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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
E.O., Appellant,
v.
MICHAEL M., KATIE A., Appellees.
No. 1 CA-JV 14-0310
FILED 8-6-2015
Appeal from the Superior Court in Maricopa County
No. JS 517064
The Honorable Janice K. Crawford, Judge
VACATED AND REMANDED
COUNSEL
Terrea L. Arnwine, P.L.L.C.
By Terrea L. Arnwine
Guardian ad litem for child
Katie A.,
Appellee Mother
Gates Law Firm, L.L.C., Phoenix
By S. Marie Gates
Counsel for Appellee Father
E.O. v. MICHAEL M., KATIE A.
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop
joined.
D O W N I E, Judge:
¶1 Terrea L. Arnwine, Guardian ad Litem (“GAL”) for minor
child E.O. (“the Child”), appeals the juvenile court’s order denying a
petition to sever the parental rights of Michael M. (“Father”). For the
following reasons, we vacate that order and remand for reconsideration of
the Child’s best interests.
FACTS AND PROCEDURAL HISTORY
¶2 The Child was born in August 2007 to Father and Katie A.
(“Mother”), who were unmarried but cohabiting at the time. Thereafter,
Mother and the Child moved in with the maternal grandparents, and
Father resided with the Child’s paternal grandmother.
¶3 During the Child’s early years, Mother and Father
maintained a sporadic romantic relationship marked by ongoing conflict
that led to injunctions against harassment, orders of protection, and
domestic violence charges.
¶4 In December 2007, Father was incarcerated for three months
on charges including theft of means of transportation and fraud. Mother
subsequently petitioned for and received sole custody of the Child in
family court proceedings; Father was awarded weekly supervised
parenting time. After his release from jail, Father had regular visitation
with the Child, supervised by the paternal grandmother and paternal
great grandparents.
¶5 In 2010, Father was incarcerated for a burglary conviction.
Mother and Father initially stayed in touch through phone calls and
letters, and Father attempted to maintain a relationship with the Child by
sending her drawings. In September 2012, Mother ended her relationship
with Father after meeting A.A. (“Stepfather”). Mother and Stepfather
married in April 2013. The Child continued to regularly visit Father’s
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E.O. v. MICHAEL M., KATIE A.
Decision of the Court
family, and Father sent the Child correspondence and gifts. Mother
stopped permitting visits with Father’s family in February 2014.
¶6 Mother filed a severance petition in August 2013, seeking to
terminate Father’s parental rights on the basis that he was incarcerated on
a felony conviction for a length of time that would deprive the Child of a
normal home for a period of years. The juvenile court appointed Arnwine
as GAL for the Child. Mother later filed an amended petition that alleged
abandonment and “incapacity” as additional grounds for severance.
¶7 After a two-day severance trial, the court ruled that although
Father had abandoned the Child, severance was not in her best interests.
The GAL timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
-2101(A)(1).
DISCUSSION
¶8 As a threshold matter, Father suggests that the GAL’s notice
of appeal is defective because “there is no avowal that counsel
communicated with the child or was unable to communicate due to the
child’s age.” Father cites no authority for his contention, though we
presume he is relying on Arizona Rule of Procedure for the Juvenile Court
104(B), which states:
When the appellant is represented by counsel, the notice of
appeal or cross-appeal shall contain the following statement:
“By signing and filing this notice of appeal, undersigned
counsel avows that [he/she] communicated with the client
after entry of the judgment being appealed, discussed the
merits of the appeal and obtained authorization from the
client to file this notice of appeal.”
¶9 The GAL, though, is not appearing as the Child’s counsel.
She is “an officer of the court appointed to protect the child’s interests
without being bound by the child’s expressed preferences.”1 American
1 The GAL erroneously refers to herself in the opening brief as
“Attorney for the Child.” She was appointed solely as GAL. The juvenile
court expressly declined to appoint counsel for the Child. Father does not
argue the GAL lacks standing to raise the arguments set forth in the
opening brief. See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491 n.2,
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E.O. v. MICHAEL M., KATIE A.
