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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             SARAH R., Appellant,

                                        v.

                         JEREMY R., C.R., Appellees.

                             No. 1 CA-JV 15-0270
                               FILED 2-9-2016


           Appeal from the Superior Court in Yavapai County
                        No. P1300SV201400012
                 The Honorable Celé Hancock, Judge

                                  REVERSED


                                   COUNSEL

Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant

Prescott Law Group, PLC, Prescott
By J. Andrew Jolley
Counsel for Appellees
                      SARAH R. v. JEREMY R., C.R.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.


D O W N I E, Judge:

¶1            Sarah R. (“Mother”) appeals an order terminating her
parental rights. For the reasons that follow, we reverse.

                FACTS AND PROCEDURAL HISTORY

¶2            Mother and Jeremy R. (“Father”) are the parents of C.R.,
who was born in July 2010.1 Father obtained an order of protection
against Mother in November 2010 after she threatened to kill him during
an argument.2 The next month, the family court held a hearing regarding
the order of protection and ordered that Father have temporary sole
custody of C.R., with Mother having supervised access. The court found
no evidence Mother had harmed or threatened C.R. and removed the
child as a protected person from the order of protection.

¶3            Between December 2010 and January 2011, Mother appeared
for every scheduled visit (approximately eight) with C.R. and arrived with
appropriate items. At a February 2011 family court hearing, the court
heard testimony from two individuals who supervised the visits that C.R.
manifested extreme anxiety at Mother’s voice and presence. The family
court ordered that Father have sole custody, with Mother having no
contact, saying: “When any of the Parties can demonstrate that contact
between [C.R.] and [Mother] is therapeutically recommended, contact


1      Father established paternity in separate proceedings in Yavapai
County Superior Court that we refer to as the “family court” proceedings
in order to distinguish between them and the severance proceedings at
issue in this appeal.

2      Mother pled guilty to disorderly conduct/domestic violence as a
result of that incident and was placed on probation, which she
successfully completed.




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                      SARAH R. v. JEREMY R., C.R.
                         Decision of the Court

shall resume in accordance with the therapeutic recommendations.”3 The
court recommended that Mother, “in an effort to develop and encourage a
meaningful and positive parental relationship,” maintain participation in
healthcare and counseling services, take actions to “ensure long-term
mental health stability,” and participate in parenting classes. At a
subsequent hearing in December 2012, the family court stated that
Mother’s therapist should provide C.R.’s therapist, Ms. Phillips, with
information “to assist in the reintroduction.”

¶4            In July 2014, Father filed a petition to terminate Mother’s
parental rights on the grounds of abandonment and neglect under
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(1) and (2). The
juvenile court held a two-day severance hearing in February and April of
2015.

¶5            Hearing evidence established that C.R. lived with Father and
his parents (“Grandfather” and “Grandmother”) in what everyone agreed
was a stable environment. Mother had not seen C.R. since January 2011,
when the child was six months old. Nor had Mother placed Ms. Phillips
in contact with a satisfactory therapist, despite submitting multiple names
and authorization forms. The juvenile court received evidence that C.R.
had ongoing speech, physical, and occupational therapy issues. The child
also had “issues with lots of different people,” would sometimes react
violently during therapy sessions at home, and had several strong “melt
downs” when meeting strangers — especially men.




3      Evidence from the 2015 severance hearing called into question
whether Mother was the cause of C.R.’s behaviors. One of the visitation
observers posited in her 2011 family court testimony that C.R. was
displaying “a trauma-based response” to Mother. The other observer
expressed concern about C.R.’s reaction to Mother and opined that visits
“trigger emotional memories.” At the 2015 hearing, however, the first
observer testified that the majority of Mother’s visits were positive and
that C.R.’s fussiness could have been related to nap times. More
importantly, she conceded she would not have offered the same opinion if
she knew C.R. would continue having such extreme reactions after not
seeing Mother for an extended period of time. No witness, including
C.R.’s therapist, could state with any degree of certainty that C.R.’s
behaviors were attributable to Mother.




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                       SARAH R. v. JEREMY R., C.R.
                          Decision of the Court

¶6           The court terminated Mother’s parental rights on the ground
of abandonment, see A.R.S. § 8-533(B)(1), and did not address the
additional grounds for severance Father had alleged.4 Mother timely
appealed. We have jurisdiction pursuant to Arizona Rule of Procedure for
the Juvenile Court 103(A) and A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1).

