from the Superior Court in Maricopa County No. JD527671 The
Honorable James T. Blomo, Judge
Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel
Arizona Attorney General's Office, Tucson By Cathleen E.
Fuller Counsel for Appellee Department of Child Safety
Judge Samuel A. Thumma delivered the Opinion of the Court, in
which Presiding Judge Diane M. Johnsen and Judge James P.
A. Thumma, Judge
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). 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.
AND PROCEDURAL HISTORY
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
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
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
Mother Has Shown No Error In The Superior Court's
Best Interests Finding.
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).
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 ¶ 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 ...