In Re Termination of Parental Rights as to M.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0048
FILED 10-01-2024

Appeal from the Superior Court in Coconino County
No. S0300SV202300029
The Honorable Angela R. Kircher, Judge

VACATED AND REMANDED

COUNSEL

Harris & Winger P.C., Flagstaff
By Chad Joshua Winger
Counsel for Appellant

Krystal S., Flagstaff
Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Jorden L. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, M.L., for abandonment under
Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(1). We vacate the
termination order and remand for the court to make additional findings.

FACTS AND PROCEDURAL HISTORY

¶2 Krystal S. (“Mother”) and Father are the biological parents of
M.L., born in July 2018. They began living together a few months before
M.L.’s birth, and for a short period they were both involved in raising her.
In February 2019, however, the parents separated after Father was arrested
for committing domestic violence against Mother. She obtained an order of
protection against him, restricting his contact with her to emails about M.L.

¶3 Despite their separation, Mother emailed Father a link to
register with a co-parenting app called AppClose so that they could safely
communicate about M.L. She also offered him a visit with M.L. on Father’s
Day 2019. Father never registered to use the app and declined the Father’s
Day visit because he was concerned about violating the order of protection.

¶4 In April 2020, at the onset of the COVID-19 pandemic, Father
emailed Mother asking about M.L.’s well-being and requesting parenting
time. Mother refused because she felt it was not safe for M.L. to see him in
person given the current stay-at-home orders. She also told him she would
only discuss his parenting time through the court system. In lieu of in-
person contact, she began to email him updates about M.L. every-other
week. She stopped sending these updates after about two months because
he never responded.

¶5 In April 2023, Mother received a letter from the Arizona
Department of Economic Security stating Father had petitioned to modify
his child support obligation. Concerned he would seek parenting time with
M.L., Mother petitioned to terminate his parental rights three months later.

2
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

¶6 The juvenile court held a termination trial in February
2024. Mother testified that Father has not seen M.L. or sent cards or gifts in
over five years. She testified she did not believe Father would remain
involved if he “interject[ed]” in M.L.’s life. Mother was concerned about
Father’s contact with M.L. because he was physically and verbally abusive
towards Mother, and she had witnessed him be aggressive towards others.
She also expressed concern about Father’s history of substance abuse.

¶7 Mother further testified about meeting her fiancée, Torii, in
2021. Mother testified Torii has a close relationship with M.L., who calls
Torii “Mom.” Mother explained she and Torii plan to marry in November
2024, after which Torii would adopt M.L. Mother opined termination
would ensure M.L. remains in a safe and healthy home where she is happy
and loved by two parents and would prevent M.L. from going to a
“stranger” with “a history” should something happen to Mother.

¶8 Father’s sister testified she was worried about M.L. seeing
Father because he used illegal substances. The sister stated Father was
verbally abusive and occasionally violent with her, her brothers, and her
father.

¶9 Father’s ex-girlfriend, Jessica, testified Father was an absentee
parent to their mutual son, K.L., and Father “just kind of dropp[ed] in and
out of [their] child’s life[.]” Jessica testified their son, who was 18 years old
at the time of trial, suffered emotional harm and needed counseling because
Father abandoned him. She was concerned about Father being with M.L.
because he was abusive, angry, financially unstable, and used illegal
substances while they were together.

¶10 Torii testified she loves M.L. and M.L. calls her “Mom.” Torii
expressed her desire to adopt M.L. and her concern that if something
happened to Mother, M.L. would lose her stable home.

¶11 After Mother’s witnesses, Father testified about his efforts to
be a part of M.L.’s life. He explained that after separating from Mother, on
the advice of counsel, he waited until the order of protection expired before
seeking parenting time. After it expired, he emailed Mother asking to see
M.L., but Mother declined his request because of the pandemic. He
researched establishing parenting time through the family court, and even
moved to Phoenix to file paperwork because Mother lived there for a brief
time, but never filed a petition. He also testified he tried to mail cards and
gifts to M.L., but that after they were returned to him, he decided to collect
and share them with M.L. later.