                               DISCUSSION

I.     Grounds for Termination

¶7              To terminate parental rights, the court must find at least one
statutory ground by clear and convincing evidence. A.R.S. § 8-537(B); Kent
K. v. Bobby M., 210 Ariz. 279, 281–82, ¶ 7 (2005). It must also find by a
preponderance of the evidence that termination is in the child’s best
interests. See A.R.S. § 8-533(B); Calvin B. v. Brittany B., 232 Ariz. 292, 296,
¶ 18 (App. 2013). We review a termination order for an abuse of
discretion and will affirm if it is supported by sufficient evidence. Kenneth
B. v. Tina B., 226 Ariz. 33, 36, ¶ 12 (App. 2010). We view the evidence in
the light most favorable to sustaining the superior court’s ruling. Michael
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20 (2000).

II.    Abandonment

¶8            A.R.S. § 8-531(1) defines “abandonment” as follows:

       “Abandonment” means the failure of a parent to provide
       reasonable support and to maintain regular contact with the
       child,    including    providing      normal     supervision.
       Abandonment includes a judicial finding that a parent has
       made only minimal efforts to support and communicate
       with the child. Failure to maintain a normal parental
       relationship with the child without just cause for a period of
       six months constitutes prima facie evidence of
       abandonment.



4     In the same line of the ruling, the court stated it was terminating
Mother’s parental rights based on A.R.S. § 8-533(B)(2) (neglect or willful
abuse). However, because the court did not address anything other than
abandonment and specifically stated it was not doing so, we presume it
intended to refer only to A.R.S. § 8-533(B)(1).



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                      SARAH R. v. JEREMY R., C.R.
                         Decision of the Court

In its order terminating Mother’s parental rights, the court stated, in
pertinent part:

      Although given the opportunity to establish a therapeutic
      relationship with the minor child through counseling,
      mother did not do so. Mother also did not take advantage of
      the opportunities to receive information about the minor
      child through the paternal grandparents.

      Had mother taken advantage of the suggestions of the
      family law court, she could have then returned to the family
      law court, shown that court that she had taken advantage of
      their suggestions and requested modification of the court
      orders. Mother did nothing to assert her legal rights.
      ...
      The Court FINDS that Mother has made minimal efforts to
      communicate with the child and that she has not had any
      contact with the child for more than six months.
¶9             Courts consider a parent’s conduct, not subjective intent, in
determining whether he or she “provided reasonable support, maintained
regular contact, made more than minimal efforts to support and
communicate with the child, and maintained a normal parental
relationship.” Michael J., 196 Ariz. at 249–50, ¶ 18. Where circumstances
prevent a parent from exercising traditional bonding methods, she “must
act persistently to establish the relationship however possible and must
vigorously assert [her] legal rights to the extent necessary.” Id. at ¶ 22.
This is because a parent generally carries the burden of asserting her legal
rights at every opportunity. Id. at 251, ¶ 25. However, “[a] parent may
not restrict the other parent from interacting with their child and then
petition to terminate the latter’s rights for abandonment.” Calvin B., 232
Ariz. at 297, ¶ 21. When so restricted, a parent is not necessarily expected
to exhibit the same level of traditional parental conduct or to take every
possible legal measure to reduce barriers to parenting. See, e.g., id. at
¶¶ 25–26 (reversing abandonment finding where, although father was not
“a salutary parent” who diligently pursued his rights and fulfilled “his
corresponding parental responsibilities,” mother had erected barriers to
his parenting).

¶10           Mother clearly did not maintain a normal parental
relationship with C.R. for more than six months. But whether she failed to
do so without just cause is far less clear. See A.R.S. § 8-531(1) (failure to
maintain relationship must be without just cause to constitute prima facie


                                     5
                      SARAH R. v. JEREMY R., C.R.
                         Decision of the Court

evidence of abandonment). Mother’s contact with her daughter was cut
off by a court order that essentially delegated authority to C.R.’s therapist
to determine its duration. Severance hearing evidence established that
Mother had little ability to affect visitation because Ms. Phillips testified
that regardless of any action or progress by Mother, C.R. had not
progressed to a point where she would recommend reintroduction to
Mother. Thus, nothing demonstrated that Mother’s failure to provide the
correct therapist’s information to Ms. Phillips had any effect on her ability
to see or maintain contact with C.R.

