Appeal in Maricopa County Juvenile Action No. JS-6831, Matter of

• Decision Date: 07 January 1988
• Docket Number: No. 1,CA-JUV,JS-6831,1
• Citation: 155 Ariz. 556,748 P.2d 785
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.382.
• Court: Arizona Court of Appeals

Page 785

748 P.2d 785

155 Ariz. 556

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JS-6831.

No. 1 CA-JUV 382.

Court of Appeals of Arizona Division 1, Department A.

Jan. 7, 1988.

[155 Ariz. 557] Robert K. Corbin, Atty. Gen., by Macre Monson, Asst. Atty. Gen., Phoenix, for Arizona Dept. of Economic Sec.

Marc R. Grant, Phoenix, for the Children.

Robert D. Rosanelli, Phoenix, for appellant, John Hutchins.

OPINION

JACOBSON, Judge.

This is an appeal from an order of the Superior Court of Maricopa County, Juvenile Division, entered on January 19, 1987, denying petitioner's motion to terminate the parental rights of Rebecca Van Antwerp. The subjects of this case are Misty Hutchins, now 12 years of age, and her half sister, Tabitha Hutchins, now 9 years of age. Both children are the natural children of Rebecca Van Antwerp. Petitioner, John Hutchins is the natural father of Misty only. Tabitha herself does not know that Mr. Hutchins is not her natural father.

Mr. Hutchins and Ms. Van Antwerp were divorced in 1981. Ms. Van Antwerp was given custody of both children. However, in 1983, Ms. Van Antwerp was unemployed and on Public Assistance. At this time she brought the children to Phoenix, where Mr. Hutchins had relocated and entered into an oral agreement with him, that he would take custody of the children for a period of six months to one year, while Ms. Van Antwerp stabilized her situation. Later in 1983, both Ms. Van Antwerp and Mr. Hutchins remarried. Both children have been living with Mr. Hutchins and his new wife Tammy since 1983.

During the period from 1983 until 1986, there were conflicting versions of what took place. Ms. Van Antwerp maintains that Mr. Hutchins was responsible for decreasing communication between herself and her daughters, and that he eventually refused to return the children to her as they had previously agreed. Mr. Hutchins alleges that Ms. Van Antwerp ceased all but token attempts to contact her children and effectively abandoned them.

In January 1986, John Hutchins filed a petition to terminate the parental rights of Ms. Van Antwerp with respect to Misty and Tabitha on grounds of abandonment, pursuant to A.R.S. § 8-533(B)(1). In February 1986, he filed a dependency petition with respect to Tabitha, alleging that she was a minor child in need of effective parental care and control, and had no parent capable of exercising such care and control. These proceedings were consolidated but hearings were continued until October 1986.

In the meantime, Ms. Van Antwerp filed a petition for modification of custody and child support pertaining to Misty, in Maricopa County Superior Court, which had continuing jurisdiction over matters pertaining to the divorce of Ms. Van Antwerp and Mr. Hutchins. On September 16, 1986, Judge Pro Tempore Terry Kiser found, that:

1. The father, John Hutchins, had refused to return the child to the mother;

2. The mother, Rebecca Van Antwerp, had made no attempts to legally have the child returned, although she had not abandoned the child, and had been in continual contact with her while the child was in the father's possession; and

3. That joint custody be awarded, with the father to be the primary residential parent and the mother to have visitation rights as set forth therein.

Ms. Van Antwerp was also ordered to pay the sum of $50 per month to Mr. Hutchins for support of Misty.

On January 19, 1987, after three days of hearings, Judge Rapp entered his findings and orders in the consolidated juvenile matters. Judge Rapp found that Tabitha was dependent. Tabitha was made a ward of the court and custody was granted to John and Tammy Hutchins. As to the termination proceeding, Judge Rapp found that the statutory ground of abandonment had been met, but that the best interests of the children required denial of the termination petition.

It is from this second finding that petitioner, John Hutchins, appeals. Essentially, he contends that once a proper statutory ground for termination has been found under A.R.S. § 8-533(B), A.R.S. § 8-538 mandates the termination of parental rights. He further argues that although A.R.S. § 8-533(B) allows the juvenile court to consider the needs of the child in determining the existence or absence of a statutory ground for termination, the juvenile court may not deny termination based solely on the best interests of the children. Finally, petitioner argues that the evidence does not support a finding that denial of termination is not in the best interests of the children.

A.R.S. § 8-538(B) states:

If the court finds grounds for the termination of the parent-child relationship it shall terminate such relationship and take one of the following courses of action:

1. Appoint an individual as a guardian of the child's person;

2. Appoint an individual as guardian of the child's person and vest legal custody in another individual or an authorized agency.

Petitioner argues that the use of the word "shall" removes all discretion from the juvenile court once a "ground" is found. We agree. However, the "grounds" referred to are set out in A.R.S. § 8-533(B), which provides:

(B) Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any one of the following grounds, the court may also consider the needs of the child.

1. That the parent has abandoned the child.

(Emphasis added).

Petitioner here urges a literal reading of the statute, such that "the needs of the child" is considered in determining the existence or absence of the statutory ground. He argues that once the statutory grounds are found, the interests of the child are no longer a factor, and cannot be used to deny termination. We disagree.

It is true that termination cannot be predicated solely on the best interests of the child. See Juvenile Appeal No. JS-4374, 137 Ariz. 19, 23, 667 P.2d 1345, 1348 (App.1983); Juvenile Appeal No. JS-4130, 132 Ariz. 486, 491, 647 P.2d 184, 189 (App.1982); Juvenile Appeal No. S-624, 126 Ariz. 488, 490, 616 P.2d 948, 950 (App.1980). The reason that the "best interests of the child" alone do not provide a sufficient basis for termination, is that the right of parents to the care and custody of their child is a fundamental right. Juvenile Appeal No. JS-4942, 142 Ariz. 240, 242, 689 P.2d 183, 185 (App.1984); Juvenile Appeal No. J-3824, 130 Ariz. 530, 534, 637 P.2d 740, 744 (1981). Many parents are not the "best" parents for children or do not provide them with a perfect home, yet this is insufficient to terminate this basic and important relationship. "The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their...