Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jade K. v. Loraine K.

Court of Appeals of Arizona, Second Division

September 16, 2016

Jade K., Appellant,
v.
Loraine K. and A.K., Appellees.

         Appeal from the Superior Court in Pima County No. S20150113 The Honorable Wayne E. Yehling, Judge Pro Tempore

          Sarah Michèle Martin, Tucson Counsel for Appellant

          Nuccio & Shirly, P.C., Tucson By Jeanne Shirly Counsel for Appellee Loraine K.

          Judge Staring authored the opinion of the Court, in which Presiding Judge Howard and Judge Espinosa concurred.

          OPINION

          STARING, Judge.

         ¶1 Jade K. appeals from the juvenile court's order terminating his parental rights to his eight-year-old daughter, A.K., pursuant to a private petition filed by her mother, Loraine K. For the following reasons, we reverse the termination order.

         Background

         ¶2 On review of a termination order, we view the evidence in the light most favorable to sustaining the juvenile court's decision. Jordan C. v. Ariz. Dep't of Econ. Sec, 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009). As set out in the court's detailed order, Jade and Loraine were divorced in October 2011. Loraine subsequently remarried in 2015. Although no permanent parenting-time order had been entered in Jade and Loraine's divorce proceedings, they were awarded temporary joint legal custody of A.K., with an understanding that Jade would have unsupervised parenting time with A.K. on most weekends, from Thursday until Sunday. The parents adhered to this arrangement through July 2014.

         ¶3 The arrangement changed, however, after July 31, 2014, less than two months before A.K.'s seventh birthday. The juvenile court explained that "[o]n that day [Jade], who lived in an apartment complex on Golf Links Road in Tucson, was exercising parenting time with [A.K.], " who went outside the apartment to play. According to the court's ruling, Jade "assumed" A.K. would "be supervised by other adults" living nearby. A.K. then wandered from Jade's apartment near the back of the complex to a grassy area in front of it, adjacent to the street. While there, she found and ate some wild mushrooms and became ill as a result. After calling a poison control hotline, and "upon their recommendation, " Jade took A.K. to a hospital where she was treated and released.

         ¶4 In June 2015, Loraine filed a petition to terminate Jade's parental rights, alleging grounds of abandonment and neglect. According to the juvenile court, family court proceedings-including Loraine's July 2015 notice of intent to relocate A.K. and Jade's August 2015 request to enforce parenting time-were deferred pending resolution of Loraine's termination petition. Since October 2015, Loraine and A.K. have been living in North Carolina, where Loraine's husband is stationed in the military. Loraine testified her husband was "very much looking forward to" adopting A.K. "if this severance goes through."

         ¶5 After a hearing that spanned five sessions occurring over a period of approximately two months, the juvenile court granted the petition, finding "by clear and convincing evidence that the events of July 31, 2014, constituted an act of neglect on [Jade's] part" and, by a preponderance of the evidence, that termination of Jade's parental rights was in A.K.'s best interests. The court made clear, however, its finding that Loraine "ha[d] not proven by clear and convincing evidence any other act of neglect on [Jade's] part." Similarly, the court found Loraine "ha[d] not proven by the heightened standard of clear and convincing evidence that [Jade] has abandoned" A.K. This appeal followed.

         Discussion

         ¶6 We review a juvenile court's termination order for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, ¶ 9, 344 P.3d 842, 844 (App. 2015). Although "[p]arents possess a fundamental liberty interest in the care, custody, and management of their children[, ]" "parental rights are not absolute[, ]" and a court may terminate a parent's rights if it finds clear and convincing evidence[1] of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 24, 41, 110 P.3d 1013, 1018, 1022 (2005); A.R.S. §§ 8-533(B), 8-537(B). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C, 223 Ariz. 86, ¶ 18, 219 P.3d at 303. That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec, 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).

         ¶7 Section 8-533(B)(2) provides, as a ground for termination, a finding "[t]hat the parent has neglected or wilfully abused a child." Relevant here, the definition of "neglect" includes "[t]he inability or unwillingness of a parent . . . of a child to provide that child with supervision . . . if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201 (25)(a).[2] In determining the events of July 31 constituted an act of neglect by Jade, the juvenile court found he "had a duty to supervise [A.K.] after she left the apartment that day . . . and did not follow up on his apparently baseless assumption that other adults would be available to supervise her." The court further found Jade's "failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.