Arizona Department of Economic Security v. Oscar O.

FILED BY CLERK
IN THE COURT OF APPEALS NOV 30 2004
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY, ) 2 CA-JV 2003-0075
CLARISSA O., SAVANNA O., ) 2 CA-JV 2003-0076
TONY E., and GUADALUPE E., ) 2 CA-JV 2003-0077
) (Consolidated)
Appellants, )
) DEPARTMENT B
v. )
) OPINION
OSCAR O., )
)
Appellee. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. 15625600

Honorable Hector E. Campoy, Judge

REVERSED AND REMANDED WITH DIRECTIONS

Terry Goddard, Arizona Attorney General
By Michelle R. Nimmo Tucson
Attorneys for Appellant
Arizona Department of Economic Security

Law Office of Cynthia D. Ettinger, P.C.
By Cynthia D. Ettinger Tucson
Attorney for Appellants
Clarissa O. and Savanna O.

Cheryl S. Blum, P.C. Tucson
By Cheryl S. Blum Attorney for Appellants
Tony E. and Guadalupe E.
Matthew A. Jasper Tucson
Attorney for Appellee

E S P I N O S A, Judge.

¶1 In this appeal, the Arizona Department of Economic Security (ADES) and two

children contend the juvenile court erred by denying ADES’s motion to terminate the father’s

parental rights, despite the existence of a statutory ground for severance and the immediate

availability of a suitable adoptive placement for the children, based solely on the court’s

finding that terminating the father’s rights is not in the children’s best interests. Because the

record contains no reasonable evidence to support such a finding but, rather, establishes the

children’s lengthy out-of-home placement, the marginal nature of the father’s relationship

with the children, potential harm to the children from continuing the relationship, and

availability of a good adoptive home, we conclude that the trial court erred in not severing

the father’s parental rights.

Factual and Procedural Background

¶2 Clarissa O., born September 2, 1998, and Savanna O., born March 1, 2001, are

the second and third of four children born to appellee Oscar O. and his wife, Lydia O.

Clarissa and Savanna were adjudicated dependent in July 2001. Following a permanency

hearing in October 2002, the juvenile court directed ADES to file a motion to terminate both

parents’ rights to the girls.

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¶3 Lydia then executed a relinquishment of her parental rights, consenting to the

girls’ adoption by their maternal aunt and uncle, appellants Tony E. and Guadalupe E., with

whom they have been living since June 2001. The juvenile court terminated Lydia’s rights

pursuant to the relinquishment. Oscar contested the severance of his rights, and after a

lengthy hearing, the juvenile court found ADES had proved the statutory ground alleged, out-

of-home placement pursuant to A.R.S. § 8-533(B)(8)(b). The court nonetheless denied the

motion to sever Oscar’s rights, finding that terminating them would be contrary to the best

interests of the children. See § 8-533(B). ADES, the children, and the children’s foster

parents all appeal from the juvenile court’s ruling.

Standard of Review

¶4 As the juvenile court acknowledged in its minute entry, the standard of proof

in actions to terminate parental rights is clear and convincing evidence, Rule 66(C), Ariz. R.

P. Juv. Ct., 17B A.R.S.; Michael J. v. Arizona Department of Economic Security, 196 Ariz.

246, 995 P.2d 682 (2000), and the party seeking termination bears the burden of persuasion,

In re Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, 748 P.2d 785 (App.

1988). A juvenile court as the trier of fact in a termination proceeding is in the best position

to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve

disputed facts. Jesus M. v. Ariz. Dep’t Econ. Sec., 203 Ariz. 278, 53 P.3d 203 (App. 2002).

We therefore accept the juvenile court’s findings of fact “unless no reasonable evidence

supports those findings” and will affirm its severance order unless the order is clearly

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erroneous. Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70

(App. 1997).

