110 P.3d 1013 (Ariz. 2005), CV-04-0209, Kent K. v. Bobby M.

Docket Nº:CV-04-0209-PR.
Citation:110 P.3d 1013, 210 Ariz. 279
Opinion Judge:[11] The opinion of the court was delivered by: McGREGOR, Vice Chief Justice
Party Name:KENT K. and Sherry K., Appellants, v. BOBBY M. and Leeh M., Appellees.
Attorney:[7] Office OF Patricia A. Taylor; Tucson [8] By Patricia A. Taylor Attorney for Kent K. and Sherry K. [9] Randi E. Alexander, Attorney at Law; Tucson [10] By Randi E. Alexander Attorney for Bobby M.
Case Date:April 28, 2005
Court:Supreme Court of Arizona
 
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Page 1013

110 P.3d 1013 (Ariz. 2005)

210 Ariz. 279

KENT K. and Sherry K., Appellants,

v.

BOBBY M. and Leeh M., Appellees.

No. CV-04-0209-PR.

Supreme Court of Arizona, En Banc.

April 28, 2005

Page 1014

Law office of Patricia A. Taylor, by Patricia A. Taylor, Tucson, Attorney for Kent K. and Sherry K.

Randi E. Alexander, Attorney at Law, by Randi E. Alexander, Tucson, Attorney for Bobby M.

McGREGOR, Vice Chief Justice.

¶ 1 Arizona statutes governing the termination of the parent-child relationship require the trial court to make two findings before ordering severance of parental rights. The court first must find the existence of one of several enumerated statutory grounds for termination, Ariz.Rev.Stat. (A.R.S.) section 8-533.B (Supp.2004), and that clear and convincing evidence establishes the grounds for termination. A.R.S. § 8-537.B (Supp.2004). Next, the court must determine that termination of the parent-child relationship is in the best interests of the child. A.R.S. § 8-533.B. We granted review to determine whether the clear and convincing evidence standard also applies to measure the evidence presented to establish the best interests of the child.

I.

¶ 2 Kent K. and Sherry K. (appellants) are the maternal grandparents and legal guardians of Leeh M., the child of their sixteen-year-old daughter, Barbara, and eighteen-year-old Bobby M. Barbara and Bobby M. married in March 1996, but divorced thirteen months later. Throughout their marriage, Barbara and Bobby M. engaged in a pattern of fighting and separation, 1 and both exhibited immaturity and an inability to cope with

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the responsibilities of parenting. Ultimately, appellants obtained full-time physical custody of Leeh and, in July 2000, became Leeh's legal guardians. Bobby M. initially contested the guardianship but discontinued his efforts after the first hearing because he could not afford an attorney.

¶ 3 Following the guardianship hearing, Bobby M. was incarcerated for violating probation and remained incarcerated from October 2000 to October 2002. During that time and afterward, Bobby M. failed to maintain a relationship with Leeh. While in prison, however, Bobby M. took several steps to better himself by completing a parenting class and obtaining substance abuse treatment, and he wrote several letters to both Barbara and Leeh expressing his desire to reunite their family. These letters could not be delivered to Leeh because appellants had obtained a restraining order against Bobby M. prohibiting him from contacting Leeh.

¶ 4 In April 2002, after nearly two years of caring for Leeh as her legal guardians, appellants instituted this action to terminate Bobby M.'s parental rights to Leeh. 2 See A.R.S. § 8-533.A ("Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, ... may file a petition for the termination of the parent-child relationship...."). Following a severance hearing, the trial court found that appellants proved abandonment, 3 a statutory ground for termination of parental rights, by clear and convincing evidence. The court also found, however, that appellants had not presented clear and convincing evidence that termination of Bobby M.'s parental rights would be in Leeh's best interests and, for that reason, refused to order severance.

¶ 5 On appeal, appellants claimed that the trial court erred by applying the clear and convincing standard of proof to its inquiry into the best interests of the child. 4 The court of appeals affirmed the juvenile court's ruling, holding that "the moving party in any action to terminate parental rights must prove all elements required for severance, including the best interests of the child, by clear and convincing evidence." Kent K. v. Bobby M., 2 CA-JV 2003-0059, slip op. at ¶ 9 (Ariz.App.2004) (mem.decision).

