In Re Term of Parental Rights as to E.W.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0217
FILED 4-18-2024

Appeal from the Superior Court in Maricopa County
JD41967
The Honorable Melody Harmon, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Father

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda L. Adams
Counsel for Appellee E.W.
 IN RE TERM OF PARENTAL RIGHTS AS TO E.W.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Vonnie W. (“Father”) appeals the termination of his parental
rights to his daughter E.W., asserting that termination was not in E.W.’s
best interests. Because reasonable evidence supports the court’s finding that
termination would be in E.W.’s best interests, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Kiera B. (“Mother”) lived together in New York
until Mother, who was six months pregnant, relocated alone to Arizona to
live with her mother (“Grandmother”). Mother gave birth to E.W. in June
2022.

¶3 Viewed in the “light most favorable to sustaining the juvenile
court’s order,” In re O.M., 254 Ariz. 543, 544, ¶ 3 (App. 2023), the evidence
shows that E.W. was born exposed to methamphetamine, fentanyl,
marijuana, and other substances. Having difficulty feeding and in need of
morphine to treat her withdrawal symptoms, E.W. remained hospitalized
for several weeks after her birth. Although Mother initially visited the child,
she was banned from the hospital after she bit off E.W.’s feeding tube.
Mother was immediately referred for drug testing; she tested positive for
fentanyl, methamphetamine, heroin, and other substances.

¶4 Before E.W. was discharged, the Department of Child Safety
(“DCS”) filed a dependency petition in July 2022 and, after being unable to
locate Father, placed E.W. in Grandmother’s care.

¶5 DCS eventually contacted Father in New York and asked him
to undergo paternity and substance abuse testing. Father refused to
establish paternity, engage in services, or even provide his home address,
expressing suspicion that DCS was trying to “set him up” by tricking him
into disclosing his whereabouts so he could be arrested on an outstanding
Arizona warrant.

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Decision of the Court

¶6 The court found E.W. dependent in October 2022 and
changed the case plan to severance and adoption in February 2023. In
March 2023, DCS moved to terminate Father’s parental rights on
abandonment and out-of-home placement grounds.1 See A.R.S.
§ 8-533(B)(1), (8). Later that month, Father finally agreed to undergo testing,
which established paternity, and he then contested the petition to terminate
his parental rights to E.W.

¶7 Despite DCS’s requests, Father refused to engage in substance
abuse testing or treatment. In June 2023, Father accepted DCS’s offer of
visitation. Unwilling to risk arrest on the outstanding warrant, however, he
continued to refuse to travel to Arizona, and so his visits with E.W. took
place virtually. Although each visit was scheduled for two hours, they
typically ended much sooner, after around fifteen minutes. In one instance,
his virtual visit with E.W. lasted only three minutes.

¶8 In July 2023, DCS learned that Father had moved to Alaska,
where he had an open case with the Alaska Department of Child Safety
regarding three other children he had with another woman. The Alaska
agency informed DCS that it had recommended that Father undergo a
mental health evaluation due to his history of emotional outbursts. DCS
also learned that Father had previously been criminally charged for sending
threatening text messages to the mother of his other children and to another
woman.

¶9 DCS provided Father with contact information for various
substance abuse assessment and treatment providers in Alaska, but Father
never participated. He also refused DCS’s request that he undergo a
psychological evaluation, an anger management assessment, and a
domestic violence assessment.

¶10 After a hearing in September 2023, the DCS case manager
testified, among other things, that E.W. had been in Grandmother’s care
since she was discharged from the hospital after her birth, Grandmother
had met all of her needs, and Grandmother wanted to adopt her.

¶11 Father appeared at the hearing remotely from his home in
Alaska. He acknowledged that he had never met E.W. in person and that
he had not participated in services requested by DCS. He nonetheless stated

1 DCS also petitioned to terminate Mother’s rights, which were
subsequently terminated. Mother is not a party to this appeal.

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Decision of the Court

that he loved E.W. and was willing to engage in services to improve his
ability to parent her.

¶12 After the hearing, the court found that DCS established “a
prima facie case of abandonment” under A.R.S. § 8-533(B)(1), which Father
failed to rebut, and that Father “willfully refused to remedy the
circumstances” that caused E.W. to be placed in Grandmother’s care. See
A.R.S. § 8-533(B)(8).

¶13 Finding that Father “gave no indication of when he would
ever be able and willing to parent” E.W., the court also determined that
termination was in E.W.’s best interests. The court found that maintaining
Father’s parent-child relationship with E.W. would be detrimental to E.W.
by leaving her “indefinitely in foster care” and denying her “the
permanency she deserves.” Grandmother’s adoption of E.W., the court
concluded, would provide E.W. with stability and permanency in the
“loving and nurturing home environment” where she had thrived since she
was born.

¶14 Father timely appealed, and we have jurisdiction under
A.R.S. § 8-235(A).

DISCUSSION

¶15 A parent’s right to the custody and control of his child,
though fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 248, ¶¶ 11-12 (2000). The parental relationship may be
terminated if the court finds, by clear and convincing evidence, at least one
statutory ground for termination under A.R.S. § 8-533(B) and further finds,
by a preponderance of the evidence, that termination is in a child’s best
interests. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474, ¶ 13 (2022).
In determining a child’s best interests, a court “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).