Discussion

¶5 In the single issue raised on appeal, appellants contend there was no reasonable

evidence to support the juvenile court’s conclusion that it would be contrary to the best

interests of Clarissa and Savanna to terminate their “positive, though limited, relationship

with their father.” Oscar acknowledges the court failed to specify any evidentiary basis for

its conclusion, but suggests the court “likely considered” testimony by various witnesses that

the weekly supervised visits between Oscar and the girls were positive, appropriate, and

apparently enjoyable and that the girls displayed affection toward Oscar during the visits.

Nowhere in the juvenile court’s lengthy minute entry, however, did it mention any of the

testimony Oscar cites. The omission is notable here because of the volume of other evidence

the court did specifically refer to in its seven-page ruling.

¶6 To establish that terminating Oscar’s parental rights was in the children’s best

interests, ADES was required to show that the girls would derive an affirmative benefit from

termination or incur a detriment by continuing in the relationship. Jennifer B., 189 Ariz. at

557; see also In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d

730, 734 (1990). The existence of a current adoptive plan is one well-recognized example

of such a benefit. Id.; James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 972 P.2d 684

(App. 1998); In re Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 756 P.2d

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335 (App. 1988) (best interests of child in potentially foster-adoptive home favored

severance so child could be free for adoption); In re Maricopa County Juvenile Action No.

JS-8441, 175 Ariz. 463, 469, 857 P.2d 1317, 1323 (App. 1993) (“The benefit of severance

to the child is that which the legislature intended: freedom to be adopted into a stable and

nurturing home.”); In re Pima County Juvenile Action No. S-2460, 162 Ariz. 156, 158, 781

P.2d 634, 636 (App. 1989) (“The immediate availability of an adoptive placement obviously

weighs in favor of severance . . . .”); see also In re Maricopa County Juvenile Action No.

JS-501904, 180 Ariz. 348, 884 P.2d 234 (App. 1994) (even without firm plan of adoption,

severance benefits adoptable children by freeing them for adoption).

¶7 The undisputed evidence established that the girls’ aunt and uncle are willing

and immediately available to adopt them. The girls are still very young: when the severance

trial concluded, Clarissa was four years old, and Savanna was two. Clarissa had lived with

the aunt and uncle since she was seven months old, and Savanna since she was three months

old. Both girls are emotionally attached to the aunt and uncle, whom they consider “mommy

and daddy,” and the juvenile court found “[t]he placement, by all accounts, is very positive

and has provided an extremely beneficial effect on the children.” The court further found

that remaining in this placement is in the girls’ best interests. As far as we have determined,

the record is devoid of any evidence to the contrary.

¶8 In combination, the existence of a statutory ground for severance and the

immediate availability of a suitable adoptive placement for the children frequently are

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sufficient to support a severance order. See e.g. James S.; Maricopa County No. JS-6520.

The juvenile court found both here but also concluded it would be contrary to the children’s

best interests either to terminate or to expand their limited relationship with Oscar, which

was confined to two hours of supervised visitation a week. The court gave no reason for its

conclusion, but followed it with this statement:

The Court acknowledges the many bitter difficulties that the
adults have endured as a result of this case. The Court
acknowledges that there is a great deal of animosity between the
[foster parents] and the father. The Court cannot terminate a
parent’s rights due to the inability of the adults to have a
cooperative relationship.

Obviously, the court’s statement addressed Oscar’s parental rights, but it did not address the

best interests of the children. Nor did the juvenile court comment on the potential effects on

the children of a chronically high level of animosity and ongoing conflict between the adults

in their lives.1

¶9 The juvenile court’s failure to state an evidentiary basis for its contrary-to-best-

interests conclusion is particularly notable in light of the other observations and factual

findings the court made in its detailed and lengthy minute entry. They include the following:

• that Oscar has “a chronic history of substance abuse,” had in the past

abused prescribed narcotic medications, and had not complied with the random urinalysis

requirements of his case plan;

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Several witnesses referred to the pronounced hostility and conflict between Oscar and
the girls’ aunt and uncle.

