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

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.C.

No. 1 CA-JV 24-0203
FILED 10-03-2025

Appeal from the Superior Court in Maricopa County
No. JS21422
The Honorable Adele Ponce, Judge

REVERSED AND REMANDED

COUNSEL

Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Mother Alisha F.

Czop Law Firm, PLLC, Queen Creek
By Steven Czop
Counsel for Father Joseph C.

Law Office of H. Clark Jones, LLC , Mesa
By H. Clark Jones
Counsel for E.C.

Maricopa County Legal Advocate’s Office, Phoenix
By Amanda Adams
Counsel for Amici Curiae Indigent Defense Agencies
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Amici Curiae Indigent Defense Agencies

Maricopa County Legal Advocate’s Office, Phoenix
By Seth Draper
Counsel for Amici Curiae Indigent Defense Agencies

Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Amicus Curiae Department of Child Safety

OPINION

Judge David B. Gass delivered the opinion of the court, in which Presiding
Judge Brian Y. Furuya and Chief Judge Randall M. Howe joined.

G A S S, Judge:

¶1 Mother petitioned to terminate father’s parental rights to their
child based on abandonment. She sought termination so the child’s step-
father, her current husband, could adopt the child. The superior court
denied mother’s petition to terminate based on best interests alone, without
addressing whether mother had proven abandonment.

¶2 Mother argues the superior court erred when it found
termination was not in the child’s best interests because it considered
whether step-father’s criminal history precluded him from adopting the
child. The court, of its own accord, directed the parties and invited amici
curiae to file supplemental briefs addressing whether the superior court
must engage in a sequential two-step analysis (first addressing statutory
grounds and second, best interests) or whether it may deny termination on
best interests alone without considering the statutory grounds. Though
father did not file an answering brief, he and others filed supplemental
briefs.

¶3 Because the superior court always must engage in the
sequential two-step analysis, the court reverses and remands to the superior
court for proceedings consistent with this opinion.

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FACTUAL AND PROCEDURAL HISTORY

¶4 Mother and father met in Washington. They married in 2013.
Father was in the military at the time. In 2015, mother gave birth to the child.
Mother alleged father threatened her at gunpoint and physically abused her
throughout their relationship. She also alleged father bruised the child’s
arm. As a result, mother left father that same year and took the child with
her.

¶5 In 2016, mother obtained a default divorce decree in Oregon,
which granted her sole custody of the child and gave father the opportunity
for supervised parenting time seven times a year. The decree ordered father
to pay $583 per month in child support. Father has done so, though he
started off in arrears. The decree made father’s parenting time contingent
on proof he completed a parenting class and required mother and father to
provide each other and the court reasonable notice before relocating more
than 60 miles.

¶6 A month after the divorce, mother obtained a restraining
order against father in Oregon. Both mother and father agreed the
restraining order prohibited contact just between one another, not between
father and the child. The Oregon court renewed the restraining order
annually over seven years, finally dismissing it in late 2024. Despite the
restraining order, father arranged for mother’s father and step-mother to
allow him to spend time with the child until mother cut ties with them.
Mother argued father could have maintain contact through her sister if he
wanted parenting time with the child, but he did not. Father said he was
unaware mother’s sister was available to supervise.

¶7 In 2017, father sent multiple emails to mother’s attorney,
requesting parenting time with the child under the decree. In those emails,
father provided a certificate showing he completed the parenting class.
Father received no response from mother’s attorney, until he eventually
responded, saying he “didn’t represent her anymore.”

¶8 In 2019, father petitioned for parenting time in the Oregon
case. The Oregon court required him to complete a domestic violence
assessment. Father sought to schedule the assessment in late 2020, but did
not complete it until August 2021. The assessment recommended parenting
time and said father did not have “any behaviors that would suggest he
would not be [a] safe and caring father.”

¶9 Mother changed addresses several times, after which she
notified the court, but did not tell father. Around 2020, mother settled in

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Arizona. Mother and the child have resided here since then. Mother met
step-father in 2021 and introduced the child to him in February 2022.
Mother says the child views step-father as a father. She testified at the
termination hearing that the child never “had a father figure until [step-
father] came in.” Mother married step-father in July 2023. The child lives
with mother, step-father, and a younger half-sibling, does well, and excels
in school.