3
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

¶12 Father testified he did his best to pay child support over the
years, but he suffered work-related injuries in 2020 and 2022, which made
it hard for him to pay child support. He explained he filed to modify child
support in April 2023 because he needed to advocate for himself and to save
money for a lawyer to establish his parenting time.

¶13 Father testified that after his arrest in 2019, he participated in
court-ordered anger management counseling, drug counseling, and
voluntarily pursued individual counseling. He wanted to be in M.L.’s life
to prevent her from suffering the harm he caused K.L. by abandoning him.
He also stated he was happy M.L. was in a loving family and did not intend
to disrupt her family.

¶14 After close of testimony and argument, the court ruled from
the bench, finding that Mother proved by clear and convincing evidence
that Father abandoned M.L. per A.R.S. § 8-533(B)(1) and Mother proved by
a preponderance of the evidence that termination of his parental rights is in
M.L.’s best interests. A.R.S. § 8-533(B). The court signed a minute entry
order terminating Father’s parental rights. Father timely appealed and we
have jurisdiction. A.R.S. §§ 8-235(A), 12-120.21(A), 12-2101(A); Ariz. R.P.
Juv. Ct. 601(a).

¶15 While Father’s appeal was pending, he filed an unopposed
motion to stay the appeal and revest jurisdiction in the juvenile court so it
could make written findings about the facts it relied on in deciding to
terminate his parental rights. After the court entered an amended
termination order, Father requested that we clarify whether the court’s
amended order contained sufficient factual findings to make it an
appealable final order. Because the court’s amended order contained some
factual findings, we lifted the stay and left the issue of the sufficiency of
those findings to be resolved as part of the merits of the appeal.

DISCUSSION

¶16 A parent’s right to custody and control of his or her child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248–49 ¶¶ 11–12 (2000). The juvenile court may terminate the
parent-child relationship if the petitioner proves by clear and convincing
evidence at least one of the statutory grounds set forth in A.R.S. § 8-533(B).
Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 474 ¶ 1 (2023). The court must
also find by a preponderance of the evidence that termination is in the
child’s best interests. Id.

4
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

¶17 Father challenges only the court’s finding that termination of
his parental rights was in M.L.’s best interests. He has therefore waived
review of the court’s finding he abandoned M.L., which finding is
supported by the record. A.R.S. § 8-533(B)(1); see Crystal E. v. Dep’t of Child
Safety, 241 Ariz. 576, 577–78 ¶ 5 (App. 2017).

¶18 We review a best-interests determination for an abuse of
discretion and reverse only if there is “no reasonable evidence to support
[the factual findings].” Mary Lou C. v. Ariz. Dep’t. of Econ. Sec., 207 Ariz. 43,
47 ¶ 8 (citations omitted). When considering the child’s best interests, the
court must consider the totality of the circumstances, which include the
child’s stability and security. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
150–51 ¶ 13 (2018). To prove that termination is in the child’s best interests,
the petitioner must show either: (1) the child will benefit from the
termination; or (2) the child will be harmed if the termination is denied. Id.
at 150 ¶ 13. The court may find a child would benefit from termination if
there is an adoption plan or if the child is adoptable. Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 3–4 ¶ 12 (2016). The court may also find that a child will
benefit from the permanency and stability an adoption would provide.
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 337 ¶ 16 (App. 2004).