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 • that Oscar had a history of domestic violence, had subjected Lydia to

episodes of violence, and that their inappropriately enmeshed relationship “remains

problematic”;

• that, “despite the diligent services offered by A.D.E.S.,” Oscar had not

adequately addressed the issues relating to his relationship with Lydia, which “renders him

unable to adequately parent the children”;

• that Lydia “remain[ed] extremely unstable as reflected in her recent

continued drug use and suicidal behaviors,” and Oscar’s failure to resolve his issues “relating

to his relationship with [her] would create tremendous instability in the lives of the children”;

• that Oscar had never adequately parented any of his children, and there was

no substantial likelihood he would be able to exercise proper parental care and control of

Clarissa and Savanna in the near future;

• that “[t]he neglectful and chaotic lifestyle to which the children were

exposed when the dependency petition was brought in this case would be repeated if the

children were to be returned to the physical custody of the father”;

• that, although the court could not conclusively determine whether Clarissa

had been sexually abused by members of Oscar’s family, her allegations “demonstrated

several indicia of reliability” and that, because Oscar had flatly “repudiated any possibility

that his brother or any other family member might have sexually abused his daughter,” he

“would not be vigilant of his daughters’ contact with potential[ly] harmful individuals”;

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 • that the girls “could not be safely returned to” Oscar;

• that Clarissa has spent “most of her life” and Savanna “the overwhelming

majority” of hers with the girls’ maternal aunt and uncle in a placement that is “very

positive” and “extremely beneficial”;

• that remaining with their aunt and uncle is in the girls’ best interests; and

• that expanding the limited relationship they currently had with Oscar would

not be in their best interests.

¶10 Virtually nothing in the six and one-half pages that precede the challenged

conclusion supports or even foreshadows the juvenile court’s determination that “it would

be contrary to the best interests of the children to terminate” their relationship with Oscar.

To the contrary, the court recited—without critique or comment—portions of the testimony

of several witnesses, none of whom stated or even intimated that terminating Oscar’s rights

would have a negative effect on the children.

¶11 First, the court noted:

A bonding and attachment specialist, Mr. Chuck Chiverton,
recommended that the children remain in their placement . . . .
Mr. Chiverton also recommended that the rights of the parents
be terminated.

Mr. Chiverton observed that the children identify the [aunt and
uncle] as their attachment figures. The children feel safe with
the[m] . . . .

Chiverton testified at trial that both Clarissa and Savanna are very securely attached to their

aunt and uncle, that Clarissa’s attachment to Oscar is insecure with some avoidant and

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disorganized behaviors, and that Savanna has no emotional attachment to Oscar at all, seeing

him instead as solely a sociable figure. Chiverton further opined that Oscar was unlikely “to

establish an attachment process with his daughters,” given the unresolved issues surrounding

Clarissa’s alleged molestation and Oscar’s failure to complete individual therapy.

¶12 The court next noted the testimony of Clarissa’s therapist, who concurred with

Chiverton’s assessment that a deep bond existed between Clarissa and her aunt and uncle.

The therapist testified that she had no concerns at all about the propriety of the children’s

placement. She reported the aunt and uncle had excellent parenting skills and had been

receptive and responsive whenever she had made suggestions for modifying some of

Clarissa’s behaviors. Further, she testified, it was “critical” to Clarissa’s development that

a permanency decision be made “soon.”

¶13 Finally, the court also recounted the testimony of the children’s primary

caseworker, Cheryl Russell, to the effect that the children were doing extremely well in their

current placement and that, in Russell’s opinion, terminating Oscar’s parental rights would

be in their best interests. The court’s minute entry identifies no testimony or other evidence

to the contrary.

¶14 We are mindful that our function on review is not to reweigh the evidence

before the juvenile court or supersede its assessment of the evidence with our own. Our task

for factual findings is solely to confirm that there is some reasonable evidence in the record

to sustain them. See Maricopa County No. JS-8441, 175 Ariz. at 465, 857 P.2d at 1319

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(“[T]he issue on appeal is whether any reasonable evidence supports the juvenile court’s

findings.”). After searching this record, we can find no evidence to support the court’s

conclusion that terminating Oscar’s parental rights would be contrary to the best interests of

Clarissa and Savanna.