¶10 In October 2023, mother petitioned to terminate father’s
parental rights, alleging father abandoned the child. See A.R.S. § 8-533.B.1.
Mother asked the superior court to terminate father’s parental rights so the
child “can then be adopted by the person [the child] views as [a] father.”

¶11 Still living in Oregon, father was unaware mother was in
Arizona until she served him with the termination petition. In December
2023, father moved to enforce parenting time in the Oregon case. That filing
prompted the child’s counsel to ask the superior court to hold a Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) conference
with the Oregon court. In February 2024, the Oregon court ruled it had
exclusive, continuing jurisdiction over this matter, but relinquished
jurisdiction to Arizona because it was the “more convenient forum.” By
then, the child had resided in Arizona for almost four years. The Oregon
court then dismissed father’s motion to enforce parenting time.

¶12 The superior court ordered a social study. Step-father
participated, but father did not. The social study identified no substantiated
Department of Child Safety reports concerning step-father. But the report
noted step-father’s extensive criminal history, including armed robbery
with a deadly weapon, aggravated assault, and burglary. Mother met step-
father while she was working at the prison where he was serving his most-
recent sentence. Even so, the social study recommended terminating
father’s parental rights so mother could proceed with her plan to have step-
father adopt the child.

¶13 Following an October 2024 contested termination
adjudication, the superior court declined to rule on whether mother proved
by clear and convincing evidence father abandoned the child. Instead, the
superior court denied mother’s termination petition, concluding mother
did not prove by a preponderance of the evidence it was in the child’s best
interests. The superior court noted, “Introducing [f]ather to the child at this
point when the child does not know [f]ather could also be disruptive to the
child and put [the child] in contact with a parent who has been absent from
[the child’s] life.” Even so, the superior court found termination was not in

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the child’s best interests because (1) “[t]here [was] the potential for the child
to have a relationship with [f]ather that would be a benefit to [the child],”
and (2) “[i]t was unlikely in any case, that stepfather would pass the
necessary clearances to be able to adopt the child.”

¶14 The court has jurisdiction over mother’s timely appeal under
Article VI, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235.A and
12-2101.A.1, and Rule 603(a), Arizona Rules of Procedure for the Juvenile
Court.

ANALYSIS

¶15 The court accepts the superior court’s findings “if reasonable
evidence and inferences support them.” Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 151 ¶ 18 (2018) (citation omitted); see also Brionna J. v. Dep’t of Child
Safety, 255 Ariz. 471, 478 ¶ 30 (2023). The court defers to the superior court’s
factual findings because the superior court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93
¶ 18 (App. 2009) (citation omitted). The court will not reweigh the evidence.
Maria G. v. Dep’t of Child Safety, 253 Ariz. 364, 366 ¶ 8 (App. 2022).

¶16 The court reviews questions of law de novo, including
interpretations of statutes. Brionna J., 255 Ariz. at 476 ¶ 17. The court applies
these standards of review to ensure it affords “appropriate deference . . . to
the [superior] court’s factual findings while maintaining the [] court’s role
in properly reviewing the [superior] court’s legal conclusions.” Id. at 479
¶ 31.

I. The superior court must conduct a two-step analysis when
considering a petition to terminate a parent’s rights.

¶17 Father argues mother waived the issue of whether deciding
the matter based on best interests alone was error because she did not raise
it before the superior court or in her opening brief. True, the court could
treat that failure as waiver. See Antonio M. v. Ariz. Dep’t of Econ. Sec., 222
Ariz. 369, 371 ¶ 6 (App. 2009). “But the decision to [apply] waiver is
discretionary.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 536 ¶ 9 (App.
2018). When the best interests of the child are at stake, the court generally
will not apply waiver. Nold v. Nold, 232 Ariz. 270, 273 ¶ 10 (App. 2013).
Because the child’s best interests are at issue, the court declines to apply
waiver. See id.

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¶18 Under A.R.S. § 8-533.B, the superior court must conduct a
two-step analysis when determining whether to terminate a parent’s rights:
(1) does a statutory ground for termination exist and (2) is termination in
the child’s best interests. See Alma S., 245 Ariz. at 149 ¶ 8 (reaffirming
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016)); see also Sandra R. v.
Dep’t of Child Safety, 248 Ariz. 224, 227 ¶ 12 (2020). The two-step distinction
between (1) the statutory ground and (2) the child’s best interests comes
from section 8-533.B. Subsection B says: “in considering any of the
following grounds, the court shall also consider the best interests of the
child.”

