In Re Term of Parental Rights as to A.S. and A.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0108
FILED 03-04-2025

Appeal from the Superior Court in Maricopa County
No. JD33226
The Honorable Gregory Como, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

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

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Michael J. Brown joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO A.S. and A.S.
Decision of the Court

M c M U R D I E, Judge:

¶1 Ashanti W. (“Mother”) appeals the termination of her
parental rights to her daughters Amy (born in 2011) and Ava (born in
2012).1 We find no error with the termination for Ava. For Amy, however,
the juvenile court misconstrued the law and the facts about her best
interests. Thus, we affirm the termination order for Ava but vacate and
remand as to Amy.

FACTS AND PROCEDURAL BACKGROUND

¶2 In early 2020, the Department of Child Safety took custody of
the children based on reports of abuse and neglect at their father’s home.2
At that point, Mother had not parented the children in years, and her
whereabouts were unknown.

¶3 The Department located Mother later in 2020. The
Department then offered Mother years of reunification services, including
drug testing, mental-health treatment, and visitation. But Mother
minimally participated in the services, continued to use drugs, and made
little effort to maintain a relationship with the children.

¶4 Meanwhile, Ava and Amy were placed in a foster home
together. Ava thrived there and never left. Amy, by contrast, had little
stability because of behavioral struggles. In mid-2021, the Department
moved Amy to a therapeutic foster home after she got “physical with [her]
placement.” Then, in mid-2022, she was moved to a qualified residential
treatment program after self-harming and damaging property. Soon after,
she threatened to kill a peer and was moved to a group home for children
with significant trauma, where she continued to be verbally and physically
aggressive. She was next moved to a second qualified residential treatment
program but was removed after a conflict with the police. She then stayed
in an inpatient behavioral health facility for more than a year, where she
continued to harm herself, others, and property. Upon her removal from
inpatient care to a third qualified residential program in late 2023, she
threatened homicide. She was moved to a therapeutic foster home in early

1 We use pseudonyms to protect the children’s identities.

2 The children’s father’s rights were terminated concurrent with
Mother’s, but he is not a party to this appeal.

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.S. and A.S.
Decision of the Court

2024 but returned to inpatient care only a few months later after attempting
suicide.

¶5 In mid-2023, the Department proved grounds to terminate
Mother’s rights to Ava based on Mother’s substance abuse under Arizona
Revised Statutes (“A.R.S.”) § 8-533(B)(3) and the child’s time in care under
§ 8-533(B)(8)(c). But the juvenile court concluded the Department failed to
prove statutory grounds to terminate the father’s rights. As a result, the
court declined to terminate Mother’s rights on best-interests grounds
because termination would not free Ava for adoption. The court also found
preserving Mother’s rights allowed for the possibility that Mother could
become sober and capable of care.

¶6 The Department again sought termination for both parents
and children in late 2023 and early 2024. The matter went to trial in mid-
2024. The juvenile court granted the motion to terminate in whole. As to
Mother, the court found the Department proved grounds to terminate her
rights to the children based on substance abuse under A.R.S. § 8-533(B)(3),
time in care under § 8-533(B)(8)(c), and abandonment under § 8-533(B)(1).
The court also found termination was in the children’s best interests
because Mother’s continued substance abuse made reunification
improbable, and freeing the children for adoption offered them a chance of
permanency and stability, and prolonging their time in care would harm
their adoption prospects as well as their mental health.

¶7 Specific to Ava, the court found she was closely bonded to her
long-term adoptive placement and shared the placement’s desire for
adoption. Acknowledging that “[w]ith [Amy], perhaps the situation isn’t
quite as clear,” the court stated that “the whole idea that we have to decide
whether a child is adoptable or not seems rather bizarre to me in some
ways. In my view, almost any -- any child is adoptable.” The court found
that despite Amy not being in an adoptive placement, she was adoptable
because she was happy, relatively young, and, despite her behavioral
struggles, had no history of criminal behavior or violence. The court
determined: “[Amy]’s had her share of mental health issues and continues
to, but there are children being raised by parents all over the country with
mental health issues, and they have good relationships with their parents
and with their siblings, and I don’t see any reason why [Amy] can’t be in
that same situation.”

