100 P.3d 943 (Ariz.App. Div. 2 2004), 2 CA-JV 2003-0075, Arizona Dept. of Economic Sec. v. Oscar O.

Docket Nº:2 CA-JV 2003-0075, 2 CA-JV 2003-0076, 2 CA-JV 2003-0077.
Citation:100 P.3d 943, 209 Ariz. 332
Party Name:ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Clarissa O., Savanna O., Tony E., and Guadalupe E., Appellants, v. OSCAR O., Appellee.
Case Date:November 30, 2004
Court:Court of Appeals of Arizona
 
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Page 943

100 P.3d 943 (Ariz.App. Div. 2 2004)

209 Ariz. 332

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Clarissa O., Savanna O., Tony E., and Guadalupe E., Appellants,

v.

OSCAR O., Appellee.

Nos. 2 CA-JV 2003-0075, 2 CA-JV 2003-0076, 2 CA-JV 2003-0077.

Court of Appeals of Arizona, Second Division, Department B.

Nov. 30, 2004

Page 944

[209 Ariz. 333] Terry Goddard, Arizona Attorney General, By Michelle R. Nimmo, Tucson, for Appellant Arizona Department of Economic Security.

Law Office of Cynthia D. Ettinger, P.C., By Cynthia D. Ettinger, Tucson, for Appellants Clarissa O. and Savanna O.

Cheryl S. Blum, P.C., By Cheryl S. Blum, Tucson, for Appellants Tony E. and Guadalupe E.

Matthew A. Jasper, Tucson, for Appellee.

OPINION

ESPINOSA, J.

¶ 1 In this appeal, the Arizona Department of Economic Security (ADES) and two children contend the juvenile court erred by denying ADES's motion to terminate the father's parental rights, despite the existence of a statutory ground for severance and the immediate availability of a suitable adoptive placement for the children, based solely on the court's finding that terminating the father's rights is not in the children's best interests. Because the record contains no reasonable evidence to support such a finding but, rather, establishes the children's lengthy out-of-home placement, the marginal nature of the father's relationship with the children, potential harm to the children from continuing the relationship, and availability of a good adoptive home, we conclude that the trial court erred in not severing the father's parental rights.

Factual and Procedural Background

¶ 2 Clarissa O., born September 2, 1998, and Savanna O., born March 1, 2001, are the second and third of four children born to appellee Oscar O. and his wife, Lydia O. Clarissa and Savanna were adjudicated dependent in July 2001. Following a permanency hearing in October 2002, the juvenile court directed ADES to file a motion to terminate both parents' rights to the girls.

¶ 3 Lydia then executed a relinquishment of her parental rights, consenting to the girls' adoption by their maternal aunt and uncle, appellants Tony E. and Guadalupe E., with whom they have been living since June 2001. The juvenile court terminated Lydia's rights pursuant to the relinquishment. Oscar contested the severance of his rights, and after a lengthy hearing, the juvenile court found ADES had proved the statutory ground alleged, out-of-home placement pursuant to A.R.S. § 8-533(B)(8)(b). The court nonetheless denied the motion to sever Oscar's

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[209 Ariz. 334] rights, finding that terminating them would be contrary to the best interests of the children. See § 8-533(B). ADES, the children, and the children's foster parents all appeal from the juvenile court's ruling.

Standard of Review

¶ 4 As the juvenile court acknowledged in its minute entry, the standard of proof in actions to terminate parental rights is clear and convincing evidence, Rule 66(C), Ariz. R.P. Juv. Ct., 17B A.R.S.; Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 995 P.2d 682 (2000), and the party seeking termination bears the burden of persuasion, In re Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, 748 P.2d 785 (App.1988). A juvenile court as the trier of fact in a termination proceeding is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts. Jesus M. v. Ariz. Dep't Econ. Sec., 203 Ariz. 278, 53 P.3d 203 (App.2002). We therefore accept the juvenile court's findings of fact "unless no reasonable evidence supports those findings" and will affirm its severance order unless the order is clearly erroneous. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App.1997).

Discussion

¶ 5 In the single issue raised on appeal, appellants contend there was no reasonable evidence to support the juvenile court's conclusion that it would be contrary to the best interests of Clarissa and Savanna to terminate their "positive, though limited, relationship with their father." Oscar acknowledges the court failed to specify any evidentiary basis for its conclusion, but suggests the court "likely considered" testimony by various witnesses that the weekly supervised visits between Oscar and the girls were positive, appropriate, and apparently enjoyable and that the girls displayed affection toward Oscar during the visits. Nowhere in the juvenile court's lengthy minute entry, however, did it mention any of the testimony Oscar cites. The omission is notable here because of the volume of...

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