Bobby G. v. Ades & Allison G.

FILED BY CLERK
IN THE COURT OF APPEALS SEP 30 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

BOBBY G., )
) 2 CA-JV 2008-0009
Appellant, ) DEPARTMENT B
)
v. ) OPINION
)
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY and )
ALLISON G., )
)
Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause Nos. 18237399 and 17791100

Honorable Stephen M. Rubin, Judge Pro Tempore

AFFIRMED

Frederick S. Klein Tucson
Attorney for Appellant

Terry Goddard, Arizona Attorney General
By Pennie J. Wamboldt Tucson
Attorneys for Appellee Arizona
Department of Economic Security

Thea M. Gilbert Tucson
Attorney for Minor

E S P I N O S A, Judge.
¶1 Appellant Bobby G. challenges the juvenile court’s order terminating his

parental rights to his daughter, Allison, on grounds of abandonment and abuse under A.R.S.

§ 8-533(B)(1) and (2). He contends the court erroneously denied his motion to dismiss the

petition to terminate his parental rights and that the court’s factual findings regarding both

the grounds for termination and Allison’s best interests were not supported by sufficient

evidence. “[W]e will affirm a severance order unless it is clearly erroneous.” Jesus M. v.

Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002). We “accept the

juvenile court’s findings of fact unless no reasonable evidence supports those findings.” Id.

But we review issues of law, including “a juvenile court’s interpretation of a statute de

novo.” Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, ¶ 13, 178 P.3d 511, 515 (App.

2008).

Facts and Procedural Background

¶2 In April 2006, the Arizona Department of Economic Security (ADES) filed a

petition alleging that Allison and her two brothers were dependent children pursuant to

A.R.S. § 8-201(13).1 Child Protective Services reported to the juvenile court that the

children’s mother had an “extensive history of criminal activity and poly-substance abuse”;

she had given power of attorney over all three children to her former employers in March

2006, left Allison and the older brother with them, and abandoned the younger brother at a

1
The brothers have different fathers, and they are not parties to this appeal.

2
different location. Initially, Bobby’s whereabouts were unknown, but ADES eventually

located him living in Indiana.

¶3 In June 2006, Bobby admitted allegations in an amended dependency petition

that he had failed to support Allison and had been unable to maintain a meaningful

relationship with her and protect her from her mother’s neglect and substance abuse. The

amended petition included Bobby’s claim that Allison’s mother had stopped allowing him

to exercise his court-ordered visitation “after November 2001” and had moved “subsequent

to March 2002, . . . leaving him unaware of [Allison’s] and the mother’s whereabouts and

circumstances.” The juvenile court adjudicated Allison dependent and approved a plan for

family reunification. ADES offered reunification services to Bobby, and it is undisputed that

Bobby complied with all aspects of the case plan.

¶4 At the permanency planning hearing in April 2007, ADES recommended the

juvenile court allow Bobby additional time to establish a relationship with Allison and

expressed the opinion that no legal grounds for severance existed. ADES requested a ninety-

day continuance of the permanency planning hearing and “discretion to begin telephone

contact and face-to-face contact between [Bobby] and [Allison].” Allison’s therapist had

opined that Allison was not yet ready for such contact, but ADES told the court it was

“willing to find another therapist to facilitate family therapy.”

¶5 Allison’s counsel, however, urged the case plan be changed to severance and

adoption. She argued that severance was appropriate based on abandonment and abuse and

3
informed the juvenile court she would be filing a petition to terminate Bobby’s parental

rights. The court set a continued permanency planning hearing for May 15, 2007. On May

7, 2007, Allison’s counsel filed a severance petition pursuant to A.R.S. § 8-533.

¶6 Bobby moved to dismiss the petition, arguing that, because the permanency

planning hearing had begun, a petition for termination under § 8-533 was precluded, and the

only method of proceeding to terminate his parental rights was through a motion filed

pursuant to court order under A.R.S. § 8-862. The juvenile court determined “the existence

of a parallel dependency action [did] not preclude the filing of a Petition for Termination of

Parent-Child Relationship.” It consolidated the termination and dependency proceedings,

and it consolidated the contested termination hearing with the remainder of the permanency

planning hearing. After the combined hearing, the court terminated Bobby’s parental rights,

and this appeal followed.

Discussion

¶7 Bobby first argues the juvenile court erred by denying his motion to dismiss

Allison’s termination petition. As he did below, he contends that a petition for termination

of parental rights under § 8-533, as opposed to a motion for termination pursuant to § 8-

862(D)(1), may not be filed after a permanency hearing has begun. And he contends that

“[t]he interpretation the trial court placed on the Arizona statutes, viewing the two tracks for

severance as not mutually exclusive, would violate a parent’s rights to due process and equal

protection of the law.” We disagree.

