                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            JOHANNA K., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, R.H., Appellees.

                              No. 1 CA-JV 15-0203
                               FILED 12-22-2015


              Appeal from the Superior Court in Yuma County
                           No. S1400JD20130331
                The Honorable Mark Wayne Reeves, Judge

                                   AFFIRMED


                                    COUNSEL

Mary Elizabeth Perez, San Diego, CA
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee Department of Child Safety
                        JOHANNA K. v. DCS, R.H.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Johanna M. (“Mother”) appeals the juvenile court’s order
severing her parental rights to her biological child, R.H. (“Child”). Mother
does not contest the findings of the statutory ground for severance, but
contends the juvenile court erred in concluding severance was in the
Child’s best interest. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            The Child, born in 2005, came into the care of the Department
of Child Safety (“DCS”), was found to be dependent as to both parents due
to Mother’s mental illness and both parents’ neglect, domestic violence, and
substance abuse, and was placed with her paternal grandmother and
paternal step grandfather (collectively “the Grandparents”), with whom the
Child’s half-sibling also resided.

¶3             DCS offered Mother an array of services and assistance—
such as substance-abuse services, drug testing, psychological counseling
(including domestic-violence counseling), parenting classes, parent-aide
services, supervised visits, and transportation—geared toward
reunification. Mother minimally participated in the services, never tested
negative for controlled substances, denied any mental health need, and did
not recognize her behaviors could and did negatively impact the Child.
Mother was not employed and did not have a residence of her own. The
Child was fearful of Mother and was adamant that she did not want to see
Mother at all.

¶4         In 2014, DCS moved to sever the parental relationship
between Mother1 and the Child on the ground of cumulative fifteen-month


1      DCS did not seek to sever the parental rights of the Child’s biological
father (“Father”) and, instead, suggested reunification and permanent
guardianship as the concurrent case plan with severance and adoption



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                        JOHANNA K. v. DCS, R.H.
                          Decision of the Court

out-of-home placement, and asserted severance would serve the best
interest of the Child. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c).2
Sometime later, DCS moved to dismiss the severance petition, arguing it
now believed that severance would not be in the best interest of the Child
because the Child would not be adoptable as Father’s parental rights were
still intact, the Child would lose any inheritance from Mother and social
security benefits in the event of Mother’s death, and potential concerns for
the Child’s mental health stemming from interaction with Mother could be
addressed by court orders or exercise of guardianship authority by the
Grandparents. The court denied DCS’s motion to dismiss the severance
petition, and continued with the severance proceedings. After a bench trial,
the juvenile court found DCS had met its burden of proving the statutory
ground and that severance was in the Child’s best interest, and severed
Mother’s parental rights.3

¶5            Mother timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

                                ANALYSIS

¶6           Mother appeals only the portion of the court’s order finding
that severance was in the Child’s best interests.4 Unless the trial court’s


because Father had complied to date with the services provided by DCS,
and had remained free of controlled substances.

2     We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the events in question.

3     After the severance, the juvenile court appointed the Grandparents
as permanent guardians of the Child as to Father.

4       In its answering brief, DCS contends the denial of its motion to
dismiss its severance petition is not reviewable on this appeal. We disagree
because the denial of that motion was an intermediate order that
substantively affected the judgment of severance and involved the merits
of the action, i.e., whether severance was in the best interest of the Child.
See A.R.S. § 12-2102(A) (requiring the appellate court review any
intermediate orders involving the merits of the action and necessarily
affecting the judgment); Truck Ins. Exch. v. State Comp. Fund, 138 Ariz. 116,
118, 673 P.2d 314, 316 (App. 1983) (holding we review such an intermediate
order).

                                      3
                         JOHANNA K. v. DCS, R.H.
                           Decision of the Court

findings of fact were clearly erroneous, we will not disturb the court’s
severance order absent an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). On appeal, we
view the evidence in the light most favorable to upholding the juvenile
court's order and will affirm the court’s factual findings if “supported by
reasonable evidence.” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–
94, ¶ 4, 210 P.3d 1263, 1264–65 (App. 2009); Manuel M. v. Ariz. Dep’t of Econ.
Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008).

¶7             Parental rights in the care, custody, and management of their
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,
¶¶ 11–12, 995 P.2d 682, 684 (2000)). The juvenile court may still sever those
rights if it finds clear and convincing evidence of one of the statutory
grounds for severance, and finds by a preponderance of the evidence that
severance is in the best interest of the children. See A.R.S. §§ 8-533(B), -
537(B); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–16, 1022.
Mother does not contest the juvenile court’s findings on the statutory
ground and, thus, has waived any argument on that ground in this appeal.
See Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418
(App. 2000) (stating that issues not clearly raised in appellate briefs are
deemed waived).

¶8             To prove severance is in a child’s best interest, DCS must
show that severance either provides an affirmative benefit because the child
is adoptable or is more stable in an existing placement, or eliminates a threat
or detriment to the child if the relationship between the parent and the child
is allowed to continue. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1,
6–7, 804 P.2d 730, 735–36 (1990); Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz.
332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004).5 The best interest requirement
may be met if, for example, a current adoptive plan exists for the child, or
even that the child is adoptable. JS–500274, 167 Ariz. at 6, 804 P.2d at 735;
Maricopa Cty. Juv. Action No. JS–501904, 180 Ariz. 348, 352, 884 P.2d 234, 238
(App. 1994). The juvenile court may also consider evidence that an existing
placement is meeting the needs of the child in determining severance is in
the child’s best interest. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376,
377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). The court may also take into

5       We note, in presenting her best-interest argument, Mother’s counsel
relies in part on Angel S. v. Dep’t of Child Safety, 237 Ariz. 132, 347 P.3d 578
(App. 2015), which was depublished by Angel S. v. Dep’t of Child Safety, 238
Ariz. 84, 357 P.3d 119 (2015) before the filing of her brief.