¶19 The issue then is whether the superior court erred by failing
to address the statutory ground first before it decided best interests.
Because the negative effect the ground has matters to the superior court’s
best-interests analysis, the test is a sequential one, requiring the superior
court find a statutory ground before it addresses best interests, even when
declining to terminate parental rights. Alma S., 245 Ariz. at 150–51 ¶ 13
(citing Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98–99 ¶¶ 11–12
(App. 2016)). Only after fully understanding the ground can the superior
court accurately assess and consider “the negative effect on a child of the
continued presence of a statutory [] ground in a totality of the
circumstances.” See id.

¶20 First, before terminating a parent’s rights, the superior court
must find clear and convincing evidence supports at least one statutory
ground for termination. See Alma S., 245 Ariz. at 149 ¶ 8. “[T]ermination
cannot be predicated solely on the best interests of the child.” Maricopa Cnty.
Juv. Action No. JS-6831, 155 Ariz. 556, 558 (App. 1988). The superior court
thus must deny a petition if it does not find clear and convincing evidence
of at least one statutory ground.

¶21 Second, the superior court must find by a preponderance of
the evidence termination is in the child’s best interests. See Alma S., 245 Ariz.
at 149 ¶ 8; Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474 ¶ 13 (2022)
(“Second, assuming a § 8-533(B) ground exists, the [superior] court must
decide whether a preponderance of evidence supports a finding that
termination is in the child’s best interests.” (emphasis added)). In
evaluating whether termination is in the child’s best interests, the superior
court must determine whether “the child will benefit from [termination] or
the child will be harmed if termination is denied.” See Alma S., 245 Ariz. at
150 ¶ 13 (cleaned up). To that end, the superior court must consider the
“totality of circumstances existing at the time of the termination

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determination” because of the interest in the child’s “stability and security.”
See id. at 150–51 ¶¶ 12–13 (cleaned up).

¶22 Until a party proves a statutory ground, the parent and child
“share a vital interest in preventing erroneous termination of their natural
relationship.” Alma S., 245 Ariz. at 151 ¶ 15 (quoting Santosky v. Kramer, 455
U.S. 745, 760 (1982)). Not until the superior court finds “a parent is unfit,
[may] the focus shift[] to the interests of the child as distinct from those of
the parent.” See id. at 150 ¶ 12 (quoting Kent K. v. Bobby M., 210 Ariz. 279,
285 ¶ 31 (2005)). Then, when the superior court conducts the best-interests
analysis, “the child’s best interests predominate,” not the parent’s interests.
Timothy B., 252 Ariz. at 478 ¶ 31. “The superior court must not subordinate
the interests of the child to those of the parent once a determination of
unfitness has been made.” Id. ¶ 32 (cleaned up). For that reason, the
superior court cannot simply presume the interests diverge when it has not
fully analyzed the ground. The extent of the divergence and the ground’s
ongoing negative effect on the child are based on the facts, not a
presumption. The superior court’s analysis is highly fact dependent. For
that reason, on appeal the court defers to the superior court’s factual
findings. Jordan C., 223 Ariz. at 93 ¶ 18. And the court will not reweigh the
evidence. Maria G., 253 Ariz. at 366 ¶ 8. Indeed, the result would be different
if the ground was not a factor for the superior court to consider in its
best-interests analysis. See Alma S., 245 Ariz. at 150–51 ¶ 13.

II. Because of the nature of the best-interests analysis, the superior
court must resolve the statutory ground before it considers best
interests, even if it ultimately denies the petition on best interests.

¶23 The superior court did not address whether mother proved
the abandonment ground. Instead, the superior court denied the petition
because termination was not in the child’s best interests.

¶24 Mother, the child, and Amici Curiae (the Department of Child
Safety, Maricopa County Legal Advocate, Maricopa County Legal
Defender, and Maricopa County Public Advocate) argue “the superior
court was not permitted to deny the termination of parental rights based on
a best-interests finding alone.” The court agrees.

¶25 Father stands alone in arguing the superior court need not
address the two steps sequentially because a best-interests finding may
support denying the petition. Father is partially correct. The child’s best
interests “may be sufficient to deny termination.” See, e.g., JS-6831, 155 Ariz.
at 559 (affirming denial of petition on best interests after finding a statutory

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ground for termination); see also Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 8 (1990) (affirming parent abandoned the child, but vacating
termination because termination would not be in the child’s best interests).

