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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             JEREMY V., Appellant,

                                         v.

                          JUDITH H., K.V., Appellees.

                              No. 1 CA-JV 14-0274
                                FILED 6-18-2015


            Appeal from the Superior Court in Maricopa County
                              No. JS506983
                The Honorable Janice K. Crawford, Judge

                                   VACATED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Ellsworth Family Law, P.C., Mesa
By Glenn D. Halterman
Counsel for Appellees
                      JEREMY V. v. JUDITH H., K.V.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Jeremy V. (Father) appeals from the juvenile court’s order
severing his parental rights to K.V. (Child) following a private severance
petition filed by Judith H. (Mother).1 For the following reasons, we vacate
the severance order.

                FACTS2 AND PROCEDURAL HISTORY

¶2            Father and Mother are the biological parents of Child, born in
2005. Father and Mother divorced in January 2009, and Mother was
granted sole legal decision-making authority and primary physical custody
of Child. Father was awarded regular parenting time and ordered to pay
child support. Father paid child support until he was laid off in March 2009
and could no longer make the support payments. That same month, the
family court accepted a stipulation to increase Father’s parenting time and
reduce his child support to zero. Father then went on vacation to the United
Kingdom for two weeks.

¶3            In December 2009, Father returned to the United Kingdom on
a six-month visa to be with his fiancé. During this time, Father maintained
regular telephone contact with Child. Father traveled back to Arizona in
June 2010 to get married. On this trip, he exercised three days of parenting
time with Child. Mother refused his request for additional time, even
though Father would have limited time in the United States and Child was
with Mother full-time otherwise. He then returned to the United Kingdom
where he lived until August 2013, with the exception of a short return to


1      Because this is a private severance action, the Arizona Department
of Child Safety is not a party.

2      We view the facts in the light most favorable to upholding the
juvenile court’s order. Maricopa Cnty. Juv. Action No. JD-5312, 178 Ariz. 372,
376 (App. 1994).



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                      JEREMY V. v. JUDITH H., K.V.
                          Decision of the Court

the United States in 2012. Throughout that time, he spoke with Child on
the phone each week, and in April 2012, the family court amended the
parenting time order to reflect the parties’ agreement that Father would be
allowed telephonic contact with Child three days per week. Father
continued to telephone Child approximately three times per week. He also
sent Child flowers for Valentine’s Day and gifts for Easter and her birthday.

¶4            In July 2010, the family court ordered Father to pay child
support, rejecting his argument that he was unable to pay because he
remained unemployed and had not yet been successful in obtaining
disability benefits. He made his first payment towards child support in
September 2012, tendering $1,000 to quash an arrest warrant that resulted
from his failure to pay the obligation. He did not make any other child
support payments until 2014 when he began receiving social security
disability benefits, a portion of which were garnished to pay his arrearages.

¶5             In the interim, Mother petitioned for termination of Father’s
parental rights, once in September 2011 and again in May 2012; both
petitions were denied. However, in December 2012, the juvenile court
modified the parenting time order to include a recommendation that any
visitation or contact between Father and Child be done in accordance with
the recommendations of a therapist. The family court dismissed Father’s
subsequent petition for a modification of parenting time and Mother’s
request for appointment of a reunification therapist and ordered Father to
re-petition the court when he was a permanent U.S. resident.

¶6           In August 2013, Father returned to the United States. He did
not immediately re-petition for a modification of parenting time, and in
February 2014, Mother filed a third petition to terminate Father’s parental
rights on the ground of abandonment. Mother’s petition noted she had
married Jason H. (Stepfather) in June 2012, and he had been actively
involved in raising Child since the parties’ dissolution. Child calls
Stepfather “dad,” and Stepfather is willing to adopt her.

¶7            After an evidentiary hearing in September 2014, the juvenile
court concluded Father had abandoned Child by failing to provide
reasonable support to and maintain regular contact with Child and that
severance was in Child’s best interests. Father timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 8-




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                       JEREMY V. v. JUDITH H., K.V.
                           Decision of the Court

235(A),3 12-120.21(A)(1), and -2101(A)(1), and Arizona Rule of Procedure
for the Juvenile Court 103(A).

