                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 15-0380
                               FILED 8-16-2016


            Appeal from the Superior Court in Maricopa County
                              No. JS517064
                The Honorable Janice K. Crawford, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Terrea L. Arnwine P.L.L.C., Tempe
By Terrea L. Arnwine
Guardian ad litem for Appellant

Law Office of Ed Johnson P.L.L.C., Peoria
By Edward D. Johnson
Counsel for Appellee Michael M.
                      E.O. v. MICHAEL M., KATIE A.
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Kenton D. Jones joined.


W I N T H R O P, Presiding Judge:

¶1             E.O.’s guardian ad litem appeals the juvenile court’s order
denying the petition filed by Katie A. (“Mother”) to sever the parental rights
of Michael M. (“Father”) to E.O., contending the juvenile court erred in
finding Mother failed to prove severance was in E.O.’s best interests. For
the following reasons, we vacate that order and remand for the juvenile
court to consider and apply the principles recently announced in Demetrius
L. v. Joshlynn F., 239 Ariz. 1, 365 P.3d 353 (2016).

                 FACTS AND PROCEDURAL HISTORY

¶2           E.O. was born in August 2007 to Father and Mother, who
were unmarried and living together at the time. Upon discharge from the
hospital, Mother and E.O. moved in with E.O.’s maternal grandparents.
Mother provided for E.O.; Father, however, inconsistently provided for or
visited E.O.

¶3            Father was first incarcerated from December 2007 to April
2008 for theft-related charges. In June 2008, the family court awarded
Mother sole custody of E.O., and awarded Father supervised parenting
time. Paternal great-grandparents supervised and were present during
Father’s parenting time. Paternal grandmother was also always present;
Father’s participation, however, remained inconsistent.

¶4            In 2010, Father was again incarcerated, this time for burglary,
and was not released until March 2015. While Father was incarcerated the
second time, Mother initially maintained a relationship with him; but in
2012, Mother ended the relationship and, approximately seven months
later, married A.A. (“Stepfather”). Since then, E.O. has been living with
Mother, Stepfather, Stepfather’s daughter from a previous relationship, and
Mother and Stepfather’s daughter.

¶5            In 2013, Mother petitioned to sever Father’s parental rights to
E.O. After a severance trial, the juvenile court denied Mother’s petition to
sever, finding Father had abandoned E.O. but severance was not in E.O.’s


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                      E.O. v. MICHAEL M., KATIE A.
                            Decision of the Court

best interests because she would lose her relationships with her paternal
grandmother and great-grandparents. E.O.’s guardian ad litem timely
appealed from the best-interests finding, and this court reversed and
remanded. E.O. v. Michael M., No. 1 CA-JV 14-0310, 2015 WL 4655933, at
*2, *3, ¶¶ 11, 13 (Ariz. App. Aug. 6, 2015).

¶6            On remand, the juvenile court found no evidence of detriment
to E.O. from a continued parental relationship with Father and that her
present living situation would not be enhanced through her adoption by
Stepfather. The juvenile court relied on Jose M. v. Eleanor J., 234 Ariz. 13,
316 P.3d 602 (App. 2014) and again found severance was not in E.O.’s best
interests.

¶7            E.O.’s guardian ad litem timely appealed this decision. While
on appeal, our supreme court issued Demetrius L. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9;
Arizona Revised Statutes (“A.R.S.”) § 8-235(A); and Rule 103(A) of the
Arizona Rules of Procedure for the Juvenile Court.1

                                 ANALYSIS

¶8            We review the juvenile court’s order on a request to sever a
parent’s rights for an abuse of discretion. Frank R. v. Mother Goose Adoptions,
239 Ariz. 184, 190, ¶ 21, 367 P.3d 88, 94 (App. 2016). Parents’ 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). A court may 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 interests of the
children. 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.