¶26 Father then argues the superior court properly may skip to
the second step—best interests—without ruling on the first step. In doing
so, father points to Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547,
549–50 ¶ 10 (App. 2010). But Matthew L. stands for a different proposition:
the superior court need not make written findings when denying a
termination request because the party seeking termination did not prove
the statutory ground. Id. The court would agree with father’s application of
Matthew L. if the superior court here had found mother did not prove father
abandoned the child. But it did not. And Matthew L. does not say the
superior court may skip to best interests without first finding a statutory
ground.

¶27 To complete the best-interests analysis under a totality of the
circumstances, the superior court cannot skip the first step because it needs
a full understanding of the nature and effect of the statutory ground
alleged. Indeed, when evaluating best interests, “the negative effect on a
child of the continued presence of a statutory [] ground in a totality of the
circumstances” is a factor for the superior court to consider. Alma S., 245
Ariz. at 150–51 ¶ 13 (citing Dominique M., 240 Ariz. at 98–99 ¶¶ 11–12). As
Dominique M. said, “Absent [termination], the continued presence of the
conceded statutory grounds for [termination] also may, in certain cases,
negatively affect the children.” 240 Ariz. at 98 ¶ 11. And Arizona has long
recognized that in “most cases, the presence of a statutory ground will have
a negative effect on the children.” JS-6831, 155 Ariz. at 559.

¶28 Sequential analysis is especially pertinent when the alleged
ground is a proxy for parental unfitness. “Eight of the eleven statutory
grounds in § 8-533(B) are proxies for parental unfitness.” Alma S., 245 Ariz.
at 150 ¶ 10. Abandonment is one of those eight grounds. See A.R.S. § 8-
533.B.

¶29 JS-6831 provides an example of the need for a sequential
analysis when the ground is abandonment. See 155 Ariz. at 558–59. In JS-
6831, the superior court found the State proved the ground of abandonment
and then considered whether termination was in the child’s best interest.
Id. at 559. Despite the presence of the statutory ground, the superior court
found termination was not in the child’s best interests. Id. The court
affirmed that finding on appeal. Id. In reaching that conclusion, the court
considered the ground and its effect on the child’s best interests. Id. Of

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particular note, JS-6831 said no evidence showed the child would suffer
from contact with the parent, in that case the mother. Id. Instead, the harm
would occur from having the child relocate to live with the mother. Id.
Because termination “is a permanent deprivation, not only on the right to
custody but to all contact,” the court concluded the superior court did not
abuse its discretion in denying the termination. Id

¶30 Here, the superior court could not fully assess the effect of
denying the termination without fully considering the abandonment
ground and the effect on the child. Only then could the superior court
determine whether the disruption of allowing the child to have contact with
father, who had been absent from the child’s life, would be in the child’s
best interests. And if the superior court did not find abandonment, it would
not have to consider best interests.

¶31 Rule 353(a) of the Arizona Rules of Procedure for the Juvenile
Court also shows the superior court must engage in a two-step sequential
analysis. Rule 353(a) says, “At a termination adjudication hearing, the
[superior] court must determine whether the petitioner or moving party has
met the burden of proving at least one ground for terminating parental
rights, and whether termination is in the child’s best interests.” (Emphasis
added). Under that rule, the superior court must determine whether the
petitioner met their burden of proof for both steps. Ariz. R. P. Juv. Ct.
353(h)(2). If the petitioner did not, the superior court must deny the petition.
Ariz. R. P. Juv. Ct. 353(h)(4)(A). The superior court here made no findings
about whether mother met her burden under the abandonment ground.

¶32 From the above discussion, the question arises: must the
superior court complete the second step (best interests) if it finds the
petitioner did not prove the first step (statutory ground)? No. The statutory
ground may affect the best-interests analysis, but the reverse is not true. The
superior court may end its analysis without more if it finds the petitioner
did not prove a statutory ground by clear and convincing evidence.

CONCLUSION

¶33 The superior court must determine whether mother
established the abandonment ground by clear and convincing evidence
before denying mother’s petition on best interests. The court thus reverses
the denial of mother’s petition to terminate father’s parental rights. On
remand, the superior court must conduct a sequential two-step analysis by
first finding whether mother established father abandoned the child and

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then if father did abandon the child, finding whether terminating father’s
parental rights is in the child’s best interests.

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

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