                                        4
                        JOHANNA K. v. DCS, R.H.
                          Decision of the Court

account that, in most cases, “the presence of a statutory ground [for
severance] will have a negative effect on the children.” Bennigno R. v. Ariz.
Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23, 312 P.3d 861, 866 (App. 2013)
(quoting Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d
785, 788 (App. 1988)).

¶9             This record here supports the juvenile court’s finding that
severance was in the best interest of the Child. First, severing Mother’s
parental rights would affirmatively benefit the Child. It would give the
Child peace of mind, and she would not be stressed by continuing
interactions with Mother; the Child could live in a stable, violence- and
drug-free environment, and maintain the existing bond with her half-
sibling. Also, the current placement with the Grandparents meet the
Child’s needs. Second, leaving Mother’s parental rights intact would be
detrimental to the Child. Mother refuses to acknowledge her mental health
problems and her role in causing the strained relationship between her and
the Child, or to take measures to repair the relationship. Further, based on
the testimony presented at the severance hearing, the court found that there
is a substantial likelihood that Mother will not be capable of exercising
proper and effective parental care and control in the near future. And,
although the Child presently does not need therapy, Mother’s further
attempts to contact or interact with the Child or to contest the guardianship
would likely create further anxiety for the Child, triggering a likely need
for professional intervention. And, finally, as noted above, Mother has not
contested the existence of a statutory ground for severance; as such, the
juvenile court could find that the existence of that ground will also likely
negatively affect the Child.

¶10            Mother reiterates the same arguments advanced by DCS
during the hearing on its motion to dismiss the severance petition, and
contends severing her relationship with the Child would not produce any
benefit to the Child. She further argues that the severance would in fact be
detrimental to the Child because the Child would not be adoptable as
Father’s parental rights are not severed. She also contends that any
problems associated with the Child’s fear toward her can be managed
within the context of the existing guardianship, and the Child would lose
social security death benefits and any inheritance from Mother. The
juvenile court was not persuaded by these arguments, and this court is not
persuaded either.

¶11           First, the possibility of adoption for the Child has not been
foreclosed because Father’s parental rights may be severed in the future and
the Grandparents are willing to adopt the Child if necessary. Moreover,


                                     5
                        JOHANNA K. v. DCS, R.H.
                          Decision of the Court

even if an adoption plan is not currently in place for a child or the child is
not adoptable, severing parental rights of the child’s parent can still serve
the best interest of the child because the availability of adoption is only one
of the factors to consider in the process of weighing the benefits of
severance against the detriments from continuation of the parent-child
relationship. Pima Cty. Juv. Action No. S-2460, 162 Ariz. 156, 157–58, 781
P.2d 634, 635–36 (App. 1989). Second, Grandparents are currently the
Child’s appointed guardians and the Child has thrived at the current
placement at the Grandparents’ home. With severance of Mother’s parental
rights, the Child can remain in a stable, permanent environment without
worrying whether and when Mother would return. Without severance, it
is unlikely that the Child’s fear toward Mother could realistically be
eliminated or effectively managed, either in continuing juvenile court
proceedings or via guardianship proceedings in the probate court. Third,
the argument of losing social security benefits or a potential inheritance is
tenuous and unpersuasive; such a potential loss exists in every severance
proceeding.

¶12            Mother argues that a ten-year-old girl may understandably
have emotional issues with her mother, but that the Child’s feelings toward
her may change in the future, and there is no evidence of physical abuse or
emotional cruelty that justifies the permanency of severance. To the
contrary, there is no evidence in the record that shows Mother has
acknowledged her role and responsibility in creating and perpetuating the
strained relationship between her and the Child, or that Mother has taken
any steps to improve the relationship. The Child is adamant in her desire
not to see Mother ever again. Without any behavioral changes from
Mother, there is nothing in the record to suggest that the Child’s feelings
toward Mother will likely change. The statutory ground for severance was
fifteen months out of home placement; accordingly, the absence of
documented physical or emotional abuse is not a compelling factor in the
court’s best-interest analysis.

¶13          Mother also implies the juvenile court unfairly severed her
parental rights while leaving Father’s rights intact, pointing out that the
same ground for severance exists as to Father. This assertion is not
supported by the record. Although Father is not ready to resume his
parental duties, he has, unlike Mother, successfully completed the services
provided by DCS; accordingly, the statutory ground of fifteen-month out-
of-home placement does not yet apply to Father. In addition, Father and
the Child have a good and stable relationship, one that the Child currently
wishes to maintain.



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                       JOHANNA K. v. DCS, R.H.
                         Decision of the Court

                             CONCLUSION

¶14          The juvenile court did not abuse its discretion in finding that
the Child’s best interest would be served by severing Mother’s parental
rights, and we affirm that order.




                                  :ama




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