4
¶8 Section 8-533(A) states: “[a]ny person or agency that has a legitimate interest

in the welfare of a child . . . may file a petition for the termination of the parent-child

relationship.” The statute does not expressly prohibit the filing of a termination petition after

a permanency planning hearing has begun in an ongoing dependency proceeding. Bobby

contends the legislature intended such a prohibition when it enacted provisions for motions

to terminate parental rights under the circumstances described in § 8-862(D)(1). Section

8-532(C), A.R.S., states: “This article does not apply to termination proceedings conducted

pursuant to chapter 10, article 4 of this title [§§ 8-861 through 8-864].” Bobby interprets the

provision to mean that “the petition for termination of parent-child relationship does not

apply and may not be used where termination is sought once a permanency hearing has

begun.”

¶9 “When interpreting a statute, our primary purpose is to ‘effectuate legislative

intent,’ and a statute’s plain language is the ‘best evidence of that intent.’” In re Maricopa

County Mental Health No. MH 2006-000490, 214 Ariz. 485, ¶ 10, 154 P.3d 387, 390 (App.

2007), quoting In re Maricopa County Mental Health No. 2001-001139, 203 Ariz. 351, ¶ 12,

54 P.3d 380, 382 (App. 2002); see also Kimu P., 218 Ariz. 39, ¶ 16, 178 P.3d at 515. The

same principles that apply to statutory construction apply to the interpretation of procedural

rules promulgated by our supreme court. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218

Ariz. 205, ¶¶ 16, 18, 181 P.3d 1126, 1131 (App. 2008). Bobby’s interpretation of § 8-532(C)

is simply unwarranted by the plain meaning of the words the legislature used. Section 8-532

5
states: “This article [article 2] does not apply to termination proceedings conducted pursuant

to chapter 10, article 4 of this title, except to the extent prescribed in § 8-863.” It does not

state that a party is prohibited from filing a petition pursuant to article two once any

proceedings pursuant to chapter ten, article four have begun. Moreover, termination

proceedings pursuant to chapter ten of article four are only begun once a court has ordered

ADES, the child’s attorney, or the guardian ad litem, to file a motion for termination of

parental rights. See A.R.S. § 8-862(D)(1). That did not happen in this case. Thus, by its

own terms, § 8-532(C) did not prohibit application of § 8-533 allowing “[a]ny person or

agency that has a legitimate interest in the welfare of a child” to file a petition for termination

of parental rights.2

¶10 Bobby also asserts that Rule 64(B), Ariz. Juv. R. Ct., confirms his

interpretation of § 8-532(C). Rather than support Bobby’s interpretation, however, the plain

language in Rule 64(B) actually refutes it. Bobby relies on the portion of the rule that states:

“If the child at issue is not a dependent child or is a dependent child who was the subject of

a dependency petition filed prior to July 1, 1998, the petitioner shall file a petition for

termination of parental rights, pursuant to A.R.S. § 8-534.” But he ignores the final sentence

of the rule: “Nothing in this rule shall preclude the filing of a petition in those cases where

the child was the subject of a dependency petition filed after July 1, 1998.” Taken together,

2
We note, however, that the juvenile court here correctly consolidated the proceedings
pursuant to the petition for termination with the ongoing dependency proceedings.

6
the statutory provision and supreme court rule make clear that Arizona’s statutes provide two

procedurally distinct paths toward termination of parental rights, but they do not prohibit the

filing of a petition for termination at any time before a motion for termination is ordered. Cf.

Kimu P., 218 Ariz. 39, ¶¶ 14, 17, 178 P.3d at 515-16 (“Our juvenile statutes provide for two

separate procedural mechanisms by which a termination of parental rights may be obtained”

and, based on the plain language of the statutes, appropriate parties have the option of

pursuing termination by petition despite previous initiation of an ongoing dependancy

proceeding.).

¶11 Bobby additionally argues that “[t]he interpretation the trial court placed on the

Arizona statutes, viewing the two tracks for severance as not mutually exclusive, would

violate a parent’s rights to due process and equal protection of the law.” He also contends

“[t]he statutory interpretation taken by the trial court . . .would deprive [him] in this case of

the right to be given the opportunity to preserve a relationship with his daughter at the whim

of any private party who chooses to file a private petition.” But as we have explained above,

the juvenile court correctly interpreted and applied the statute. Moreover, § 8-862(D)(1)

incorporates the grounds for termination provided in § 8-533, and neither § 8-533 nor federal

law requires that a parent be provided reunification services before the court may terminate

the parent’s rights on the ground of abandonment. See Toni W. v. Ariz. Dep’t of Econ. Sec.,

196 Ariz. 61, ¶¶ 7-9, 993 P.2d 462, 465 (App. 1999). In any event, ADES did provide Bobby

with reunification services. And, Bobby concedes that Allison “[c]learly . . . could have filed

7
a petition for termination . . . prior to a dependency proceeding being brought.” Thus, the

fact that Allison, a private party, is the petitioner as opposed to ADES, an agency of the state,

is a distinction without a difference. We find no error in the juvenile court’s denial of

Bobby’s motion to dismiss.

