Jade K. v. Loraine K.

• Decision Date: 16 September 2016
• Docket Number: No. 2 CA–JV 2016–0067,2 CA–JV 2016–0067
• Citation: 380 P.3d 111,240 Ariz. 414
• Parties: Jade K., Appellant, v. Loraine K. and A.K., Appellees.
• Court: Arizona Court of Appeals

240 Ariz. 414

380 P.3d 111

Jade K., Appellant,

v.Loraine K. and A.K., Appellees.

No. 2 CA–JV 2016–0067

Court of Appeals of Arizona, Division 2.

Filed September 16, 2016

Sarah Michèle Martin, Tucson, Counsel for Appellant

Nuccio & Shirly, P.C., Tucson, By Jeanne Shirly, Counsel for Appellee Loraine K.

Judge Staring authored the opinion of the Court, in which Presiding Judge Howard and Judge Espinosa concurred.

STARING, Judge:

¶ 1 Jade K. appeals from the juvenile court's order terminating his parental rights to his eight-year-old daughter, A.K., pursuant to a private petition filed by her mother, Loraine K. For the following reasons, we reverse the termination order.

Background

¶ 2 On review of a termination order, we view the evidence in the light most favorable to sustaining the juvenile court's decision. Jordan C. v. Ariz. Dep't of Econ. Sec. , 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009). As set out in the court's detailed order, Jade and Loraine were divorced in October 2011. Loraine subsequently remarried in 2015. Although no permanent parenting-time order had been entered in Jade and Loraine's divorce proceedings, they were awarded temporary joint legal custody of A.K., with an understanding that Jade would have unsupervised parenting time with A.K. on most weekends, from Thursday until Sunday. The parents adhered to this arrangement through July 2014.

¶ 3 The arrangement changed, however, after July 31, 2014, less than two months before A.K.'s seventh birthday. The juvenile court explained that "[o]n that day [Jade], who lived in an apartment complex on Golf Links Road in Tucson, was exercising parenting time with [A.K.]," who went outside the apartment to play. According to the court's ruling, Jade "assumed" A.K. would "be supervised by other adults" living nearby. A.K. then wandered from Jade's apartment near the back of the complex to a grassy area in front of it, adjacent to the street. While there, she found and ate some wild mushrooms and became ill as a result. After calling a poison control hotline, and "upon their recommendation," Jade took A.K. to a hospital where she was treated and released.

¶ 4 In June 2015, Loraine filed a petition to terminate Jade's parental rights, alleging grounds of abandonment and neglect. According to the juvenile court, family court proceedings—including Loraine's July 2015 notice of intent to relocate A.K. and Jade's August 2015 request to enforce parenting time—were deferred pending resolution of Loraine's termination petition. Since October 2015, Loraine and A.K. have been living in North Carolina, where Loraine's husband is stationed in the military. Loraine testified her husband was "very much looking forward to" adopting A.K. "if this severance goes through."

¶ 5 After a hearing that spanned five sessions occurring over a period of approximately two months, the juvenile court granted the petition, finding "by clear and convincing evidence that the events of July 31, 2014, constituted an act of neglect on [Jade's] part" and, by a preponderance of the evidence, that termination of Jade's parental rights was in A.K.'s best interests. The court made clear, however, its finding that Loraine "ha[d] not proven by clear and convincing evidence any other act of neglect on [Jade's] part." Similarly, the court found Loraine "ha[d] not proven by the heightened standard of clear and convincing evidence that [Jade] has abandoned" A.K. This appeal followed.

Discussion

¶ 6 We review a juvenile court's termination order for an abuse of discretion. E.R. v. Dep't of Child Safety , 237 Ariz. 56, ¶ 9, 344 P.3d 842, 844 (App. 2015). Although "[p]arents possess a fundamental liberty interest in the care, custody, and management of their children[,]" "parental rights are not absolute[,]" and a court may terminate a parent's rights if it finds clear and convincing evidence¹ of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination is in the child's best interests. Kent K. v. Bobby M. , 210 Ariz. 279, ¶¶ 24, 41, 110 P.3d 1013, 1018, 1022 (2005) ; A.R.S. §§ 8–533(B), 8–537(B). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. , 223 Ariz. 86, ¶ 18, 219 P.3d at 303. That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec. , 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).

