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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 TASHA M., RICHARD M., J.M., Appellants,

                                         v.

                DEPARTMENT OF CHILD SAFETY, Appellee.

                              No. 1 CA-JV 18-0205
                                FILED 3-26-2019


            Appeal from the Superior Court in Mohave County
                         No. S8015JD201500023
             The Honorable Douglas Camacho, Commissioner

                                   AFFIRMED


                                    COUNSEL

Harris & Winger PC, Flagstaff
By Chad J. Winger
Counsel for Appellant, Tasha M.

Mohave County Legal Defender’s Office, Kingman
By Eric Devany
Counsel for Appellant, Richard M.
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Attorney for Appellant, J.M.

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee, Department of Child Safety



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1             Tasha M. (“Mother”), Richard M. (“Father”), and J.M.
(collectively, “Appellants”) appeal the juvenile court’s order terminating
Mother’s and Father’s parental rights to J.M., asserting error because
termination is not in J.M.’s best interests. Because reasonable evidence
supports the court’s order, we affirm.

                              BACKGROUND

¶2             Mother is the biological parent of B.R., born in 1999, S.R., born
in 2001, J.M., born in 2004, and M.M., born in 2005. Father is the biological
parent of J.M. and M.M.

¶3            In 2015, the School Resource Officer at J.M.’s school reported
to the Arizona Department of Child Safety (“DCS”) that J.M. told a teacher
her Father had been having sex with her since she was little and “I told my
mom [but] she doesn’t believe me.” Because further questioning resulted
in a disclosure that was “limited and unspecific,” DCS did not investigate
the alleged abuse until a friend of the family made a second, more detailed
report. DCS then filed a dependency petition alleging Father had sexually
abused J.M. and B.R., and Mother had failed to protect J.M. and B.R. after
learning about the abuse. DCS filed a separate dependency petition
concerning S.R. and M.M. The court granted a dependency for J.M. and
B.R. but dismissed the dependency as to S.R. and M.M. B.R. was dismissed
from the dependency when she turned 18.




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                          TASHA M., et al. v. DCS
                           Decision of the Court

¶4            In October 2017, DCS moved to terminate Mother’s and
Father’s parental rights on the grounds of willful abuse or failure to protect
a child from willful abuse and fifteen months’ out-of-home placement
pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(2) and
(8)(c). DCS also alleged the additional ground of nine months’ out-of-home
placement, § 8-533(B)(8)(a), as to Father, and asserted termination of both
parents’ rights was in J.M.’s best interests.

¶5            The juvenile court conducted an in-camera interview with
J.M. in December 2017. Addressing the abuse, J.M. stated that Father had
touched her inappropriately for about six or seven years; however, he
stopped when “he figured out that I was on my period” and she knew he
would not touch her again. J.M. stressed she wanted to return to her family
and felt she would be safe returning home. J.M. also asserted that if the
court did not allow her to be reunited with her parents, she would stay in
foster care until she turns 18 because she will never consent to adoption.

¶6             The first day of the termination hearing was held in February
2018. In opening statements, J.M.’s attorney told the court J.M. had
recanted her allegations that Father had abused her. As the hearing
proceeded, the court admitted numerous exhibits offered by DCS,
including police reports, audio and video interview files, and behavioral
therapy reports. The court also heard testimony from two case workers
who opined that termination was in J.M.’s best interests. After DCS rested
its case, J.M.’s attorney informed the court that J.M. wanted to take the
stand. The court granted J.M.’s request despite objections from DCS and
ordered that transcripts of the court’s in-camera interview be provided to
the parties. On its own motion, given a concern that J.M.’s testimony might
contradict what she had said during her in-camera interview, the court
invited discussion on whether it should appoint a guardian ad litem
(“GAL”). Although Appellants raised various objections, the court
appointed a GAL, stating it was required to do so under A.R.S. § 8-221(I)
and “[t]he fact that the [c]ourt did not do so prior to now does not change
the statutory obligation.”

¶7             The second day of the hearing took place in May 2018. J.M.
testified that she missed her family and “would completely shut down” if
she lost her weekly visit with Mother. She also reiterated that she “would
never consent to an adoption” and stated it was not in her best interests to
terminate Mother’s and Father’s parental rights because she would never
see Mother again. J.M. was not questioned on direct or cross-examination
regarding Father’s abuse and did not recant her prior allegations of abuse.



