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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             SUMMER P., Appellant,

                                         v.

                 SHIRLEY M., THOMAS M., K.H., Appellees.

                              No. 1 CA-JV 15-0421
                                FILED 6-9-2016


            Appeal from the Superior Court in Maricopa County
                              No. JS517279
                   The Honorable James P. Beene, Judge

                                   AFFIRMED


                                    COUNSEL

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

Law Offices of Margo Shorr, Phoenix
By Margo A. Shorr
Counsel for Appellees Shirley M. and Thomas M.
                    SUMMER P. v. SHIRLEY M., et al.
                        Decision of the Court



                      MEMORANDUM DECISION

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


T H O M P S O N, Judge:

¶1           Summer P. (Summer) appeals from the juvenile court’s order
severing her parental rights to her daughter, K.H. For the following
reasons, we affirm the decision of the juvenile court.

               FACTUAL AND PROCEDURAL HISTORY

¶2            K.H. was born in September 2000 in Tucson. Summer was
not married at the time of K.H.’s birth and no father was listed on her birth
certificate. Appellees Thomas M. and Shirley M. (Thomas and Shirley) are
Summer’s maternal grandparents and K.H.’s maternal great-grandparents.
K.H. went to live with Thomas and Shirley at their home in Tucson when
she was three months old; she lived with them until about the age of four
years. After K.H. turned four, Summer and her then-boyfriend picked up
K.H. and took her to live with them in their apartment in Tucson. K.H.
lived with Summer and the boyfriend for several months, but in January
2005 Summer gave K.H. back to Thomas and Shirley. K.H. lived with
Thomas and Shirley for about a year and a half, from January 2005 until
May 2006. In May 2006, Summer again picked up K.H. and kept her until
January 2007. In January 2007, Summer returned K.H. to Thomas and
Shirley and she has lived with them continuously thereafter. Summer
provided no financial support for K.H. during the entire time period from
January 2007 to the time of the severance trial in August 2015.

¶3            In 2009, Summer signed a consent to guardianship form and
Thomas and Shirley established guardianship of K.H. In 2012 Thomas,
Shirley and K.H. moved to Phoenix and the guardianship was transferred
to Maricopa County.




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                      SUMMER P. v. SHIRLEY M., et al.
                          Decision of the Court

¶4            In February 2015 Thomas and Shirley filed a private
severance petition seeking to terminate Summer’s parental rights to K.H.1
Subsequently, Summer filed a petition to terminate the guardianship. The
juvenile court held a severance trial over the course of three days in 2015.
K.H., who turned fifteen just prior to the last day of trial, requested the
juvenile court to sever Summer’s parental rights so that she could be
adopted by Thomas and Shirley.

                                 DISCUSSION

¶5             “We will not disturb the juvenile court’s order severing
parental rights unless its factual findings are clearly erroneous, that is,
unless there is no reasonable evidence to support them.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998)
(citations omitted). We view the facts in the light most favorable to
sustaining the juvenile court’s ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the
evidence, because “[t]he juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002) (citation omitted). The juvenile court may terminate a parent-
child relationship if the petitioner proves by clear and convincing evidence
at least one of the statutory grounds set forth in Arizona Revised Statutes
(A.R.S.) § 8-533(B) (2014). Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a
preponderance of the evidence that severance is in the child’s best interests.
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).

    A. Abandonment

¶6           Abandonment is a ground for severance pursuant to A.R.S. §
8-533 (B)(1). “Abandonment” is defined in A.R.S. § 8-531 (1), which
provides:



1 Thomas and Shirley also sought to terminate the parental rights of K.H.’s
putative father, John Doe. Subsequently, T.T. was identified as a potential
father and the severance petition was amended. John Doe and T.T. were
served by publication and the juvenile court severed John Doe and T.T.’s
parental rights on the ground of abandonment. No alleged father is a party
to this appeal.



                                        3
                     SUMMER P. v. SHIRLEY M., et al.
                         Decision of the Court

              “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.

Summer argues that she did not abandon K.H. because Thomas and Shirley
“interfered” and did not permit her to have a relationship with her child.
Sufficient evidence supported the juvenile court’s finding that Summer
abandoned K.H., however. K.H. continuously resided with Thomas and
Shirley from 2007 until the time of trial. During that entire time, Summer
provided no financial support for K.H. She provided K.H. with no gifts
from 2010 to 2014. Summer testified that she gave K.H. a scrapbook at a
court hearing in 2014 and gave her a kite sometime in 2014. The last time
she sent her a card was in 2008. K.H., an accomplished gymnast, had
numerous gymnastics competitions which were open to the public;
Summer attended just one competition from 2012 to the time of trial.
Summer maintained phone contact with Shirley (not K.H.) but from 2012 to
the time of trial did not request visitation with K.H. The record is clear that
Summer made only minimal efforts to communicate with K.H. and made
no effort at all to support her or provide normal supervision for the vast
majority of K.H.’s life.

¶7           The record also supports the juvenile court’s finding that
Thomas and Shirley did not attempt to restrict Summer’s access to K.H.
Summer testified that Thomas and Shirley would not allow K.H. to speak
with her on the phone, and speculated that if she tried to visit K.H. “I’m
sure they’d call the police on me.” Thomas, however, testified that after
2009 Summer never requested to have visitation with K.H. and that he and
Shirley never refused to allow K.H. to have contact with Summer. The
evidence thus does not support Summer’s argument the abandonment
finding cannot be sustained because Thomas and Shirley had “unclean
hands.”




