Michael O. v. Dcs, C.O. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHAEL O., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.O., Appellees.
No. 1 CA-JV 22-0002
FILED 6-16-2022
Appeal from the Superior Court in Maricopa County
No. JD37986
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By James William Rappaport
Counsel for Appellee Department of Child Safety
Joshua Fry Law, Phoenix
By Joshua Fry
Counsel for Appellee C.O.
MICHAEL O. v. DCS, C.O.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Michael O. (“Father”) appeals the juvenile court’s termination
of his parental rights to his child, C.O. For the reasons below, we affirm.1
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Father has had a long history of domestic violence and substance abuse. In
June 2019, the Arizona Department of Child Safety received a report that
Father had engaged in escalating domestic violence with C.O.’s mother and
that the two were abusing illegal substances. Despite the Department’s
intervention, Father engaged in domestic abuse with another woman a few
weeks later. Father and mother then left C.O. with a paternal aunt. When
the paternal aunt could no longer care for C.O. and the Department could
not locate either parent, the Department assumed custody, petitioned for
dependency, and the court found C.O. dependent as to Father in December
2019.
¶3 The Department offered Father many services, including
substance-abuse treatment and domestic-abuse counseling. Shortly after
engaging in services, however, Father was caught with drugs and was
incarcerated until March 2020 for violating his parole. After his release, he
continued to use drugs—including methamphetamine—through August
2021. He was also arrested on domestic violence charges three times in
February 2021. As a result, the Department moved to terminate Father’s
parental rights on the substance-abuse and 15 months in out-of-home
placement grounds.
¶4 The juvenile court held a two-day termination hearing in
October and November 2021. During the hearing’s first day, the
Department’s case manager stated that foster mother wanted to adopt C.O.,
1 The child’s mother is not a party to this appeal.
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MICHAEL O. v. DCS, C.O.
Decision of the Court
and that even if foster mother could not adopt C.O., he was still
“adoptable.” Before the second day of the hearing, however, foster mother
told the Department that she would no longer adopt C.O. but would
continue to remain his foster mother until an adoptive placement could be
found.
¶5 At the hearing’s second day, the Department’s case manager
testified that C.O. nonetheless remained adoptable based on his age and the
fact that he did not exhibit any new behavioral disorders. Indeed, although
he understood foster mother’s concern about C.O.’s aggressive behaviors
and PTSD, he stated that C.O.’s trauma therapy and additional behavioral
services had helped keep his behaviors from worsening. He then said that
if Father’s rights were terminated, C.O. would be transferred to the
Department’s adoption unit, where the Department could work specifically
with C.O. to find an adoptive placement and could use various outside
adoption services to achieve permanency for C.O. He also stated that after
parental rights have been terminated to a particular child, more people
would be willing to adopt the child.
¶6 The juvenile court terminated Father’s parental rights on the
substance-abuse and 15 months in out-of-home placement grounds. It also
found termination in C.O.’s best interests because it furthered the adoption
plan and would provide C.O. with permanency and stability. While C.O.
was not in adoptive placement at the time of severance, he remained
adoptable and would be cared for until a new adoptive home could be
found. The juvenile court alternatively concluded that continuing the
parent-child relationship would harm C.O. because although Father had
just engaged in substance-abuse treatment, C.O. would linger in care for an
indeterminate period without parents to care for him, a detriment. Father
timely appealed.
DISCUSSION
¶7 Father does not challenge the juvenile court’s finding that the
statutory grounds for termination were met. Rather, Father argues that the
juvenile court erred in finding that C.O. was adoptable, and that
termination was otherwise in C.O.’s best interests. A juvenile court’s
termination determination is reviewed for an abuse of discretion. Mary Lou
C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004). To terminate
parental rights, the juvenile court must find by clear and convincing
evidence the existence of at least one statutory ground under A.R.S. § 8–533
and by a preponderance of the evidence that termination would be in the
child’s best interests. A.R.S. § 8–533(B); Ariz. R.P. Juv. Ct. 66(C); Jennifer S.
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MICHAEL O. v. DCS, C.O.
Decision of the Court
v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016). Because the
juvenile court is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts, Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (App. 2004), we will
affirm a termination decision unless no reasonable evidence supports it,
Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012).
¶8 Termination of parental rights is in a child’s best interests if
the child will benefit from the termination or will be harmed if the
relationship continues. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150
¶ 13 (2018). In determining whether the child will benefit from termination,
relevant factors include whether the current placement is meeting the
child’s needs, an adoption plan is in place, and if the child is adoptable.
Demetrius L., 239 Ariz. at 3–4 ¶ 12. The juvenile court may find that
continuing the parent-child relationship would be detrimental to the child’s
wellbeing because the child would linger in care with no prospect of
reunifying with the parent. See Aleise H. v. Dep’t of Child Safety, 245 Ariz.
569, 571–72 ¶¶ 6, 10 (App. 2018). The juvenile court presumes that the
interests of the parent and child have diverged once one of the statutory
grounds for termination has been proved. Alma S., 245 Ariz. at 150 ¶ 12.
¶9 Reasonable evidence shows that continuing the parent-child
relationship would harm C.O. Father continuously endangered C.O. by
engaging in domestic violence in front of him. Father also prioritized drug
use over C.O.’s health and safety. Although he began to engage in substance
abuse treatment a few weeks before the trial, he remained far from being
able to care for C.O., thereby subjecting him to long-term instability with
no prospect of reunifying soon, a clear detriment. Aleise H., 245 Ariz. at
571–72 ¶¶ 6, 10; Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350
¶ 23 (App. 2013) (“[T]he continued presence of the conceded statutory
grounds for [termination] also may, in certain cases, negatively affect the
children.”).
¶10 Reasonable evidence also supports the trial court’s conclusion
that C.O. would benefit from termination of Father’s parental rights.
Although C.O.’s foster mother said that she no longer wanted to adopt him,
the Department provided evidence that C.O. is adoptable, and that
adoption was likely. See Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 370
¶ 22 (App. 2018). While he has shown aggressive tendencies and has been
diagnosed with PTSD, C.O. is young and has been in trauma treatment,
which has helped with his aggressive behaviors. Recognizing C.O.’s
behaviors, the Department’s case manager testified that C.O. would have
increased services available to help the Department find a potential
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MICHAEL O. v. DCS, C.O.
Decision of the Court
adoptive parent for him and that finding a foster family was likely.
Contrary to Father’s argument otherwise, such evidence, along with the
other factors stated above, supports a best interests finding. See In re
Maricopa Cnty. Juv. Action No. JS–501904, 180 Ariz. 348, 352 (App. 1994)
(stating that the Department “need not show that it has a specific adoption
plan before terminating a parent’s rights,” but must “show that the children
are adoptable”); Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98 ¶ 11
(App. 2016) (a child may be adoptable despite no current adoptive plan).
¶11 Father argues, however, that the court’s adoptability finding
was speculative. He analogizes the facts here to those in Titus S. In Titus S.,
this court reversed the trial judge’s adoptability finding based on its hope
that teenage children would consent to an adoption that they did not want
at the termination hearing. 244 Ariz. at 371 ¶ 24. He claims that the juvenile
court similarly hoped that current foster mother would change her mind
and adopt C.O. But the trial court here found C.O. adoptable despite C.O.’s
current foster mother’s saying she would not adopt him, and evidence
supported that conclusion. The court therefore did not err in finding
termination in C.O.’s best interests.
CONCLUSION
¶12 For the reasons stated, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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