¶16 We view evidence in the light most favorable to sustaining the
juvenile court’s findings, see Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207, ¶ 2 (App. 2008), and we will affirm an order terminating parental
rights absent an abuse of discretion, Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 47, ¶ 8 (App. 2004). We “accept the juvenile court’s findings of
fact if reasonable evidence and inferences support them,” Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016), and we will affirm the court’s legal

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Decision of the Court

conclusions unless clearly erroneous, Brionna J. v. Dep’t of Child Safety, 255
Ariz. 471, 478-79, ¶ 31 (2023).

¶17 Father does not challenge the statutory grounds for
termination under A.R.S. § 8-533(B)(1) and (8). Instead, he argues only that
the court abused its discretion by finding that termination was in E.W.’s
best interests. He asserts that E.W.’s best interests would have been served
by establishing a guardianship in lieu of termination, which would have
allowed her to maintain her relationship with “a father who loves her.”

¶18 Under A.R.S. § 8-872(A), “[a]ny party to a dependency
proceeding . . . may file a motion for permanent guardianship.” A
guardianship may be established if it is in the child’s best interests; the child
has been adjudicated dependent and has been in the custody of the
prospective guardian for at least nine months; further reunification efforts,
if applicable, would be unproductive; and termination of parental rights
would not be in the child’s best interests. A.R.S. § 8-871(A).

¶19 But Father never moved to establish a guardianship under
A.R.S. § 8-872(A) or request a case plan of guardianship. And no other party
did either. The juvenile court thus lacked authority to establish a
guardianship for E.W. See Ariz. Dep’t of Econ. Sec. v. Stanford, 234 Ariz. 477,
480, ¶ 14 (App. 2014) (holding that juvenile court cannot initiate a
guardianship “in the absence of a statutorily compliant motion by a party
to the proceedings”).

¶20 Father also argues that termination cost E.W. “vital
relationships” with her extended family, such as her three half-brothers and
her paternal grandmother. But nothing in the record suggests that E.W. ever
had any kind of relationship with Father’s other children or her paternal
grandmother. And there is no evidence that Grandmother would prevent
Father’s extended family members from establishing a relationship with
E.W. if they ever expressed an interest in doing so.

¶21 In determining that termination was in E.W.’s best interests,
the juvenile court cited, inter alia, Father’s “lack of effort toward
reunification.” Although Father now claims he is “willing to continue the
steps necessary to be a part of [E.W.’s] life,” the record amply supports the
court’s finding that Father “did not make an effort to . . . engage in services
towards reunification.”

¶22 Father never came to Arizona to spend time with E.W. He did
not begin virtual visits until three months before the termination hearing,
and his virtual visits with the child lasted only a fraction of the allotted time.

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Decision of the Court

From the outset of these proceedings, DCS urged Father to participate in
various services, including substance abuse treatment and anger
management, but he repeatedly refused.

¶23 DCS’s Progress Report from July 2023 states that even after
Father expressed a willingness to engage in services, he exhibited a “pattern
of non-engagement, avoidance, and being resistant to change.” The report’s
statements about Father’s non-engagement and avoidance are corroborated
by Father’s own testimony. When asked at the hearing if he had undergone
the recommended psychological evaluation, he admitted that he had not,
stating, “I’m scheduled to do that next week.” Waiting until after the
termination hearing to schedule a service that DCS requested months
earlier illustrates his lack of commitment to improving his ability to parent
the child. See Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994) (affirming termination and determining that parent’s
“successful efforts at rehabilitation in the eight months prior to the
severance hearing[,] . . . while commendable, were ‘too little, too late’”).

¶24 Father did not claim to have followed DCS’s recommendation
that he participate in anger management treatment, and evidence presented
at the termination hearing made clear that his anger issues persist. The DCS
case manager testified that Father had “outbursts” during some of their
phone conversations. She described one conversation in May 2023, roughly
four months before the hearing, when Father was “very upset and agitated”
because he believed that she was “talking about him behind his back.”
During this conversation, Father warned the case manager that he might
“have one of his boys pay [her] a visit.”

¶25 In his testimony, Father did not unequivocally deny
threatening the case manager, saying only that he does not “remember
ever” doing so. Moreover, he admitted having “emotional outbursts”
during their phone conversations for which he neither apologized nor
acknowledged fault. On the contrary, he insisted that it was “my right . . .
to speak upon how I was feeling.”

¶26 Termination is in a child’s best interests if the child “would
derive an affirmative benefit from termination or incur a detriment” by
maintaining the parent-child relationship. Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). The court’s finding that the child
would benefit from termination because she could be adopted by the
person who has cared for her and met her needs for her entire life supports
the court’s “best interests” determination. See Maricopa Cnty. Juv. Action No.
JS-8441, 175 Ariz. 463, 469 (App. 1993) (“The benefit of severance to the

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Decision of the Court

child is that which the legislature intended: freedom to be adopted into a
stable and nurturing home.”). So, too, does the court’s finding that denying
termination would be detrimental to E.W. by “leaving [her] indefinitely in
foster care” because Father has made little effort to engage in services to
enable him to parent her. See JS-501568, 177 Ariz. at 577 (concluding that
“[l]eaving the window of opportunity for remediation open indefinitely” is
not in the child’s best interests). We therefore affirm the court’s termination
of Father’s parental rights.

CONCLUSION

¶27 For the foregoing reasons, we affirm.

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

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