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                           TASHA M., et al. v. DCS
                            Decision of the Court

¶8             Neither parent testified at the termination hearing. During
the parties’ closing arguments, J.M.’s counsel opposed the termination,
focusing primarily on best interests and noting many of the problems J.M.
has experienced in her various foster care placements. In contrast, the GAL
stated that she did not believe it is safe for J.M. to return to her parents’
home and therefore argued that termination was in J.M.’s best interests.
Outlining its reasoning on the record, the court found that DCS proved each
of the grounds alleged in the motion for termination and that termination
was in J.M.’s best interests. After the court entered written findings of fact
and conclusions of law, Appellants timely appealed.

                                DISCUSSION

¶9             Appellants challenge the juvenile court’s finding that DCS
proved by a preponderance of the evidence termination is in J.M.’s best
interests. “[T]he juvenile court is in the best position to weigh evidence and
assess witness credibility;” thus, we do not reweigh the evidence and will
affirm the termination order if the court’s findings are supported by
reasonable evidence and inferences. Demetrius L. v. Joshlynn F., 239 Ariz. 1,
3, ¶ 9 (2016); see also Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18
(2018).

¶10            Termination is in a child’s best interests if “the totality of the
circumstances at the time of severance” establishes that the child will either
benefit from the termination or be harmed if it is denied. Alma S., 245 Ariz.
at 150, ¶ 13. The juvenile court may consider a number of factors regarding
the presence of a harm or benefit, including whether the child is likely to be
adopted, see Maricopa Cty. Juv. Action JS-500274, 167 Ariz. 1, 6 (1990); will be
freed from an abusive parent, id.; or an existing placement is meeting the
child’s needs, Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5
(App. 1998). However, the “child’s interest in stability and security” must
be the court’s primary concern. Alma S., 245 Ariz. at 150, ¶ 12 (quoting
Demetrius L., 239 Ariz. at 4, ¶ 15).

¶11            The juvenile court acknowledged that whether termination
was in J.M.’s best interests was a “more difficult” issue than whether DCS
had proved a statutory ground for termination. Weighing various factors,
the court noted the following: (1) adoption was unlikely because J.M. has
many difficulties that need to be addressed; (2) J.M. testified she will not
consent to an adoption; (3) J.M. is bonded to Mother and does not want the
relationship to end; (4) J.M.’s current placement is meeting her needs; (5)
Father sexually abused J.M. for years; (6) J.M. told Mother about the abuse
but Mother did not believe her; (7) Mother still does not believe the abuse


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                          TASHA M., et al. v. DCS
                           Decision of the Court

happened; (8) Mother continues to live with Father; and (9) J.M.’s brothers
pressured J.M. during prior visits and blamed her for ruining the family.
The court concluded termination of Father’s rights was in J.M.’s best
interests because “there would be a detriment to having her continue a
relationship with a person that sexually abused her for years.” Similarly,
the court explained that because Mother is still with Father, J.M. cannot
return to live with Mother. Thus, the court found a continued relationship
with Mother would harm J.M. and expose her to “the risk of emotional
abuse.”

¶12            Appellants argue the court erred because adoption is out of
the question, given J.M.’s objection. Appellants rely on precedent stating
that an appellate court will not affirm a best interests finding if the child is
not adoptable and the ground for termination is an out-of-home placement.
See, e.g., Yavapai Cty. Juv. Action No. J-9956, 169 Ariz. 178, 180 (App. 1991)
(“As a threshold matter, in order to terminate parental rights [for out-of-
home placement], there must be evidence . . . the children are adoptable.”).
Assuming without deciding the continued validity of the cases on which
Appellants rely after Alma S., their argument is irrelevant because the
juvenile court terminated Mother’s and Father’s rights pursuant to both
§ 8-533(B)(8) (out-of-home placement) and § 8-533(B)(2) (abuse of a child).
See Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 244 (App. 1988)
(explaining the grounds of out-of-home placement were not intended to
allow termination when the court “know[s] full well that the child is
unadoptable,” but then addressing “whether the evidence will support
termination on the remaining ground”). Appellants do not contest the
court’s legal conclusions or findings of fact regarding the abuse ground.
Because J.M.’s adoptability was just one of various factors under
consideration, the court did not abuse its discretion in finding that
termination is in her best interests notwithstanding her insistence that she
will not consent to adoption. See Alma S., 245 Ariz. at 150, ¶ 13.

