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Alyssa W. v. Justin G.

Court of Appeals of Arizona, First Division

November 15, 2018

ALYSSA W., Appellant,
v.
JUSTIN G., J.G., Appellees.

          Appeal from the Superior Court in Mohave County No. L8015SV201607005 The Honorable Douglas Camacho, Judge Pro Tempore

          Silk Law Office, Lake Havasu City By Melinda Silk Counsel for Appellant

          Judge Maria Elena Cruz delivered the opinion of the Court, in which Presiding Judge Michael J. Brown and Judge David W. Weinzweig joined.

          OPINION

          CRUZ, JUDGE.

         ¶1 Alyssa W. ("Mother") challenges the juvenile court's order denying her petition to terminate the parental rights of Justin G. ("Father") to their son, J.G. Mother argues the court erroneously placed the burden on her to demonstrate that she personally made reasonable efforts to help Father overcome his alcohol abuse and reunify him with J.G. We hold that Arizona Revised Statutes ("A.R.S.") section 8-533(B) does not require a private party seeking to terminate another's parental relationship to make affirmative efforts to reunify that parent, but only to show that necessary rehabilitative services were made available to the parent or it would have been futile. We reverse and remand for a best interests determination.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 J.G. was born in Lake Havasu City, in December 2012; his parents lived together for a time but never married. Mother and Father separated due, in part, to Father's alcohol abuse and Mother eventually filed a petition to terminate Father's parental rights to J.G.

         ¶3 Following a contested severance hearing, the juvenile court found that (1) Father has a history of alcohol abuse; (2) his alcohol abuse causes him to be unable to discharge his parental responsibilities; and (3) a reasonable belief exists that Father's chronic alcohol abuse will continue. After finding that "Father's unawareness of his substance abuse issues . . . shows that any attempts at [persuading him to seek help for his substance abuse issues] would likely have been futile," the court nonetheless declined to sever Father's parental rights because Mother failed to make reasonable efforts to reunify the family or show, notwithstanding its own earlier finding of likely futility, that such efforts would have been futile.

         ¶4 Mother filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).[1]

         DISCUSSION

         ¶5 Mother argues the juvenile court erred when it interpreted A.R.S. § 8-533(B) to require her, a private party, to prove she made reasonable efforts to reunify Father with J.G. or that such efforts would have been futile.[2]

         ¶6 We review de novo the court's interpretation of a statute. See Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78, ¶ 7 (App. 2005). When construing a statute, we look first to the statutory language; if the language is plain and unambiguous, we apply it without resorting to other rules of statutory construction. Ariz. Dep't of Econ. Sec. v. Superior Court, 186 Ariz. 405, 408 (App. 1996). If the language of a statute or rule is unambiguous, "we apply it as written." Roberto F. v. DCS, 237 Ariz. 440, 441, ¶ 6 (2015). Only if the language is unclear do "we apply secondary principles of construction." Id.

         ¶7 To terminate parental rights, a juvenile court must first find by clear and convincing evidence, A.R.S. § 8-863(B), the existence of at least one statutory ground for termination pursuant to A.R.S. § 8-533(B). Kent K. v. Bobby M.,210 Ariz. 279, 284, ΒΆ 22 (2005). Section 8-533(B)(3) permits the termination of parental rights when it is shown "[t]hat the parent is unable to discharge parental responsibilities because of . . . a history of chronic abuse of . . . ...


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