¶19 In addition to these requirements, under A.R.S. § 8-538(A),
“[e]very order of the court terminating the parent-child relationship . . .
shall be in writing and shall recite the findings on which the order is
based[.]” By enacting this statute, “the legislature has imposed significant
procedural safeguards to ensure due process” recognizing the fundamental
rights at stake in a termination proceeding. Ruben M. v. Ariz. Dep’t of Econ.
Sec., 230 Ariz. 236, 240 ¶ 21 (App. 2012). The statute’s requirement of written
findings also enables us to determine exactly which issues the court decided
and whether the court correctly applied the law. Id. at 240 ¶ 24. The court
does not need to detail each fact that supports its ruling. Christy C. v. Ariz.
Dep’t of Econ. Sec., 214 Ariz. 445, 451–52 ¶ 19 (App. 2007). But the court’s
findings must include all the “ultimate facts” it relied on in reaching its
decision. Ruben M., 230 Ariz. at 241 ¶ 25; see also Ariz. R.P. Juv. Ct.
353(h)(2)(A) (requiring “at least one factual finding sufficient to support
each of those conclusions of law.”).

I. The Juvenile Court Abused Its Discretion by Terminating Father’s
Parental Rights Without Reciting the Factual Basis for Its Best-
Interests Finding.

¶20 In this case, the juvenile court’s amended termination order
recites two separate best-interests findings:

5
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

The Court [ ] FINDS, by a preponderance of the evidence, it is
in [M.L.]’s best interests for parental rights of [Father to] be
terminated and that sole custody of [M.L.] be vested in
[Mother].

¶21 Father argues the only reasonable construction of this finding
is that terminating his parental rights was in M.L.’s best interests “so that”
Mother can have “forever” sole custody. He asserts that depriving the
family court of jurisdiction to address parenting time is not a legally
sufficient reason to support a best-interests finding. And in any event, he
argues Mother is not yet married, and therefore her fiancée cannot legally
adopt M.L. See A.R.S. § 8-117(B), (C). Lastly, he argues terminating his
parental rights caused M.L. to lose a legal parent without having another
parent to step into that role. A.R.S. §§ 8-117(B), -539 (“An order terminating
the parent-child relationship shall divest the parent and the child of all legal
rights . . . except the right of the child to inherit and support from the parent.
This right of inheritance and support shall only be terminated by a final
order of adoption.”).

¶22 Mother counters that the “ultimate fact” supporting the
court’s legal conclusion that the termination is in M.L.’s best interests is the
court’s finding and order granting Mother sole custody. But unlike Father,
she argues this finding is both legally sufficient and supported by
reasonable evidence. She directs us to evidence Father abandoned K.L.,
Father’s history of substance abuse, drug-related felony convictions,
aggressive and violent behaviors, and financial instability. And while
conceding they are not yet married, Mother also points to evidence she and
Torii have firm plans to marry in November 2024 and plans for Torii to
adopt M.L. once possible.

¶23 Both Father’s and Mother’s positions miss the point. Though
phrased as a finding, the court’s order states legal conclusions. Specifically,
its use of the conjunction “and” suggests two separate legal conclusions: (1)
it is in M.L.’s best interests to terminate Father’s and M.L.’s parent-child
relationship; and (2) it is in M.L.’s best interests to vest sole custody in
Mother. See Webster’s II New College Dictionary (2001) (defining “and” as
“Together or along with: as well as—Used to connect . . . or clauses that
have the same grammatical function in a construction”). Because the court’s
use of “and” in its amended order is clear and unambiguous, we apply its
plain meaning as written. Cohen v. Frey, 215 Ariz. 62, 66 ¶ 10 (App. 2007); cf.
Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 537 ¶ 12 (App. 2018) (“When
the text is clear and unambiguous, we apply the plain meaning and our
inquiry ends.”). Because its clauses are separate, the order’s best-interests

6
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

determination states legal conclusions that do not satisfy the statutory
requirement for the court to make supportive factual findings. See A.R.S. §
8-538(A). Noncompliance requires remand to correct the omission. Logan
B., 244 Ariz. at 537 ¶ 14.

A. The Juvenile Court’s Abandonment Findings Do Not
Support Its Best-Interests Determination.

¶24 Mother argues the court’s written findings concerning
abandonment “dually inform” its legal conclusions under A.R.S. § 8-533(B)
that Father abandoned M.L. and that termination is in her best interests.