                               DISCUSSION

¶8             A party seeking termination of parental rights must
(1) establish that severance is in the child’s best interests by a
preponderance of the evidence, and (2) prove a statutory ground for
severance by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005). Father argues the juvenile court erred in finding
Mother proved either prong. We review a juvenile court’s severance order
for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 47, ¶ 8 (App. 2004) (quoting Maricopa Cnty. Juv. Action No. JV-132905,
186 Ariz. 607, 609 (App. 1996)). The juvenile court abuses its discretion
when its decision is “manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.” Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, 82-83, ¶ 19 (App. 2005) (quoting Quigley v. Tucson City Court,
132 Ariz. 35, 37 (1982)).

¶9             In determining whether severance is in a child’s best interests,
the court balances the rights of the “unfit” parent against those of the child.
Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21 (App. 2014). To justify severance,
the petitioner must prove the child would be harmed from continuation of
the relationship or would benefit from the severance. Mary Lou C., 207 Ariz.
at 50, ¶ 19; see also Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5-6
(1990) (“Although a finding of detriment to the child is not necessary, some
benefit must be gained by the child from a termination.”). We accept the
juvenile court’s findings regarding best interests factors unless they are
clearly erroneous — that is, unsupported by reasonable evidence within the
record. Mary Lou C., 207 Ariz. at 47, ¶ 8 (quoting JV-132905, 186 Ariz. at
609). However, we are not bound by the juvenile court’s conclusions of law.
H.M.L. v. State, 131 Ariz. 385, 388 (App. 1981) (citing Tencza v. Aetna Cas. &
Sur. Co., 111 Ariz. 226, 228 (1974), and State Tax Comm’n v. Howard P. Foley
Co., 13 Ariz. App. 85, 87 (1970)).

¶10           Here, the juvenile court did not identify any harm to Child in
maintaining a parental relationship with Father; instead, it found Child had
an established relationship with Stepfather, Stepfather was willing and able
to adopt Child, and Child wished to be adopted by him. In contrast, the
court found Child “does not want a relationship with Father,” and that this


3     Absent material revisions from the relevant date, we cite a statute’s
current version.


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                       JEREMY V. v. JUDITH H., K.V.
                           Decision of the Court

circumstance was “more likely” a result of Father’s lack of participation in
her life than of Mother’s disclosure to Child of Father’s affair that ended
their marriage. Based upon these findings, the court concluded Child
would benefit from the severance because it would free her to be adopted
by Stepfather and “ensure that the Child is able to remain with [Stepfather]
and the Child’s half-sibling[s] if something should ever happen to mother.”

¶11           Although the juvenile court’s factual findings are supported
by reasonable evidence within the record, these findings are inadequate, as
a matter of law, to establish that severance is in Child’s best interests. This
Court has previously explained that a best interests finding is insufficient if
based only upon the potential that the child would be available for adoption
by the mother’s fiancé. Jose M., 234 Ariz. at 17-18, ¶ 23. In Jose M., we held:

       Because it appears that [child]’s living arrangement already
       offers stability and permanence, Mother’s stated intent to
       marry fiancé . . . and fiancé’s interest in adopting [child] . . .
       do not establish an increase in stability and permanency for
       [child] to the degree necessary to demonstrate a benefit
       warranting severance of Father’s parental rights.

Id.

¶12           Here, as in Jose M., Child has a permanent and stable living
arrangement in Mother’s home. See id. While we have no doubt Child
benefits from Stepfather’s presence in the home and active role in her
upbringing, both Mother and Stepfather testified neither the living
arrangements nor Stepfather’s participation in Child’s life would change if
Father’s parental rights were not terminated. Stepfather even went further
to say that having two male figures in her life would be a benefit to Child.
And, as in Jose M., there is no evidence that Father’s interactions with Child
have been harmful to her, that he has been abusive or violent toward Child,
that he possesses personal characteristics that would render him incapable
of parenting, or that he would be unwilling to participate in therapy to more
meaningfully develop his relationship with Child. See id. at 17, ¶ 22.

