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Michelle M. v. Department of Child Safety

Court of Appeals of Arizona, First Division

August 31, 2017

MICHELLE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.N., Appellees.

         Appeal from the Superior Court in Maricopa County No. JD527671 The Honorable James T. Blomo, Judge

          Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant

          Arizona Attorney General's Office, Tucson By Cathleen E. Fuller Counsel for Appellee Department of Child Safety

          Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.

          OPINION

          Samuel A. Thumma, Judge

         ¶1 Michelle M. (Mother) appeals from an order terminating her parental rights to her biological daughter H.N. On appeal, Mother argues the superior court erred in finding that termination was in H.N.'s best interests and that the Department of Child Safety (DCS) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA). See 25 U.S.C. § 1912(a) (2017).[1] Although the best interests finding was proper, the appeal is stayed for 90 days and jurisdiction is revested in the superior court to allow for proper notice under ICWA and any appropriate proceedings as a result of that notice.

         FACTS [2] AND PROCEDURAL HISTORY

         ¶2 H.N. was born in October 2015 substance-exposed to opiates and was hospitalized for more than a month. DCS filed a dependency petition, claiming H.N. is an Indian child based on her alleged father's self-report that he was registered with the Navajo Nation. DCS provided proper notice under ICWA to the Navajo Nation. Father, however, did not establish paternity and the Navajo Nation did not appear in the proceeding.

         ¶3 At an April 2016 hearing, DCS argued ICWA did not apply, noting father had refused to participate in paternity testing. Because paternity had "not been established and therefore an ICWA finding cannot be made, " the superior court found H.N. was "not eligible for enrollment in the Navajo Nation, " meaning ICWA did not apply. The court then found H.N. dependent as to Mother, who had failed to attend the hearing, and adopted a case plan of family reunification.

         ¶4 In June 2016, the court changed the case plan to severance and adoption. DCS' motion to terminate alleged, as to Mother, substance abuse and six-months time-in-care and that severance would be in H.N.'s best interests. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3) & (B)(8)(b). After a severance adjudication in December 2016, the court granted the motion to terminate, finding DCS proved by clear and convincing evidence both statutory grounds and proved by a preponderance of the evidence that termination would be in H.N.'s best interests. This court has jurisdiction over Mother's timely appeal from that order pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A) and 12-120.21(A) and Arizona Rules of Procedure for the Juvenile Court 103 and 104.

         DISCUSSION

         I. Mother Has Shown No Error In The Superior Court's Best Interests Finding.

         ¶5 In a case not governed by ICWA, to terminate parental rights, the superior court must find by clear and convincing evidence that at least one statutory ground listed in A.R.S. § 8-533(B) has been proven and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep 't of Econ. Sec, 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts, " this court will affirm an order terminating parental rights if it is supported by reasonable evidence. Jordan C. v. Ariz. Dep 't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted).

         ¶6 Mother does not challenge the finding that DCS proved both statutory grounds for severance, meaning those issues are waived. See Crystal E. v. Dep 't of Child Safety,241 Ariz. 576, 577-78 ΒΆ 5 (App. 2017). Mother does argue the superior court erred in finding termination was in H.N.'s best interests because Mother and H.N. have a relationship that should be allowed to continue. To support a best interests finding, "the court must find either that the child will benefit from the termination of the relationship or that the child would be harmed by ...


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