¶ 6 We granted review to clarify the standard of proof required for determining the best interests of the child in a parental severance proceeding. We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

II.

¶ 7 Arizona statutes address both the grounds and the standard of proof required to sever parental rights. A.R.S. §§ 8-533.B, -537.B. Section 8-533.B defines the grounds that can be used to justify termination and requires that a court, "in considering any of the following grounds [for termination], ... shall also consider the best interests of the child." A separate statute establishes the procedures for hearing termination cases and directs that "[t]he court's or jury's findings with respect to grounds for termination shall be based upon clear and convincing evidence under the rules applicable and adhering to the trial of civil causes." A.R.S. § 8-537.B. 5 The statute

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thus clearly requires that the party seeking termination establish the grounds for termination by clear and convincing evidence.

¶ 8 The issue presented by this case is whether the court, in determining whether termination is in the best interests of the child, should again apply a clear and convincing standard or should apply a preponderance of the evidence standard. The court of appeals interpreted section 8-537.B as requiring that both the statutory grounds for termination and the finding that termination is in the best interests of the child must be established by clear and convincing evidence. We disagree. 6

¶ 9 Our prior decisions have never directly considered this issue. In Michael J. v. Ariz. Department of Economic Security, 196 Ariz. 246, 995 P.2d 682 (2000), we stated that "[t]o justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child." Id. at 249 ¶ 12, 995 P.2d at 685. Appellants argue that this language clearly supports the conclusion that "Arizona breaks the inquiry into two parts," requiring separate standards of proof. See Kent K., 2 CA-JV 2003-0059, slip op. at ¶ 6. In contrast, the court of appeals concluded that the passage supports the conclusion that best interests must be proved by clear and convincing evidence, because we did not state that a separate standard of proof applies. Id. at¶ 7.

¶ 10 Both approaches read too much into our Michael J. opinion. The contested language merely restated the language of the statute. Indeed, we explicitly stated that we were not addressing the finding of best interests of the child, as the appellant had not challenged that finding. Michael J., 196 Ariz. at 249 ¶ 13, 995 P.2d at 685. Thus, we had no occasion to consider the proper evidentiary standard to be applied to the best interests inquiry.

¶ 11 Nor have we ever directly considered the question of the constitutionally required minimum standard of proof in a best interests inquiry. In Maricopa County Juvenile Action No. JS-500274, we held that the "best interests of the child are a necessary, but not exclusively sufficient, condition for an order of termination." 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Because severance cases involve fundamental rights, we stated, these "constitutional rights can be overridden only by the combined elements of statutorily defined improper behavior by the parent and the child's best interests." Id.

¶ 12 The court of appeals has on occasion cited JS-500274 for the proposition that the best interests of the child must be proved by clear and convincing evidence. See, e.g., Maricopa County Juvenile Action No. JS-9104, 183 Ariz. 455, 461, 904 P.2d 1279, 1285 (App.1995) ("The severing court must find by clear and convincing evidence both the statutory elements plus the best interests of the child."); Maricopa County Juvenile Action No. JS-8441, 175 Ariz. 463, 465, 857 P.2d 1317, 1319 (App.1993) ("A termination order must be supported by clear and convincing evidence establishing a statutory ground and the best interest of the child."). We understand how this misapprehension arose. Our classification of the statutory grounds and best interests as "combined elements" for severance cases could lead one to conclude, as counsel for appellee argued at oral argument, that these are two sides of the same coin. But holding that a particular finding is necessary to satisfy considerations of due process does not involve the same analysis as determining the degree of proof required to justify that finding.

¶ 13 We therefore now expressly consider, first, the standard of proof required by Arizona's statutes to be applied in a best interests inquiry and, second, whether the standard of proof required by statute satisfies constitutional due process requirements.

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A.

¶ 14 We interpret statutes to give effect to the legislature's intent. When a statute is clear and unambiguous, we apply its plain...

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