¶9             E.O.’s best interests are the only issue raised on appeal. The
guardian ad litem argues the juvenile court erred in applying Jose M. to the
facts of the present case, and that Mother’s petition should be granted under
the analysis approved in Demetrius L.

¶10          In Demetrius L., also a private severance case, mother and
father were unmarried when they had a child. 239 Ariz. at 2, ¶ 3, 365 P.3d
at 354. Mother later married stepfather. Id. at ¶ 5. At the time mother filed
her severance petition, the child was in a stable living situation with

1     Absent material changes after the relevant date, we cite a statute’s
current version.


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                      E.O. v. MICHAEL M., KATIE A.
                            Decision of the Court

mother, stepfather, and mother’s four other children. Id. at ¶ 5. In contrast,
the child was terrified by father and father’s family. Id. The juvenile court
found father had abandoned the child and granted mother’s petition to
sever father’s parental rights. Id. at 3, ¶ 6, 365 P.3d at 355. A panel of this
court reversed. Id. at ¶ 7. That panel relied on the reasoning of Jose M. that,
unlike an adoption’s obvious benefit of ending the need for foster care in a
state-initiated severance, adoption by stepfather would not increase
stability for the child; accordingly, severance would not provide an
affirmative benefit to the child, and was not warranted. Id.

¶11             On review, our supreme court rejected the approach in Jose M.
of “(1) []distinguishing the significance of adoption in private versus state-
initiated severance cases, and (2) []assessing the benefits of adoption solely
in terms of whether the child’s ‘day-to-day’ living arrangement will
change” in a private severance action. Id. at 5, ¶ 18, 365 P.3d at 357
(emphasis added). Regardless of the identity of the petitioner, and
depending on the circumstances, adoption can provide a benefit supporting
a best-interests finding. Id. at 4–5, ¶¶ 16–17, 365 P.3d at 356–57. Further, in
most cases, the existence of a proven statutory ground for severance will
likely have had a negative effect on the child. Id. at 4, ¶ 15, 365 P.3d at 356.
The supreme court, however, indicated the juvenile court should not
automatically conclude severance will be in the child’s best interests just
because the child is adoptable or assume the child will benefit from
severance simply because abandonment was found. Id. at ¶ 14. The
standard for finding best interests remains the same: whether the petitioner
has proven by a preponderance of the evidence that severance is in the
child’s best interests by demonstrating either the existence of a benefit from
severance or a detriment to the child from a continued parental
relationship. Id. at 4–5, ¶ 16, 365 P.3d at 356–57; Kent K., 210 Ariz. at 288,
¶ 41, 110 P.3d at 1022.2

¶12          Here, the juvenile court found no evident detriment to E.O. if
Father’s parental rights were not severed, and that E.O. would undoubtedly
continue to benefit from having a permanent, safe, and loving home with
Mother and Stepfather. It further found the situation would not change if

2      In Demetrius L., the supreme court also noted several potential
benefits from adoption—including providing permanency and stability to
an already-existing de facto parent-child relationship, formalizing legal and
financial responsibility, and solidifying the adopting parent’s right to
exercise custody and control in the future—all of which may “advance the
child’s wellbeing.” Demetrius L., 239 Ariz. at 4–6, ¶¶ 16–17, 20–21, 365 P.3d
at 356–58.


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                      E.O. v. MICHAEL M., KATIE A.
                            Decision of the Court

Father’s parental rights were not severed or that her living situation would
not otherwise be enhanced by Stepfather’s adoption. Under Demetrius L.,
however, this is an incomplete analysis. Because the juvenile court did not
have the benefit of Demetrius L. in reaching its decision, we vacate its order
and remand to allow that court to consider the best-interests analysis in
light of the principles announced and factors approved in Demetrius L.

                              CONCLUSION

¶13          We vacate the juvenile court’s order denying Mother’s
petition to sever Father’s parental rights and remand for further
proceedings consistent with this decision.




                          Amy M. Wood • Clerk of the court
                           FILED: AA




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