¶11           Moreover, there was substantial evidence that Mother did
take actions within her control to address her own issues that might
otherwise prevent contact once Ms. Phillips deemed C.R. ready for
reintroduction. She took multiple parenting classes, remained enrolled in
healthcare and counseling services, and completed a domestic violence
program. Mother contacted Ms. Phillips on numerous occasions to
inquire about C.R. and attempted to provide authorization forms and
therapist information. Mother also emailed Grandfather to inquire about
C.R. and her welfare.5


5     In one email to Grandfather, Mother wrote:

      I am writing you in concern of my daughter [C.R.]. I would
      like to know how she has been doing and what has been
      going on in her life. I know that she has had some
      appointments recently and I want to know how everything
      has been going with all of them. My oldest daughter [K.]
      and I do love her and miss her so much with all my heart
      and would really like to be in and part of her life, also for her
      to know who her mother and older sister [K.] are. . . . I
      would also like to know what [C.R.] does everyday and
      what she likes and doesn’t like. Does she have any favorite
      things that she really enjoys or likes to do? How is she
      doing with her talking, has she learned any new words or
      sentences? How has she been doing with her eating and
      feeding herself? Is there a favorite thing that she likes to eat
      or any foods that she really doesn’t like? I know that she is
      getting bigger and growing so fast, how much does she
      weigh and how tall is she now? I really do love [C.R.] and
      miss her so much and think about her all day everyday.
      Could you please give her lots of hugs and kisses and let her



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                       SARAH R. v. JEREMY R., C.R.
                          Decision of the Court

¶12            Mother admitted she could have been more assertive in
attempting to reintegrate into C.R.’s life. She gave up on sending clothing
and gifts because she felt the items never reached C.R. She stopped
emailing Grandfather for updates after his replies simply directed her to
consult her attorney or court reports. When that avenue proved
unproductive, Mother turned to Ms. Phillips for updates about C.R. She
also sought alternative ways to bond with C.R. that would still comply
with the family court’s orders. For instance, Mother suggested one-way
visitation, such that she could see her daughter without C.R. knowing she
was present. She also pursued visits for C.R.’s half-sister, prepared a
photo album for C.R., and suggested showing the child pictures as a
means of reacquainting her with Mother and maternal relatives. And
Mother testified that throughout the proceedings, she continuously tried
to resolve the matter with Father.

¶13           Given the significant limitations imposed on Mother, and
the high standard of proof required to terminate her rights, the evidence
was insufficient to establish that Mother failed to maintain a normal
parental relationship with C.R. without just cause.6



       know that [K.] and I do love her and care about her and miss
       her so so much. Also could you please send me some
       pictures of her having fun doing what she does and likes
       everyday? I hope that everything goes well at her doctors
       appointment on Friday[.] I wish that I could be there for her.
       Hope that you have a very blessed and wonderful day!
       Thank you for your time and I look forward to hearing back
       from you soon on how my beautiful little girl is doing.

According to Father’s termination petition, as of July 2014, Mother had
emailed Grandfather “on approximately seven occasions” to inquire about
C.R.

6      Though not strictly necessary to our holding, we have other
concerns about the abandonment finding, including the juvenile court’s
refusal to permit Mother to make a record after it excluded testimony
about Father’s attempts to limit Mother’s email communications. The
court also refused to allow evidence that Mother had paid “thousands of
dollars” for legal services relating to C.R. Additionally, after Father called
Mother as an adverse witness at the outset of the severance hearing, the
court warned Mother’s attorney: “if you . . . don’t ask all of the questions



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                       SARAH R. v. JEREMY R., C.R.
                          Decision of the Court

III.   Best Interests Finding

¶14            Even if we were to affirm the abandonment finding, we
would nevertheless reverse the severance order because there was
inadequate proof that termination of Mother’s parental rights was in
C.R.’s best interests. See Kent K., 210 Ariz. at 284, ¶ 22 (party seeking
termination must prove best interests by a preponderance of the
evidence). It is true that “in most cases, the presence of a statutory ground
will have a negative effect.” Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233
Ariz. 345, 350, ¶ 23 (App. 2013). However, a court cannot “assume that a
child will benefit from a termination simply because he has been
abandoned.” Demetrius L. v. Joshlynn F., ___ Ariz. ___ (2016). The
petitioning party must instead prove that the child will derive an
affirmative benefit from termination or incur a detriment without it. Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004).