¶8 Mother appealed. We have jurisdiction under A.R.S.
§§ 8-235(A) and 12-120.21(A)(1).

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.S. and A.S.
Decision of the Court

DISCUSSION

¶9 Parental rights must not be terminated absent proof by clear
and convincing evidence that termination is warranted under A.R.S.
§ 8-533(B), and proof by a preponderance of the evidence that termination
is in the child’s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005); A.R.S. § 8-863. We defer to all factual findings supported by
reasonable evidence but review legal issues de novo. Jessie D. v. Dep’t of Child
Safety, 251 Ariz. 574, 579-80, ¶ 10 (2021).

¶10 Mother challenges only the juvenile court’s best-interests
determinations. The best-interests inquiry focuses on the child’s interest in
stability and security. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12
(2018). Termination will serve the child’s best interests if he or she would
benefit from termination or be harmed by its denial. Id. at 150-51, ¶ 13. The
court must consider the totality of the circumstances. Id. Relevant factors
may include whether the parent has made rehabilitation efforts, whether
the child’s needs are being met in his or her placement, whether an
adoption plan exists, and whether the child is adoptable. Id. at 151, ¶¶ 14-
15; Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4, ¶ 12 (2016). But evidence of
an adoption plan or adoptability must show that adoption “is not only
possible, but likely.” Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370, ¶ 22
(App. 2018). The adoption showing must be specific to the child—“[i]f
theoretical adoptability is sufficient to establish best interests, the inquiry
becomes perfunctory.” Id. at 370, ¶ 19. “If ‘adoptable’ merely means that
someone, somewhere, would be willing to adopt the child, then all children,
given their unique dignity as human beings, and the unbounded capacity
of some adults to accept and love any child, may be said to be ‘adoptable.’”
Id.

¶11 The juvenile court misconstrued the adoptability standard
when considering Amy’s best interests. The court’s remarks about the
hypothetical adoptability of all children and the ability of other parents to
meet other children’s mental-health needs contradicted the required
case-specific assessment. Moreover, even if the court properly considered
Amy’s circumstances, its finding that she had no history of criminal or
violent behavior was unsupported. The evidence showed Amy threatened
to kill others many times and often harmed herself, others, and property.
On appeal, the Department concedes it is impossible to know whether the
court would have found termination to be in Amy’s best interests without
its unfounded underestimation of the nature and severity of her behaviors.
We agree. See Ellesse J. v. Dep’t of Child Safety, 1 CA-JV 17-0182, 2017 WL
6376362, at *6, ¶¶ 26-30 (Ariz. App. Dec. 14, 2017) (mem. decision) (We will

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.S. and A.S.
Decision of the Court

not affirm a termination where we cannot discern the extent of an erroneous
finding’s effect on the juvenile court’s best-interests determination.). We
must vacate the termination order for Amy based on the juvenile court’s
misapprehension of the law and the facts.

¶12 As to Ava, however, we detect no error. For Ava, the juvenile
court based its best-interests determination on case-specific findings
supported by the evidence. Specifically, the court correctly found Ava
would benefit from termination because she was closely bonded to a
long-term placement that planned to adopt her. The court also found
continuing Mother’s parental relationship would harm Ava because of
Mother’s consistent unwillingness or inability to achieve sobriety, and
preserving the parental relationship would prolong Ava’s time in care to
the detriment of her adoption prospects and mental well-being. We affirm
the termination order as to Ava.

CONCLUSION

¶13 We affirm the termination of Mother’s parental rights to Ava.
We vacate the termination order for Amy and remand for a new
termination trial.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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