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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            SANDRA T., Appellant,

                                        v.

                         TREVOR A., H.T., Appellees.

                             No. 1 CA-JV 15-0399
                               FILED 7-5-2016


           Appeal from the Superior Court in Maricopa County
                             No. JS517250
                The Honorable Rodrick J. Coffey, Judge

                                  AFFIRMED


                                   COUNSEL

Berkshire Law Offices, PLLC, Phoenix
By Keith Berkshire
Counsel for Appellant

Law Office of Bernard P. Lopez, Goodyear
By Bernard P. Lopez
Counsel for Appellee Trevor A.
                     SANDRA T. v. TREVOR A., H.T.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Sandra T. (“Mother”) appeals from the juvenile court’s denial
of her petition to sever the parental rights of Trevor A. (“Father”) to their
child, H.T. For reasons that follow, we affirm the court’s order.

             FACTS AND PROCEDURAL BACKGROUND

¶2           H.T. was born in October 2011. Mother and Father never had
a formal relationship, and shortly after H.T.’s birth, their interactions
became contentious. Through mediation, Mother and Father negotiated a
settlement agreement addressing legal-decision making, parenting time,
and child support. Father subsequently contested the agreement, but after
conducting a hearing, the family court held that the agreement was valid
and enforceable.

¶3           Over the course of the next year, Father used increasingly
inflammatory and offensive language when communicating with Mother.
In September 2012, two days before Father was to take H.T. on vacation,
Mother requested an order of protection against Father, which led to Father
not taking H.T. on vacation. Mother and Father subsequently agreed to
move the parenting exchanges to a police station, and the court appointed
a parenting coordinator.

¶4             Over the next few months, Father continued to use
disrespectful and derogatory language, not only directed at Mother but also
Mother’s counsel and the parenting coordinator. In parenting exchanges at
the police station, Father purposefully delayed returning H.T. to Mother,
showed up late or did not show up at all, engaged in verbal confrontations
with officers, and on several occasions aggressively put a video recorder in
Mother’s face. As a result of Father’s increasingly unpredictable behavior,
the parenting coordinator recommended an emergency suspension of
Father’s unsupervised visitation.        The family court adopted the
recommendation and required that Father attend anger management




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                     SANDRA T. v. TREVOR A., H.T.
                         Decision of the Court

counseling and obtain a psychiatric evaluation before unsupervised
visitation would be reinstated.

¶5            Father did not schedule supervised visits or fulfill the
requirements to have unsupervised parenting time reinstated; rather, in
April 2013 and February 2014 he filed motions to modify parenting time
and child support obligations because he had moved to Maryland. The
family court denied his requests.

¶6             In June 2014, Mother filed a petition to terminate Father’s
parental rights to H.T., alleging that Father had abandoned H.T. by not
seeing him since November 2012, and that Father had mental health issues
that prevented him from parenting. The juvenile court granted Mother’s
request to serve discovery on Father, and Mother requested that Father
identify any mental health professionals he had seen and the resulting
diagnoses. Despite several deadline extensions, Father only partially
responded to Mother’s interrogatories and requests for admissions; he
refused entirely to respond to discovery requests regarding his mental
health at all, even after the court informed him that such information was
not privileged. Mother asked the court to sanction Father for this refusal
by drawing the adverse inference that Father has mental health issues that
prevent him from parenting.

¶7            At the severance hearing, Father, Mother, and the parenting
coordinator testified. Father stated that he has never been diagnosed with
a mental illness, but he continued to assert that mental health information
was privileged and he refused to answer questions regarding previous
assessments. The juvenile court considered voluminous exhibits, including
text messages and emails from Father, as well as documents from the family
court proceedings. After taking the matter under advisement, the court
found that Father had abandoned H.T. The court declined to find, however,
that Father had a mental illness that prevented him from parenting.
Notwithstanding the abandonment ground for severance, the court
nevertheless denied the severance petition, concluding that Mother had not
shown that severance would be in H.T.’s best interests. Mother timely
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 8-235.1




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


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                      SANDRA T. v. TREVOR A., H.T.
                          Decision of the Court

                               DISCUSSION

I.     Discovery Violation Sanctions and Due Process.

¶8             Mother argues that the juvenile court violated her due process
rights by declining to enforce the discovery rules, because Father’s refusal
to answer questions about his mental health history prevented her from
cross-examining him on that issue. She also contends the court erred by
failing to sanction Father for his discovery violations.

¶9            Under Arizona Rule of Procedure for the Juvenile Court
(“Juvenile Rule”) 44(G), the court may impose sanctions when a party fails
to disclose discoverable information. The court may also avail itself of the
discovery provisions, including those for sanctions, found in Arizona Rules
of Civil Procedure (“Civil Rules”) 27–37. See Ariz. R.P. Juv. Ct. 44(E).

¶10            We review de novo a claimed denial of due process, but even
assuming a denial of due process, we will reverse only if the denial has
prejudiced a party’s interests. See Jeff D. v. Dep’t of Child Safety, 239 Ariz.
205, 207, ¶ 6 (App. 2016) (as amended); County of La Paz v. Yakima Compost
Co., 224 Ariz. 590, 598, ¶ 12 (App. 2010). We review a decision regarding
sanctions for an abuse of discretion. See Seidman v. Seidman, 222 Ariz. 408,
411, ¶ 18 (App. 2009).

¶11           “The disclosure rules are designed to provide parties a
reasonable opportunity to prepare for trial or settlement-nothing more,
nothing less.” Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 13 (App. 2003)
(quotation omitted). We prefer to decide cases on the merits; therefore, we
interpret the disclosure rules in a manner to maximize the likelihood of
doing so. See Rivers v. Solley, 217 Ariz. 528, 530, ¶ 13 (App. 2008).