¶15            In its best interests finding, the superior court stated that
C.R. “has several medical and emotional issues and mother has made little
to no effort to establish communication, continue a relationship or support
the child.” But we cannot discern from the record what “affirmative
benefit” C.R. will receive from terminating Mother’s rights or what
detriment she will incur without such an order. Mother poses no risk to
the child, as family court orders currently prohibit her from seeing C.R.
Mother testified she is willing to wait until interaction would be beneficial
to C.R., and she accepts that her current role is limited. Mother also
believes C.R. is in a stable home and has no intention of disrupting it.

that you want to ask now, you may not be allowed to ask them later.”
This required Mother to anticipate and defend against facts and
allegations not yet presented and left counsel in a quandary over whether
to cover certain issues that might or might not arise in Father’s case-in-
chief. When Mother’s counsel politely objected and advised that going
into matters such as mental health was stressful for Mother if unnecessary,
the court responded, “Honestly I don’t give a crap about either one of
these people.” The court went on to state that its only concern was C.R.’s
best interests. The child’s best interests are obviously important, and even
paramount in the second step of the severance analysis. But when a court
acts to terminate a parent’s fundamental constitutional right to “the
companionship, care, custody, and management of his or her children,”
Stanley v. Illinois, 405 U.S. 645, 651 (1972), it must necessarily be concerned
with the parent’s rights as well.




                                      8
                       SARAH R. v. JEREMY R., C.R.
                          Decision of the Court

There are no adoption plans. Cf. Oscar O., 209 Ariz. at 334, ¶ 6 (current
adoptive plan is a well-recognized benefit).

¶16           Father’s suggestion that severing Mother’s rights would
allow him to “share joint-legal decision making with the paternal
grandmother” has no discernible legal basis.7 Cf. A.R.S. § 25-409(A)
(delineating third party rights to legal decision-making authority and
requiring, inter alia, proof that it would be significantly detrimental to the
child to remain or be placed in the care of either legal parent). Father also
suggests that terminating Mother’s parental rights will alleviate “stress
and anxiety.” He does not explain how severance will achieve this goal or
whose “stress and anxiety” will be reduced. Father also argues,
“Continuation of the parent-child relationship would be a detriment to
[C.R.] because [Mother] has failed to establish and maintain a parental
relationship with the child, [and] has consciously disregarded the
obligations owed by a parent to a child[.]” But this merely restates the
grounds for abandonment.

¶17           Mother, on the other hand, testified that C.R.’s half-sister
and maternal grandmother desire a relationship with C.R. Father testified
such relationships are unimportant, and he objects to visits. The court did
not find that C.R.’s best interests would be advanced by not knowing or
interacting with her maternal relatives. And C.R.’s therapist testified C.R.
would suffer no harm from having a relationship with her older sister.
Additionally, Mother receives disability benefits, and she testified that, as
her daughter, C.R. may be entitled to Social Security benefits in the future.

¶18           Severance of Mother’s parental rights will render C.R. an
orphan on the maternal side, with no corresponding benefit apparent
from the record. Cf. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 8
(1990) (despite abandonment finding, “[w]e cannot hold that there is
sufficient evidence to terminate when the record is entirely devoid of any
explanation of what [the child] will gain or lose”). Based on the record
before us, we conclude the juvenile court’s finding that terminating
Mother’s parental rights would be in C.R.’s best interests is not supported
by substantial evidence.




7       When asked at the severance hearing why terminating Mother’s
rights was in C.R.’s best interests, Father stated that he liked “to coparent
with my mom” and that he wanted “to have joint custody with my mom.”



                                      9
                     SARAH R. v. JEREMY R., C.R.
                        Decision of the Court

                            CONCLUSION

¶19          For the foregoing reasons, we reverse the order terminating
Mother’s parental rights.




                                 :ama




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