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                     SUMMER P. v. SHIRLEY M., et al.
                         Decision of the Court



   B. Best Interests

¶8             Summer argues that insufficient evidence supported the
juvenile court’s finding that severance was in K.H.’s best interest. We
disagree. To establish that severance is in a child’s best interests, the court
must find either that the child will benefit from the severance or that the
child would be harmed by the continuation of the relationship. James S. v.
Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App.
1998). Evidence of an adoptive plan is evidence of a benefit to the child. Id.
Here, the evidence was showed that K.H. had been living continuously
with Thomas and Shirley for over eight years in a healthy, stable, loving
home environment. Moreover, she had lived with them for most of her life
and considered them her parents. They wanted to adopt her and she
wished to be adopted by them. Accordingly, we find no error in the
juvenile court’s finding that severance was in K.H.’s best interests.

   C. The Trial Court Did Not Abuse its Discretion By Failing to
      Appoint New Counsel for Summer and Denying Her
      Request to Continue the Severance Trial

¶9             On the first day of the severance trial, Summer made oral
motions to the juvenile court requesting the court to appoint new counsel
for her and requesting a continuance. When the court asked Summer why
she wanted new counsel, she told the court that she did not think she and
her attorney, Ms. Davis, were “seeing eye to eye,” and that there was
“conflict and friction” in her relationship with her attorney. Ms. Davis
avowed to the court that she had not realized Summer was unhappy with
her representation until two days before the start of trial. K.H., Thomas,
and Shirley objected to the continuance. The trial court denied the request
for new counsel and a continuance, finding that Summer had failed to
establish that there had been an irreconcilable conflict between herself and
her attorney. The court noted that in reaching its decision, it had considered
Summer’s rights and interests as well as the necessities of judicial economy.
Citing Daniel Y. v. ADES, 206 Ariz. 257, 77 P.3d 55 (App. 2003), the court
then informed Summer that she had a right to represent herself and advised
her of the dangers of self-representation. After a short discussion with Ms.
Davis, Summer decided to proceed with Ms. Davis’s representation.

¶10           We review the trial court’s decision to deny Summer’s request
for new counsel for an abuse of discretion. See State v. Torres, 208 Ariz. 340,
343, ¶8, 93 P.3d 1056, 1059 (2004). We likewise review the grant or denial



                                      5
                     SUMMER P. v. SHIRLEY M., et al.
                         Decision of the Court

of a continuance for an abuse of discretion. In re Maricopa County Sup. Ct.
No. MH2003-000240, 206 Ariz. 367, 369, ¶ 10, 78 P.3d 1088, 1090 (App. 2003).

¶11            An indigent parent in Arizona has the right to appointed
counsel in a severance proceeding. A.R.S. § 8-221(B) (2010). A parent is
not entitled to counsel of choice, or to a meaningful relationship with his or
her attorney. See State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580
(1998). In the criminal context, our supreme court requires the court to
evaluate several factors designed to balance the rights and interests of a
defendant with judicial economy in making its decision about appointing
new counsel. Id. These factors include:

              whether an irreconcilable conflict exists
              between counsel and the accused, and whether
              new counsel would be confronted with the
              same conflict; the timing of the motion;
              inconvenience to witnesses; the time period
              already elapsed between the alleged offense
              and trial; the proclivity of the defendant to
              change counsel; and quality of counsel.

State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987). On
appeal, Summer asserts that the juvenile court abused its discretion in
denying her request for new counsel in part because Ms. Davis had
“objectively demonstrated her ineffectiveness” by “not even submitting a
list of witnesses or exhibits.” In John M. v. Arizona Dep’t of Economic Sec.,
217 Ariz. 320, 324, ¶ 11, 173 P.3d 1021, 1025 (App. 2007), we held that the
test for effective assistance of counsel set forth in Strickland v. Washington,
466 U.S. 668 (1984) applies to severance proceedings and that, like in
criminal cases, “the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.” A parent must
establish both incompetence and prejudice. Id.

¶12           Here, the juvenile court properly considered the relevant
factors in denying Summer’s motion for a new attorney, and once the court
denied the motion for new attorney a continuance was not necessary. The
record does not demonstrate an irreconcilable conflict between Summer
and Ms. Davis, and the motions were untimely. Moreover, Summer’s
complaints about Ms. Davis do not rise to the level of incompetence, nor
does she show that the outcome of the trial would have been different had
Ms. Davis done anything differently. We find no abuse of discretion.




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                     SUMMER P. v. SHIRLEY M., et al.
                         Decision of the Court

   D. The Juvenile Court Did Not Abuse its Discretion By Failing to
      Recuse Itself

¶13            Summer also argues that the juvenile court abused its
discretion by denying her request for the court’s recusal. Thomas and
Shirley’s first witness, Alex M., testified that she volunteered as K.H.’s
youth minister at a church in Gilbert. When the juvenile court judge heard
the name of the church, he informed the parties that he attended the same
church, but that he did not know Alex M. or K.H.’s family. Summer
requested the judge to recuse himself, and he declined to do so. We find no
abuse of discretion. A party seeking the trial court’s recusal must prove
bias or prejudice by a preponderance of the evidence and we will presume
that the court is impartial. State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382,
1387 (1989) (citations omitted). The trial judge’s membership in the same
church as the witness, someone he did not know, did not create a sufficient
appearance of bias to require his recusal. Accordingly, we find no abuse of
discretion.

                               CONCLUSION

¶14          For the foregoing reasons, the juvenile court’s severance order
is affirmed.




                                   :AA




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