¶12 Bobby next contends the juvenile court’s factual findings as to the grounds for

termination are not supported by sufficient evidence. Because we find there was sufficient

evidence for the court to conclude that Bobby abandoned Allison, we need not decide

whether the evidence was also sufficient to support the termination of Bobby’s parental rights

on the ground of abuse pursuant to § 8-533(B)(2). See Michael J. v. Ariz. Dep’t of Econ.

Sec., 196 Ariz. 246, ¶ 12, 995 P.2d 682, 685 (2000) (“To justify termination of the parent-

child relationship, the trial court must find, by clear and convincing evidence, at least one of

the statutory grounds set out in section 8-533 . . . .”); Jesus M. v. Ariz. Dep’t of Econ. Sec.,

203 Ariz. 278, ¶ 3, 53 P.3d 203, 205 (App. 2002) (“If clear and convincing evidence supports

any one of the statutory grounds on which the juvenile court ordered severance, we need not

address claims pertaining to the other grounds.”).

¶13 Bobby argues that “§ 8-531(1) requires, at a minimum, that a parent both fail

to provide reasonable support and fail to maintain regular contact with a child in order to

support a finding of abandonment.” He contends the juvenile court “made no finding that

[he had] failed to provide reasonable support to [Allison].” He also contends “the evidence

presented at the severance hearing demonstrated that no year passed without [Bobby’s]

8
contributing to [Allison’s] support, either through direct payments, wage assignments, or

attachments of income tax refunds or a combination thereof.” But “the juvenile court will

be deemed to have made every finding necessary to support [its] judgment.” In re Maricopa

County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991),

quoting In re Pima County Sev. Action No. S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 872

(1985). And as Bobby acknowledges, a parent’s “[f]ailure to maintain a normal parental

relationship with the child without just cause for a period of six months constitutes prima

facie evidence of abandonment.” A.R.S. § 8-531(1).

¶14 Bobby asserts that just cause existed for his failure to maintain a relationship

with Allison for nearly half of her life because Allison’s mother concealed her from him. But

the court clearly rejected Bobby’s claim of concealment, finding his assertion that the mother

had been hiding Allison from him “without merit” and noting the mother had continued to

reside and work in Tucson. The court also noted the lack of documentary evidence that

Bobby “did a single thing to locate his child for a period of four years” and found that

Bobby’s “efforts to contact Allison . . . [had been] minimal at best.” See Jesus M., 203 Ariz.

278, ¶ 4, 53 P.3d at 205 (“The 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 make appropriate findings.”). In its minute entry, the court accurately

described more than sufficient evidence that Bobby had failed to “provide reasonable support

and to maintain regular contact” with Allison for a period of approximately four years.

9
Although Bobby challenges the court’s ultimate determination, he does not assert the court

misstated the evidence. Thus, we affirm the court’s finding that Bobby abandoned Allison.

¶15 Finally, Bobby contends the evidence was insufficient to support a finding that

termination of his parental rights was in Allison’s best interests. A best-interests

determination need only be supported by a preponderance of the evidence. See Kent K. v.

Bobby M., 210 Ariz. 279, ¶ 22, 110 P.3d 1013, 1018 (2005). Evidence that a child will

derive “an affirmative benefit from termination” is sufficient to satisfy that burden, and “[t]he

existence of a current adoptive plan is one well-recognized example of such a benefit.” Ariz.

Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 6, 100 P.3d 943, 945 (App. 2004) (citations

omitted). But, a “specific adoption plan” is not a prerequisite to termination; the juvenile

court may rely on evidence that the child is adoptable and the existing placement is meeting

the child’s needs. In re Maricopa Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d

234, 238 (App. 1994). In this case, it is uncontested that the foster parents desire to adopt

Allison and her brothers and that Allison is thriving in their care. The court found that

Allison and her older brother “are closely bonded” and that it would not be “in Allison’s best

interest that she be separated from [him].” Bobby essentially contends the court ignored

evidence that supported a finding that termination was not in Allison’s best interests. But

nothing in the record suggests the court did not consider all of the evidence presented. And,

as noted above, the court is in the best position to weigh conflicting evidence. See Jesus M.,

10
203 Ariz. 278, ¶ 4, 53 P.3d at 205. Thus, we have no basis for disturbing the court’s finding

that termination of Bobby’s parental rights was in Allison’s best interests.

Disposition

¶16 For the reasons stated herein, we affirm the juvenile court’s order terminating

Bobby’s parental rights to Allison.

PHILIP G. ESPINOSA, Judge

CONCURRING:

PETER J. ECKERSTROM, Presiding Judge

GARYE L. VÁSQUEZ, Judge

11