Decision of the Court
Bar Association, Standards of Practice for Lawyers who Represent Children in
Abuse and Neglect Cases § A-2 (1996); see also Castro v. Hochuli, 236 Ariz. 587,
591-92, ¶ 11, 343 P.3d 457, 461-62 (App. 2015). We have previously held
that, “just as Rule 104(B) is not triggered when a party files a notice on his
or her own behalf, Rule 104(B) is not triggered by a GAL’s filing.” Cecilia
A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286, 288, ¶ 7, 274 P.3d 1220, 1222
(App. 2012).
¶10 To justify severance of parental rights, the juvenile court
must find at least one statutory ground enumerated in A.R.S. § 8-533(B) by
clear and convincing evidence. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a
preponderance of the evidence that severance is in the child’s best
interests. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013,
1022 (2005).
¶11 The court here ruled that Father had abandoned the Child —
a determination that has not been challenged on appeal. Despite this
finding, the court concluded that terminating Father’s parental rights was
not in the Child’s best interests. It is this determination that the GAL
challenges — arguing that the court improperly focused on a concern that
severing Father’s rights would jeopardize the Child’s relationship with
her paternal grandmother and paternal great grandparents.
¶12 At the outset of its best interests analysis, the juvenile court
cited several factors that clearly weigh in favor of severance. It noted, for
example, that Stepfather wishes to adopt the Child and that he “has taken
on the role of being a father to [her].” The court further found that Mother
and Stepfather “provide the Child with a safe, stable and happy home”
and “provide for all of [her] needs.” See Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (factors that
weigh in favor of severance include the availability of an adoptive
placement and a placement that is meeting the child’s needs). The court
then discussed the Child’s relationship with her paternal relatives, stating:
The Child has a close bonded relationship with Paternal
Great Grandparents and Paternal Grandmother. Before
Father’s incarceration, Paternal Great Grandparents
supervised Father’s parenting time and had the Child every
¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (issue not developed by party on
appeal deemed waived).
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E.O. v. MICHAEL M., KATIE A.
Decision of the Court
weekend even when Father was not present for his
parenting time. After Father’s incarceration in 2010, Mother
allowed Paternal Great Grandparents to have the Child at
their home on most weekends. Paternal Great Grandfather
picked the Child up from school when asked by Mother.
The Child has her own room at Paternal Great
Grandparents’ home.
....
Although an adoption by Mother’s husband may serve the
Child’s best interest, severing Father’s parental rights will
likely result in the Child losing her relationship with
Paternal Great Grandparents. The Court finds that it is not
in the Child’s best interest to lose her relationship with
Paternal Great Grandparents. Accordingly,
Mother’s Amended Petition for Termination of Parent-Child
Relationship . . . is denied.
¶13 We infer that the juvenile court understood that, under the
law, severance likely would end any relationship between the Child and
her paternal relatives. As the GAL observes, however, under A.R.S. § 25-
409(C), grandparents and great grandparents may petition for visitation
with a child born out of wedlock. If they were to file a petition for
visitation while Father remains the Child’s legal parent, a subsequent
severance and adoption by Stepfather would not extinguish any visitation
rights awarded to them. See A.R.S. § 25-409(H) (automatic termination of
visitation rights does not apply “if the child is adopted by the spouse of a
natural parent after the natural parent remarries”). At the time of the
severance trial, however, the paternal relatives had taken no legal steps to
establish such rights.
¶14 Aside from its concern that the Child might lose her
relationship with the paternal relatives if Father’s rights were severed, the
juvenile court cited nothing that supports a refusal to terminate on best
interests grounds. Because it appears that the court placed almost
singular reliance on that circumstance, without considering the paternal
relatives’ ability to seek and obtain visitation in the family court, we
vacate the order denying Mother’s severance petition and remand for
reconsideration of the Child’s best interests. The paternal relatives’ failure
to seek a visitation order should not serve as a bar to stability and
permanence for the Child through adoption.
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E.O. v. MICHAEL M., KATIE A.
Decision of the Court
CONCLUSION
¶15 For the foregoing reasons, we vacate the order denying
Mother’s severance petition. We remand to the juvenile court for further
proceedings relating to the Child’s best interests.
:RT
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