¶25 However, in a termination proceeding, we may not “assume
that a child will benefit from termination simply because [s]he has been
abandoned.” Demetrius L., 239 Ariz. at 4 ¶ 14 (internal quotations omitted).
Because abandonment is a fact that by itself is insufficient to establish what
is in a child’s best interests, the court’s best-interests analysis must be
informed by factual findings that go beyond what is necessary to show
abandonment.

¶26 Here, Mother relies on four findings of fact the court used to
support its conclusion of abandonment:

3. [M.L.] was born on July 3, 2018, to [Mother] and [Father].
Father was initially involved in caring for his child until a
Domestic Violence incident resulted in separation.

4. [Father] ceased contact with [M.L.] shortly thereafter.

5. Despite [Mother]’s considerable efforts to engage [Father]
in co-parenting (i.e. email updates, co-parenting app
messages) [Father] made no efforts to see or communicate
with his daughter. [. . . .]

8. [M.L.] has no relationship with [Father]. [M.L.] was five
years old at the time of the termination trial and has not seen
him since she was an infant.

Although these findings sufficiently support the court’s legal conclusion
about abandonment, they are not “ultimate facts” the court could have
relied on to reach its best-interests determination. The first of these findings,
that Father committed an act of domestic violence against Mother, does not
mention M.L. or explain how her best interests were affected by the
incident. The next two findings—that he ceased contact with her after his

7
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

arrest for domestic violence and, afterwards, made no efforts to see or
contact her—do not suggest this abandonment harmed M.L. or otherwise
affected her best interests. And the finding that M.L. has no relationship
with her father because she has not seen him since she was an infant just
restates the definition of abandonment, albeit in reverse—i.e., that he failed
to maintain “regular contact” or “a normal parental relationship with the
child[.]” A.R.S. § 8-531(1).

¶27 Regarding this last finding, Mother argues that, in the absence
of written findings, we should consider that when the court ruled from the
bench, it told Father that “[M.L.] has a family. She doesn’t know you. And
I think that’s more than enough for best interests.” But under A.R.S. § 8-
538(A), we are prohibited from speculating as to what evidence the court
might have relied on in concluding that termination was in M.L.’s best
interests. Further, we may not “ignore the requirement of written findings
and simply search the record to uncover ultimate facts the court may have
relied upon, or infer findings the court may have made, in reaching the
decision to enter an order of termination.” Logan B., 244 Ariz. at 538 ¶ 17.

CONCLUSION

¶28 We therefore vacate the juvenile court’s termination order
and remand for the court to enter written findings of fact to support its
conclusion regarding M.L.’s best interests, as required by A.R.S. § 8–538(A).
In the juvenile court’s discretion, it may enter these findings on the existing
record or reopen evidence and require the parties to present additional
information for its consideration. We express no opinion about whether the
evidence in the record is sufficient to support a finding that termination of
the parent-child relationship is in M.L.’s best interests.

M O R S E, Judge, concurring in the result:

¶29 I am persuaded by the dissent in Logan B. that an appellant
can waive arguments that a termination order failed to include written
findings required by A.R.S. § 8-538(A). See 244 Ariz. at 540–42 ¶¶ 24–32
(Brown, J., dissenting). And this case seems to present an appropriate
situation in which to find waiver. At Father’s request, we have already once
revested jurisdiction in the superior court to make written findings. Then
Mother submitted, and the superior court adopted, proposed findings of
fact. But our record on appeal does not reflect any objection from Father to
those findings. See id. at 541 ¶ 29 (Brown, J., dissenting) (noting that an

8
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

objection “would have given the juvenile court the opportunity to address,
in the first instance, the error Father now asserts on appeal”).

¶30 Unfortunately, Mother does not argue that Logan B. was
wrongly decided nor argue that Father waived his argument by failing to
object to her proposed findings of fact. Therefore, I concur in the result.

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

9