¶13            Mother separately argues the juvenile court failed to comply
with Ruben M. v. Arizona Department of Economic Security, 230 Ariz. 236
(App. 2012), which held that the court’s two legal conclusions in a
termination hearing (statutory grounds and best interests) must be
sufficiently supported by at least one factual finding. Id. at 240, ¶ 22. In
Ruben M., the juvenile court found “termination would provide the children
‘with a safe, stable environment,’ and they ‘would suffer a detriment if
Father’s rights were not terminated because it is likely that they ‘would
continue to be abused or harmed by Father.’” Id. at 241, ¶ 27. On appeal,
we concluded these findings were sufficiently specific to support the
juvenile court’s legal conclusion that termination was in the best interests


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                           TASHA M., et al. v. DCS
                            Decision of the Court

of the children. Id. at ¶ 28. Here, the court found termination removed “the
risk of emotional abuse” to J.M. that would continue if Mother’s rights were
not terminated. Contrary to Mother’s argument, the court’s finding
concerning a risk of emotional abuse is analogous to the findings in Ruben
M. Moreover, the court’s findings on the abuse ground support the court’s
best interests findings because they establish Mother’s parental unfitness.
See Alma S., 245 Ariz. at 150, ¶ 10. For example, the court found that Mother
was aware “there had been reports by the children of the sexual abuse by
[Father] and [she] did not do anything to protect the children.”

¶14            Mother also argues that “[n]othing in the record supports a
finding of past or present emotional abuse.” She directs us to A.R.S. § 8-
201(2), which defines “abuse” for purposes of Title 8 and provides several
examples of conduct constituting abuse of a child. But Mother cites no
authority suggesting a juvenile court’s consideration of a detriment to the
child is limited to this statutory definition when it evaluates the totality of
the circumstances affecting the child’s best interests. Moreover, Mother
does not challenge the admitted exhibits from J.M.’s mental health
providers diagnosing her with mental health issues and detailing her
continual emotional struggle to recover from Father’s abuse. Instead,
Mother argues the exhibits do not prove the abuse “was caused by the acts
or omissions of Mother while [J.M. was] in [her] care, custody, and control.”
Mother’s argument fails to acknowledge the juvenile court’s finding that
she failed to protect J.M. from abuse, which she has not challenged on
appeal. On this record, reasonable evidence supports the court’s finding
that a continued parent-child relationship with Mother would create “a risk
of emotional abuse.”

¶15            Finally, Mother contends termination deprives J.M. of a
functioning familial unit, asserting the juvenile court erred by turning J.M.
into a “‘legal orphan’ against her wishes.” Given J.M.’s age, Mother argues
J.M.’s wishes are “fundamental as a matter of law.” The existence of a bond
and J.M.’s wishes are factors the court should consider as a part of the
totality of the circumstances, but neither is dispositive. See Bennigno R. v.
Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013); cf. A.R.S. § 25-
403(A)(4) (listing the child’s wishes as one of eleven factors to consider in
the best interests analysis for legal decision-making and parenting time).
Here, the court explicitly considered that J.M. “loves her mother. She has a
relationship with her mother. She doesn’t want that to end.” Nevertheless,
the court concluded termination of Mother’s parental rights is in J.M.’s best
interests because a continued parent-child relationship exposed J.M. to
harm. Recognizing that we do not “reweigh the evidence or substitute our
judgment for that of the juvenile court,” Bennigno R., 233 Ariz. at 351, ¶ 31,


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                        TASHA M., et al. v. DCS
                         Decision of the Court

we conclude that reasonable evidence supports the court’s finding that
termination is in J.M.’s best interests.

                             CONCLUSION

¶16          We affirm the juvenile court’s order terminating Mother’s and
Father’s parental rights to J.M.




                       AMY M. WOOD • Clerk of the Court
                        FILED: AA




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