and demonstrate an ability
to meet her needs.” It therefore terminated Mother’s parental rights. The
juvenile court noted that Grandfather’s motion to intervene and request

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Opinion of the Court

that O.M. be placed with him was pending before it. Mother timely
appealed.

DISCUSSION

¶8 Mother concedes the juvenile court’s finding that both
statutory grounds for termination existed. She also concedes the best
interests findings to the extent that they prove that termination of her
parental rights was in O.M.’s best interests. She challenges only O.M.’s
placement with the foster family rather than with Grandfather. Thus, even
though Mother appeals the termination of her parental rights, she asks us
to review O.M.’s placement.2

¶9 We deny review because Mother lacks standing to challenge
O.M.’s placement. The juvenile court’s best interests determination “is
separate from and preliminary to its determination of placement after
severance.” Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 370–71 ¶ 2
(App. 2009). A parent lacks standing to challenge a child’s placement once
parental rights are terminated. Id. at 370 ¶ 2. Mother acknowledges that,
generally, a parent lacks standing to challenge the placement of the child
on appeal from the termination order. Nevertheless, relying on Antonio M.,
she argues that a parent may do so if the juvenile court’s placement
determination was “inextricably intertwined” with the child’s best-interests
analysis. Id. at 371 ¶ 3.

¶10 In Antonio M., a parent challenged the juvenile court’s
placement of his child with the foster family rather than a relative. Id. 371
¶ 2. The court held that the parent no longer possessed standing to
challenge the child’s placement once the juvenile court had terminated his
parental rights. Id. The court then stated that “[m]oreover, even assuming
the issue of placement could be viewed as inextricably intertwined with the
issue of [the child’s] best interests to terminate [the parent’s] rights, there is
reasonable evidence in the record to support the court’s finding that
placement with the [relative] was not in [the child’s] best interests.” Id. at
371 ¶ 3. The court’s statement was based on an assumption subsequent to
its holding and unnecessary to its holding, so the statement is obiter dictum.
Obiter dictum is “[a] judicial comment made while delivering a judicial

2 Mother cannot challenge the placement order directly because a
placement order is not a “final order” that she can appeal from. See Jessicah
C. v. Dep’t of Child Safety, 248 Ariz. 203, 206 ¶¶ 13–14 (App. 2020). A
placement order can be challenged only by way of special action. Id. at ¶ 14.
(citation omitted).

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Opinion of the Court

opinion, but one that is unnecessary to the decision in the case and therefore
not precedential (although it may be considered persuasive).” Obiter
Dictum, Black’s Law Dictionary (11th ed. 2019). Obiter dictum is
nonbinding. See Olewin v. Nobel Mfg., LLC, 1 CA-CV 20-0706, 2023 WL
106473, at *4 ¶ 19 (App. Jan. 5, 2023); see also Latoya P. v. Dep’t of Child Safety,
1 CA-JV 21-0325, 2022 WL 678039, at *4 ¶ 25 (App. Mar. 8, 2022) (mem.
decision) (stating that “[t]he commentary in Antonio M. that assumes
arguendo that a biological parent has standing to challenge post-severance
placement is obiter dicta and unpersuasive”) (emphasis in original). Mother
points to no other authority in support of her standing argument and we
are aware of none. Thus, because Mother’s challenge to O.M.’s placement
comes after the termination of her parental rights, she no longer possesses
standing to challenge O.M.’s placement in foster care rather than with
Grandfather.

CONCLUSION

¶11 For the reasons stated, we affirm.

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

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