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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                 DEMETRIUS L.,
                                   Appellant,

                                         v.

                              JOSHLYNN F., D.L.,
                                  Appellees.

                              No. 1 CA-JV 15-0034
                               FILED 7-30-2015


            Appeal from the Superior Court in Mohave County
                         No. B8015SV201404004
                  The Honorable Richard Weiss, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Mohave County Legal Defender’s Office, Kingman
By Eric Devany
Counsel for Appellant

Harris & Winger, Flagstaff
By Chad Joshua Winger
Counsel for Appellee Joshlynn F.
                   DEMETRIUS L. v. JOSHLYNN F., D.L.
                        Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1             Demetrius L. (Father) appeals the termination of his parental
rights to D.L. (Child). In light of this court’s opinion in Jose M. v. Eleanor J.,
234 Ariz. 13 (App. 2014), we conclude this record does not establish by a
preponderance of evidence that terminating Father’s parental rights is in
Child’s best interests. Accordingly, we reverse the termination order and
remand to the juvenile court for further proceedings.

              FACTS AND PROCEDURAL BACKGROUND

¶2             Father is the biological father of Child and lived with Joshlynn
F., Child’s biological mother (Mother), when Child was born in 2006. Father
and Mother’s relationship ended in 2009. Although Father moved to
California, Father and Mother agreed on an informal visitation schedule
that governed Father’s contact with Child. Father’s visitation ceased in
2010.

¶3             Mother petitioned to terminate Father’s parental rights in
2014, citing abandonment under Arizona Revised Statutes (A.R.S.) section
8-533.B.1. as grounds for termination. At the termination hearing, Mother
testified that she stopped taking Child to California for visitation because
Father began threatening her. Mother testified that between 2010 and 2012,
Father’s only contact with Child was a Christmas gift Father gave Child
through Father’s brother. Mother also stated that Father had no contact
with Child between 2012 and 2014. Mother acknowledged, however, that
Child saw Father during a November 2013 incident at which an altercation
occurred between Mother and members of Father’s family.

¶4            Father testified that Mother stopped allowing him to visit
Child in 2010 and blocked him from any further contact thereafter. Father
claimed he could not get in touch with Mother because Mother would not
answer his phone calls and “blocked” his phone number and social media
accounts. Father stated that he attempted to get in touch with Mother by
visiting her workplace and contacting various members of her family on



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                   DEMETRIUS L. v. JOSHLYNN F., D.L.
                        Decision of the Court

social media. Father testified that, in 2010, he sought court-ordered
visitation in a California court but was told he had to file in Arizona. Father
stated he filed an Arizona petition in 2011 but never had it served on
Mother. Father filed another petition in early 2014 after the November 2013
altercation between Mother and members of his family. Father tried
unsuccessfully to serve Mother with that petition around the time Mother
filed her termination petition.

¶5            The juvenile court terminated Father’s parental rights. Father
timely appealed and we have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution, A.R.S §§ 8-235.A, 12-120.21.A.1., and -2101.A.1.
(West 2015),1 and Arizona Rule of Procedure for the Juvenile Court 103(A).

                                DISCUSSION

¶6            Father challenges both the juvenile court’s finding of
abandonment by clear and convincing evidence and the finding that
termination would be in Child’s best interests. Terminating parental rights
requires a juvenile court to: (1) find one of the grounds for termination in
A.R.S. § 8-533.B. established by clear and convincing evidence; and (2)
determine a preponderance of evidence establishes that termination is in
the child’s best interests. Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437,
440, ¶ 13 (App. 2014). Because we reverse the termination order based on
the juvenile court’s best interests finding, we analyze only that portion of
the juvenile court’s decision.

¶7             Our supreme court has noted that terminating parental rights
“necessarily involves the consideration of fundamental, often competing,
interests of parent and child.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶ 11 (2000). When making a best interests determination, a
juvenile court must balance the “unfit” parent’s rights against the child’s.
Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37 (2005). Accordingly, a best
interests finding in support of terminating parental rights requires proof
that a child would either benefit from termination or be harmed by the
relationship continuing. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz.
1, 5 (1990).

¶8           In this case, the juvenile court found that termination of
Father’s parental rights was in Child’s best interests because Child was
adoptable and “[a]s such, the stability and permanence [Child] may achieve


1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                  DEMETRIUS L. v. JOSHLYNN F., D.L.
                       Decision of the Court

in the home of his mother and her husband would be in [Child’s] best
interest[s].” This conclusion was based presumably on the testimony of
Mother and Mother’s husband, who both stated that Child enjoyed a good
relationship with Mother’s husband. Mother’s husband also testified that
he wanted to adopt Child.

¶9             This court has previously recognized that a child’s
adoptability or the presence of an adoptive plan may be evidence that
terminating parental rights would benefit a child. See Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004). This court has noted,
however, that these holdings occurred in the context of termination
proceedings initiated by the State, where the child involved was in foster
care. Jose M., 234 Ariz. at 17-18, ¶ 23.

¶10            The distinction in Jose M. between the effect of adoption-
related evidence in State-initiated and private termination proceedings is
instructive here because the Jose M. court considered a termination petition
much like the one in this case. As in Jose M., Mother’s termination petition
cited abandonment as the statutory grounds for termination, and the
juvenile court’s best interests analysis relied on evidence of adoptability
and a potential adoptive plan. The Jose M. court noted that such evidence
would be insufficient to conclude terminating parental rights was in a
child’s best interests because the record lacked any evidence that the parent
whose rights were terminated was harming child, incapable of parenting,
or that adoption actually would provide further stability for the child. Id.
at 17-18, ¶¶ 20-23. We conclude the same analysis applies to this case.

¶11           Although Mother testified that Father began threatening her,
she offered no evidence showing abusive or violent behavior towards her
or Child. There is no evidence Father has characteristics or habits that make
him unable to parent Child, and there is likewise no evidence of legal issues,
civil or criminal, that negatively implicates Father’s ability to maintain a
safe and meaningful parent-child relationship. Father has demonstrated a
desire to have a relationship with Child, and Child’s current living
arrangement will be altered only if Father can show a family court that he
can effectively care for Child during parenting time. But whether Father’s
parental rights are terminated will have no effect on the stability and
permanency of Child’s current situation. Unlike situations in which
adoption obviously benefits a child by ending the need for foster care, the
adoptive plan in this case does not establish an increase in stability and
permanency that necessitates terminating Father’s parental rights. As a
result, we conclude this record does not establish a preponderance of



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                 DEMETRIUS L. v. JOSHLYNN F., D.L.
                      Decision of the Court

evidence that terminating Father’s parental rights is in Child’s best
interests.

                            CONCLUSION

¶12          Because the record does not establish a preponderance of
evidence that termination of Father’s parental rights is in Child’s best
interests, we reverse the termination order and remand for further
proceedings.




                                :ama




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