¶15 The decision by Division One of this court in Maricopa County No. JS-6831

provides an instructive contrast. The juvenile court in that case had similarly denied a motion

to terminate parental rights, likewise finding that a statutory ground for severance had been

proved “but that the best interests of the children required denial of the termination petition.”

155 Ariz. at 557, 748 P.2d at 786. On appeal, Division One found the juvenile court’s

conclusion supported by the evidence, which it described as follows:

Both Dr. Thal and Dr. Lavit testified that the contact and
visitation between [the mother] and the children was beneficial
to the children, that they recognized [the mother] as their natural
mother, and that the potential for a deeper relationship between
[the mother] and her daughters existed. There was no evidence
that denial of termination would be detrimental to the children
[and] the record contains no reference to potential adoption of
the children by the [natural father and stepmother] . . . .

Id. at 559, 748 P.2d at 788. Here, conversely, there was no similar evidence that the girls’

enjoyable weekly visits with Oscar were truly beneficial or important to them and no

testimony about the possibility of a deeper relationship in the future. In fact, such evidence

as there was pointed in the opposite direction. In further contrast, there was no evidence here

that granting the termination would be detrimental to either of the children, for whom a

suitable, permanent, adoptive home stood waiting.

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¶16 Lacking any specific evidence that supports the conclusion that terminating

Oscar’s parental rights would somehow be detrimental to his young daughters, the record

instead suggests Oscar falls squarely within the category of parents § 8-533(B)(8) was

enacted to encompass:

Legislative history suggests that this amendment [adding
out-of-home placement as a ground for terminating parental
rights] was in response to the increasing number of children in
foster care whose parents maintain parental rights but refuse to
assume parental responsibilities. The express purpose of the
amendment is to “expedite the adoption of numerous children
who remain in temporary foster care [for indeterminate lengths
of time] with no hope of being returned to their natural parents
and, in so doing[,] promote a stable and long-term family
environment for these children.” 1986 Ariz. Sess. Laws, Ch.
205 §§ 1 and 6.

Thus, the intent of this provision was to enable children
to have a permanent family through adoption.

Maricopa County No. JS-6520, 157 Ariz. at 243, 756 P.2d at 340 (emphasis added); see also

James S., 193 Ariz. 351, ¶ 18, 972 P.2d at 689. Precisely that opportunity for permanency

and stability is available for these children, who—the evidence overwhelmingly

suggests—have virtually no hope of ever being placed in Oscar’s custody.

Disposition

¶17 Although a juvenile court clearly has authority to deny severance when the best

interests of the children will not be served thereby, the court here articulated no reason for

such a finding, nor does the evidence supply one. Having searched the record in vain for any

reasonable evidence to suggest that severance and adoption were not in Clarissa’s and

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Savanna’s best interests,2 and finding clear, convincing, and virtually uncontroverted

evidence in the record to support just the opposite conclusion, we reverse the order of the

juvenile court and remand the case with directions to grant the motion to terminate Oscar’s

parental rights.

PHILIP G. ESPINOSA, Judge

CONCURRING:

JOHN PELANDER, Chief Judge

M. JAN FLÓREZ, Presiding Judge

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In In re Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 804 P.2d 730
(1990), the supreme court reversed a conclusion that termination of a father’s rights was in
the best interests of the child, holding that his past abandonment, standing alone, did not
justify severance without additional proof of some affirmative benefit to the child that would
result from severance. The child in that case was unrepresented by counsel, and the court
noted that “the record on the issue of the best interests of the child might have been improved
if [the child] had been appointed independent counsel.” Id. at 8, 804 P.2d at 737. Here,
Clarissa and Savanna had independent counsel, who supported the effort to terminate Oscar’s
rights.

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