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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             BROOKE M., Appellant,

                                         v.

                         TIMOTHY S., W.S., Appellees.

                              No. 1 CA-JV 16-0007
                               FILED 7-5-2016


            Appeal from the Superior Court in Maricopa County
                              No. JS517173
                 The Honorable Rodrick J. Coffey, Judge

               AFFIRMED IN PART; REMANDED IN PART


                                    COUNSEL

Collins & Collins LLP, Phoenix
By C. Robert Collins
Counsel for Appellant

Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellee Timothy S.
                     BROOKE M. v. TIMOTHY S., W.S.
                         Decision of the Court




                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.



J O N E S, Judge:

¶1            Brooke M. (Mother) appeals the juvenile court’s order
declining to sever the parental rights of Timothy S. (Father) to W.S. (Child).
For the following reasons, we affirm the court’s finding of abandonment
and remand for reconsideration of Child’s best interests in light of the
guidance provided by our supreme court in Demetrius L. v. Joshlynn F., 239
Ariz. 1 (2016).

                FACTS1 AND PROCEDURAL HISTORY

¶2            Mother and Father divorced in June 2013, the month Child
was born. In September 2013, Mother married Joshua M. (Stepfather). In
September 2014, she filed a petition to terminate Father’s parental rights,
alleging he had abandoned Child.2 Mother asserted severance was in
Child’s best interests because it would free him for adoption by Stepfather,
who had provided for Child, both emotionally and financially, since birth.

¶3            A contested hearing was held in December 2015. At the
hearing, Stepfather testified he wanted to adopt Child, whom he had raised
as his own. Mother testified that allowing Stepfather to adopt Child would
benefit Child because it would provide him “a stable home and a stable
family” with a father who is in his life and available if something happened


1      We view the facts in the light most favorable to upholding the
juvenile court’s order. Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445,
449, ¶ 12 (App. 2007) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 282, ¶ 13 (App. 2002)).

2      Mother also alleged severance was warranted on the grounds of
neglect and incapacity but did not pursue these grounds at the contested
hearing.



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                     BROOKE M. v. TIMOTHY S., W.S.
                         Decision of the Court

to Mother. Father agreed Mother and Stepfather were providing Child an
appropriate home but opposed severance because he believed he was a
good role model for Child and wanted to have Child in his life.

¶4             After taking the matter under advisement, the juvenile court
entered its order finding Father had spent only two hours with Child
between June 2013 and December 2015. Father did not provide Child any
cards, gifts, or letters, and had accrued more than $7,000 in child support
arrears. Based upon these findings, the court concluded Mother had
proven by clear and convincing evidence that Father had abandoned Child.
Ariz. Rev. Stat. (A.R.S.) § 8-531(1)3 (defining abandonment as “the failure of
a parent to provide reasonable support and to maintain regular contact with
the child, including providing normal supervision”). But, relying upon Jose
M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21 (App. 2014), the court concluded
Mother had not proven severance was in Child’s best interests and
therefore denied Mother’s petition. Mother timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and
-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).

                               DISCUSSION

¶5             Mother argues the juvenile court abused its discretion in
evaluating whether severance was in Child’s best interests because it
disregarded evidence that Child would benefit from severance and
considered only whether Child would suffer a detriment if Father’s
parental rights were not terminated. We review a best interests
determination 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)). “A court abuses its discretion if
it commits an error of law in reaching a discretionary conclusion, it reaches
a conclusion without considering the evidence, it commits some other
substantial error of law, or ‘the record fails to provide substantial evidence
to support the trial court’s finding.’” Flying Diamond Airpark, L.L.C. v.
Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007) (quoting Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 456 (1982)).

¶6            With regard to best interests, the juvenile court cited Jose M.
for the proposition that “a step-parent adoption, without more, does not
establish an increase in stability or permanency to the degree necessary to
warrant the termination of a parent’s parental rights.” Indeed, Jose M. held


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


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                      BROOKE M. v. TIMOTHY S., W.S.
                          Decision of the Court

the mother’s fiancé’s stated intent to adopt “d[id] not establish an increase
in stability and permanency . . . to the degree necessary to demonstrate a
benefit warranting severance of [the f]ather’s parental rights” where there
was “no suggestion that any day-to-day aspect of the [child’s] current living
arrangement” would change if the father’s rights were severed. 234 Ariz.
at 18, ¶ 23.

¶7             Six days after the juvenile court entered its order denying
Mother’s petition, our supreme court issued Demetrius L., specifically
disavowing Jose M.’s reasoning “with respect to (1) its distinguishing the
significance of adoption in private versus state-initiated severance cases,
and (2) its assessing the benefits of adoption solely in terms of whether the
child’s ‘day-to-day’ living arrangement will change.” Demetrius L., 239
Ariz. at 5, ¶ 18. The supreme court concluded Jose M. erred in “suggesting
that a different standard applies in private severance actions and by
viewing too narrowly the prospects and prospective benefits of adoption
(that is, by focusing solely on whether adoption would change the child’s
living arrangement).” Id. Instead, best interests may be proven by a
showing of “either a benefit to the child from severance or some harm to the
child if severance is denied.” Id. at 4, ¶ 16 (citing Mary Lou C., 207 Ariz. at
50, ¶ 19, and James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App.
1998)) (emphasis added). And, under the right circumstances, “adoption
can provide sufficient benefits to support a best-interests finding in private
and state severance actions alike.” Id. at 4-6 ¶¶ 13, 17, 20-21 (discussing
numerous ways a stepparent adoption could “affirmatively improve” a
child’s life).

¶8            In sum, the determination of the child’s best interests must be
made on a case-by-case basis after considering all relevant circumstances.
What circumstances are relevant and the weight to be accorded those
factors may well vary between a state-initiated severance and a private
severance. However, the juvenile court cannot disregard the potential
benefits of a stepparent adoption simply because there is no evidence the
child’s day-to-day living arrangement would change.

¶9            Father argues the juvenile court nonetheless complied with
the principles articulated in Demetrius L. The court’s order reflects
otherwise. Although the court recognized that Mother and Stepfather
provide a stable home for Child, its analysis of Child’s best interests focused
upon the asserted detriment to Child in declining to sever Father’s parental
rights and does not squarely address any of the benefits of adoption
asserted by Mother. The court specifically cited Jose M. as requiring
evidence of a detriment to the child in continuing the parent-child


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                    BROOKE M. v. TIMOTHY S., W.S.
                        Decision of the Court

relationship to warrant severance, and then borrowed the language of Jose
M. in concluding any benefit from termination had not been proven “to the
degree necessary” to warrant the termination of parental rights. From this
order, it appears the court relied upon the Jose M. principles our supreme
court has since disavowed, disregarded evidence tending to show
severance was in Child’s best interests because it would free Child for
adoption by Stepfather, and “applied a more onerous standard” than
otherwise required to establish that severance is in Child’s best interests.
See Demetrius L., 239 Ariz. at 4, ¶ 13.

                              CONCLUSION

¶10           Because the juvenile court did not have the benefit of
Demetrius L. to direct its consideration at the time of its ruling, we cannot
say it applied the correct legal standard in evaluating whether termination
of Father’s parental rights was in Child’s best interests. We therefore
remand for reconsideration of Child’s best interests. Neither party appeals
the statutory ground for severance, and the court’s order finding Mother
proved abandonment by clear and convincing evidence is affirmed.




                                   :AA




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