¶12            In finding that Mother had not demonstrated Father’s
inability to parent based on mental illness, the court stated it intended to
draw an adverse inference based on Father’s discovery violations, but
concluded that this alone was not sufficient to prove that Father had a
mental illness that rendered him unable to discharge parental
responsibilities for a prolonged indeterminate period. See A.R.S. § 8-
533(B)(3). In reaching this conclusion, the court acknowledged that Father’s
conduct was “significantly concerning,” but stated that there was no
evidence Father had undergone a psychological evaluation or been
diagnosed with a mental illness.

¶13          Although the record demonstrates that Father engaged in
inexcusable conduct and behaved badly throughout the family court


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                      SANDRA T. v. TREVOR A., H.T.
                          Decision of the Court

proceedings, Father’s actions did not require a finding under A.R.S. § 8-
533(B)(3) that he has a mental illness that will prevent him from discharging
his parental responsibilities. While the court may have been justified in
reaching a contrary conclusion, having observed and considered Father’s
testimony, the court did not abuse its discretion byrejecting Mother’s claim
regarding this issue. Moreover, the court found grounds for severance
based on abandonment, and severance requires only a single underlying
statutory ground. A.R.S. § 8-533(B); Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 251, ¶ 27 (2000). Accordingly, an additional statutory ground
based on an inference of mental illness was not necessary to establish a basis
for severance.

¶14            Mother also argues that sanctions were mandatory under
Civil Rule 26(f), which provides that “[t]he court shall assess an appropriate
sanction” for discovery violations that are “unreasonable, groundless,
abusive or obstructionist.” But under Civil Rule 27(f), the court retains
discretion to determine an “appropriate” sanction under the circumstances.
See Taliaferro v. Taliaferro, 188 Ariz. 333, 340–41 (App. 1996); see also, e.g.,
Ariz. R. Civ. P. 37(b)(2), (c)(1), (d), (f) (collectively confirming the superior
court’s discretion to impose discovery sanctions appropriate to the
circumstances presented); cf. Ariz. R.P. Juv. Ct. 36 (directing that the best
interests of the child remains the primary consideration in interpreting the
Juvenile Rules). Accordingly, the juvenile court had discretion to assess
whether to sanction Father for his behavior, and Mother has not shown an
abuse of that discretion.

II.    Best Interests.

¶15            Mother argues that the court abused its discretion by
concluding that severance was not in H.T.’s best interests because it did not
properly consider factors relevant to the analysis. Because the juvenile
court is best situated to “weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings,” we will accept the
court’s findings of fact unless they are not supported by any reasonable
evidence, and we will affirm the court’s best interests ruling unless it is
clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4
(App. 2002).

¶16           In a best interests analysis, we “may assume that the interests
of the parent[] and the child diverge,” because the parent has already been
found unfit (in this case based on abandonment) under A.R.S. § 8-533(B).
Kent K. v. Bobby M., 210 Ariz. 279, 285, ¶ 31 (2005). But a statutory ground
establishing a basis for severance does not compel the conclusion that


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                      SANDRA T. v. TREVOR A., H.T.
                          Decision of the Court

termination is in the child’s best interests. See Demetrius L. v. Joshlynn F.,
239 Ariz. 1, 4, ¶ 14 (2016). Rather, the party moving for severance must
show either that severance provides a benefit to the child or that the denial
of severance will harm the child. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 19 (App. 2004). Relevant factors include whether the existing
placement is meeting the child’s needs, and whether the child is adoptable.
Demetrius L., 239 Ariz. at 3–4, ¶¶ 12, 15; Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010).

¶17           Mother argues that the court erred in its best interests analysis
by focusing on whether there was an immediately available adoptive
parent and on the lack of specific harm to H.T., rather than giving weight
to Mother’s assertions that (1) she was adequately caring for the child, (2)
Father has mental health issues, and (3) Father’s behavior toward Mother
negatively affected the child.

¶18             Although Mother contends that the court did not consider
that she was currently meeting H.T.’s needs, the court was aware of this
from Mother’s testimony. And while in certain circumstances the court
could be justified in finding that severance was in the child’s best interests
based on that factor, the court may also weigh this against the harm that the
child will face by losing a parent. See Maricopa Cnty. Juv. Action No. JS-
500274, 167 Ariz. 1, 6 (1990) (“This reasoning reflects an unspoken
assumption that a parent, even an inadequate one, is better than no parent
at all unless the child can somehow benefit from losing his natural parent.”).
The court is not compelled to make such a best interests finding just because
Mother is adequately caring for the child.

¶19           Mother also argues that the court misapplied the law by not
considering the impact Father’s behavior towards her would have on H.T.
But the court expressly considered Father’s behavior and nevertheless
found that despite Father’s abhorrent behavior towards Mother, he had not
harmed or threatened to harm H.T. The court noted that Father had not
seen H.T. in three years, and that any future contact would be subject to
family court supervision.

¶20          Mother’s arguments essentially ask us to reweigh the
evidence, which we will not do. See Xavier R. v. Joseph R., 230 Ariz. 96, 100,




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                    SANDRA T. v. TREVOR A., H.T.
                        Decision of the Court

¶ 12 (App. 2012). Based on the current record, the juvenile court did not
clearly err by denying the severance petition.2

                            CONCLUSION

¶21        For the foregoing reasons, we affirm the juvenile court’s order
denying Mother’s petition to sever Father’s parental rights.




                                :AA




2     We note that our decision does not preclude Mother from filing a
renewed petition for severance if continued abandonment or other
circumstances result in additional harm to H.T., or if there are factors
suggesting a potential benefit from severance.


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