¶ 7 Section 8–533(B)(2) provides, as a ground for termination, a finding "[t]hat the parent has neglected or wilfully abused a child." Relevant here, the definition of "neglect" includes "[t]he inability or unwillingness of a parent ... of a child to provide that child with supervision ... if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8–201(25)(a).² In determining the events of July 31 constituted an act of neglect by Jade, the juvenile court found he "had a duty to supervise [A.K.] after she left the apartment that day ... and did not follow up on his apparently baseless assumption that other adults would be available to supervise her." The court further found Jade's "failure to supervise [A.K.] created an unreasonable foreseeable risk to her health and welfare as manifested by her ingesting poisonous mushrooms and becoming sick as a result."

¶ 8 On appeal, Jade argues the juvenile court's determination that he "has neglected ... a child" pursuant to § 8–533(B)(2) is "clearly erroneous" and "wholly unsupported by the evidence."³ He does not dispute that, while A.K. was unsupervised on July 31, she ingested wild mushrooms and became ill as a result. Instead, although he concedes "there are certainly instances in which a single act of abuse or neglect may be sufficient to justify termination of a parent's rights," Jade maintains "this is not such an instance."⁴

¶ 9 We agree the evidence relating to A.K.'s unsupervised play and ingestion of mushrooms on July 31 is insufficient to support termination of Jade's parental rights on the ground of neglect. The juvenile court's ruling expressly excluded other evidence of neglect as insufficient, and we defer to that determination, in light of that court's superior ability to judge the credibility of witnesses and to resolve disputed facts. See Ariz. Dep't of Econ. Sec. v. Oscar O. , 209 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App. 2004). But we conclude the record lacks clear and convincing evidence sufficient to support termination of Jade's parental rights based on the July 31 incident.

Statutory Construction

¶ 10 In its termination order, the juvenile court identified, as a relevant "legal question," "whether a single, albeit significant, act of neglect can constitute grounds for termination" under § 8–533(B)(2). Noting that the statute's plain language permits termination based on a finding that "the parent has neglected ... a child," id. the court concluded nothing in that subsection or in the definition of neglect in § 8–201(25) "allows the Court to read into those statutes a requirement that the alleged neglect be persistent or involve more than one act or omission." "Nor," the court continued, may it "read into the statute a requirement that it find that the neglect is likely to be repeated or that the parent has failed to engage in services to prevent the neglect from occurring in the future." Accordingly, the court concluded "that a single act of neglect may constitute grounds for termination."

¶ 11 We appreciate the juvenile court's acknowledgment, reflected in its citation to E.R. v. Department of Child Safety , 237 Ariz. 56, ¶ 10, 344 P.3d 842, 845 (App. 2015), that "[i]f a statute's language is clear and unambiguous, we apply it without resorting to other methods of statutory interpretation, unless doing so would lead to impossible or absurd results." Here, however, we conclude the evidence was insufficient to support the required finding that A.K.'s lack of supervision on July 31 was caused by Jade's "inability or unwillingness," § 8–201(25), to provide it. Our conclusion is informed not only by the language of the relevant statutes, but by our recognition that a termination petition seeks "not merely to infringe [a parent's] fundamental liberty interest, but to end it," by way of "a judicial determination that the parent[ is] unfit to raise [his] own children." Santosky v. Kramer , 455 U.S. 745, 758, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; see also M.L.B. v. S.L.J. , 519 U.S. 102, 116 n.8, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (recognizing "official decree extinguishing" parent-child relationship is "challenged state action" in both state-initiated and private termination proceedings); Kent K. , 210 Ariz. 279, ¶ 28, 110 P.3d at 1019 (recognizing holding in Santosky that parental rights may be severed "only by establishing the grounds for parental unfitness by at least clear and convincing evidence").

¶ 12 As noted above, § 8–201(25) defines neglect as a parent's "inability or unwillingness" to provide a child with supervision, when "that inability or unwillingness causes [an] unreasonable risk of harm to the child's health or welfare." But in the context of neglect alleged in a termination petition, a parent's inability or unwillingness to provide supervision must be such that it can fairly be shown, by clear and convincing evidence, to render him "unfit to be a parent," M.L.B. , 519 U.S. at 121, 117 S.Ct. 555. See also Santosky , 455 U.S. at 760 n.10, 102 S.Ct. 1388 (expressing doubt that state "constitutionally could terminate a parent's rights without showing parental unfitness"); cf. In re Maricopa Cty. Juv. Action No. JS–7359 , 159 Ariz. 232, 236, 766 P.2d 105, 109 (App. 1988) (noting Arizona termination "statutes incorporate a concept of parental unfitness," such that mother's "refusal to remedy the situation that...