¶13           The biological parent has a constitutionally protected interest
in the care, custody, and management of his child, and the child’s best
interests do not turn on the comparative willingness and ability to parent,
as between a father and stepfather. See Maricopa Cnty. Juv. Action Nos. JS-
4118 and JD-529, 134 Ariz. 407, 410 (App. 1982) (“To give such rights [of
custody or control of a minor child] to step[parents] would invade the
rights of the natural parents and would further endanger the welfare of



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                       JEREMY V. v. JUDITH H., K.V.
                           Decision of the Court

children by pitting rights of stepparents against those of the natural
parents.”). In the absence of a finding that detriment or harm to the child
would result if the relationship with the biological father is not severed, the
mere availability of a stepparent to adopt does not, as a matter of law, justify
termination of Father’s rights. See Jose M., 234 Ariz. at 17-18, ¶ 23 (noting
that while a child in foster care derives a benefit from severance because
stability and permanency can thereafter be established, these same benefits
do not apply to a child already in a stable home) (citing Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334-35, 337, ¶¶ 6-8, 16 (App. 2004)).
Something more must be shown to override Father’s constitutional right to
parent.

¶14           Mother argues Jose M. is distinguishable because the potential
adoptive parent in Jose M. was not married to the biological parent and they
had no other children in common. However, the conclusion in Jose M. did
not turn on some perceived instability in the mother’s relationship with the
future stepparent, but rather, the failure of the mother to establish that the
stability and permanence the child was already experiencing in her home
would be enhanced through adoption by her fiancé, especially in the
absence of any harm to the child in maintaining the parental bond between
the child and her biological father. Id. at 17-18, ¶¶ 22-23. The rationale of
Jose M. applies regardless of the fact that Mother and Stepfather are married
and raising Child with two half-siblings.

¶15           Mother also argues she has proven that the stability and
permanency of Child’s situation would be enhanced through adoption by
Stepfather because, if something were to happen to her, Child would be
able to remain with Stepfather and her half-sibling. This preference is
likewise insufficient to justify severance. See JS-500274, 167 Ariz. at 7
(finding a parent’s desire to nominate someone other than the remaining
natural parent to serve as guardian of a child in the event of the parent’s
death “fails to show any present benefit to [the child]”). Moreover, the
decision regarding severance must be based upon those facts presently
before the juvenile court and not upon a hypothetical future tragedy. See
id. (finding mother’s contention that “just in case she gets married in the
future and just in case her future husband wishes to adopt [the child]” was
too speculative to establish severance was in child’s best interests).

¶16           Finally, Mother argues severance would permit Child to
discontinue contact with Father, which Mother asserts Child “does not
enjoy.” Although discontinuing contact with Father could be perceived as
a benefit to Child, we find this objective to be short-sighted and not truly in
Child’s best interests. It would be difficult to identify any child who


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                       JEREMY V. v. JUDITH H., K.V.
                           Decision of the Court

achieves adulthood having escaped unpleasant interactions with at least
one parent. Our opinion in this regard is not swayed by the juvenile court’s
finding that Father is “more likely” than Mother to blame for Child’s dislike
of him. The court made no finding that Child would be harmed by contact
with Father, and it would be cavalier to allow a now ten-year-old child to
dictate the legal rights of a parent in the absence of harm.

¶17            Moreover, despite the feelings Child reportedly has toward
Father now, the record suggests the current situation has resulted, at least
in part, from circumstances largely outside of Father’s control, i.e., Mother’s
unwillingness to support his relationship with Child and both parties’
difficulty in obtaining a professional to assist with therapeutic visitation. It
is likely that the relationship between Father and Child will change and
develop with time. In the absence of any proven material benefit to Child
in severing Father’s parental rights, each must be given that chance. See id.
(vacating a severance order that would “deny[] the child a ‘sincere’ father
for a mere speculative potential benefit that might or might not materialize
sometime in the future.”).

¶18           The findings of the juvenile court are insufficient to support
its conclusion that severance would provide any present and material
benefit to Child. We therefore conclude the juvenile court erred in ruling
Mother proved severance was in Child’s best interests.4

                               CONCLUSION

¶19          For the foregoing reasons, we vacate the order terminating
Father’s parental rights.




                                   :ama

4       Because we find the evidence did not establish severance was in the
best interests of Child, we do not address whether the juvenile court abused
its discretion in concluding Father abandoned Child. See JS-500274, 167
Ariz. at 5 (holding that the best interests of a child could be a “sufficient
reason for a denial of termination”).



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