IN RE: TERMINATION OF PARENTAL RIGHTS AS TO C.E. (2025)

OPINION

¶1 K.L. (“Mother”) appeals from the juvenile court's denial of her private petition to terminate the parental rights of S.E. (“Father”) as to their child Carson (a pseudonym). For the following reasons, we reverse the juvenile court's order and remand, directing the juvenile court to terminate Father's parental rights.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father met through partying with friends and lived together for a short time. Father began regularly using marijuana and cocaine in 2018; Carson was born late that year.

¶3 Father initially exercised parenting time, during which he would take Carson to playgrounds, arcades, and the zoo. Father also bought gifts and wrote Carson cards. In February 2021, Mother petitioned the family court to establish legal decision making and parenting time. The parties reached a temporary agreement which made Mother the primary residential parent and granted Father parenting time every other Saturday, supervised by his mother (“Grandmother”). The temporary agreement required Father to complete random drug testing for six months before he could exercise unsupervised parenting time. In May 2022, the family court issued an order, modifying the parties’ existing parenting-time agreement to require Father to exercise his parenting time at a supervised facility.

¶4 Father did not undergo drug testing in 2022 because he still used drugs at the time. He began testing in May 2023. Father did not test positive for any prohibited substances but did have several missed, diluted, or incomplete tests.

¶5 Father has not seen Carson since May 2022 and did not attempt to visit Carson or attempt to arrange phone or video contact with Carson until after Mother petitioned to terminate Father's parental rights in October 2023. In her petition, Mother alleged grounds of abandonment and substance abuse. Mother attempted to serve her petition in November, but Grandmother refused to give the process server Father's location. In December, after Mother located Father and served her petition, Father engaged a supervised parenting agency to contact Mother, but the agency was unable to establish parenting time. The following February, Father petitioned to enforce the supervised parenting time, providing the court with a one-sentence explanation on the form petition.

¶6 During the juvenile court's termination adjudication hearing in April 2024, Mother, her husband (“Stepfather”), and a caseworker testified in favor of termination. Stepfather testified about his relationship with and desire to adopt Carson. Father and Grandmother testified in support of maintaining Father's parental rights. The court also received various exhibits, including Father's drug test results.

¶7 Both Mother and the caseworker testified about Father's limited relationship with Carson before abandonment. The caseworker testified she interviewed Carson in November 2023 when he was four and that he articulated he “had no memory or understanding or knowledge of who [Father] is.” Mother also testified that Carson did not remember Father but had a close relationship with Stepfather and calls him “Dad.”

¶8 Father testified he stopped using drugs in May 2023. He testified that he wanted “another chance” because he planned to establish a relationship with Carson if the court denied Mother's petition. He claimed that, despite his conduct, his “relationship with [Carson]” had always been the “most important thing to [him] in [his] life.”

¶9 The juvenile court concluded Father had abandoned Carson, but denied Mother's petition because it found termination was not in Carson's best interests. The court balanced Carson's rights against Father's, noting Carson's “interest in obtaining a loving, stable home ․ deserves at least as much weight as that accorded the interest of the unfit parent in maintaining parental rights.” The court acknowledged that “generally a child's best interests are served by giving a parent a finite window of opportunity for remediation.”

¶10 The court correctly found Father had not seen Carson since May 2022. But it also made three inconsistent—and incorrect—findings: that Father stopped exercising his parenting time “only around one year ago”; that Mother obtained the orders requiring supervised parenting time at a facility in 2023 instead of 2022; and that Father had not exercised supervised parenting time “since May of 2023.”

¶11 The court acknowledged that “Stepfather serves as a father figure for [Carson]” and found Father was “employed and appears to have taken some important steps towards sobriety.” Ultimately, based on its conclusion that Father could “eventually resume a meaningful parental relationship with [Carson],” the court denied Mother's termination petition.

¶12 Mother appealed, and we have jurisdiction. A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-2101(A)(1).

DISCUSSION

¶13 To terminate parental rights, the juvenile court must first find by clear and convincing evidence the existence of at least one statutory ground under Arizona Revised Statutes Section 8-533 and then find by a preponderance of the evidence that termination would be in the child's best interests. Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 477, ¶ 20 (2023). We review the juvenile court's termination decision for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, 58, ¶ 9 (App. 2015). In doing so, we accept the juvenile court's factual findings if reasonable evidence and inferences support them, Brionna J., 255 Ariz. at 478, ¶ 30, and we will find an abuse of discretion when the court commits an error of law, James A. v. Dep't of Child Safety, 244 Ariz. 319, 321, ¶ 7 (App. 2018).

I. Reversible Error

¶14 Mother frames her appeal as, in part, questioning the juvenile court's weighing of evidence. But her challenge to the juvenile court's handling of Father's testimony identifies two legal errors. First, the juvenile court identified and applied the wrong legal standard for evaluating Carson's best interests. Second, the juvenile court improperly based its best-interests conclusion on Father's speculation about a potential future relationship with Carson. Mother also correctly noted that the court compounded these errors by relying on incorrect factual findings in its analysis.

A. Improper Legal Standard

¶15 Termination of parental rights is in a child's best interests if the child will benefit from the termination or will be harmed if the relationship continues. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2018). The juvenile court presumes that the interests of the parent and child have diverged once one of the statutory grounds for termination has been proven. Id. at ¶ 12. “The ‘balancing’ performed by the juvenile court during the best-interests inquiry does not pit the parent's interests against the child's best interests to determine which predominate; at this stage, it is a given that the child's best interests predominate.” Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 478, ¶ 31 (2022).

¶16 The juvenile court here did precisely what our supreme court has directed it not to do: it pitted Carson's interests against Father's, articulating its goal as “balanc[ing] the child's rights against those of the unfit parent.” The court thus abused its discretion by applying the wrong legal standard to determine Carson's best interests.

B. Reliance on Father's Speculation

¶17 The court also erred by resting its conclusion on Father's subjective desire to create a potential future relationship. To be sure, the court must consider the totality of the circumstances in its best-interests determination. Alma S., 245 Ariz. at 150–51, ¶ 13. And because the juvenile court was in the best position to determine credibility, we do not question the court's implicit conclusion that Father was credible. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). But the juvenile court here cited no authority, and we are aware of none, for basing its ruling on a parent's speculation, however plausible, regarding the possibility of a future relationship. Rather, our courts look at whether the child's interests are best served by “termination or maintenance of the parent-child relationship.” Timothy B., 252 Ariz. at 478, ¶ 31 (emphasis added).

¶18 Carson and Father did not have a relationship to preserve at the time of the termination adjudication hearing. See In re C.R., 256 Ariz. 170, 176, ¶ 26 (App. 2023) (noting the juvenile court must not overlook the current parent-child relationship and may not entirely rely on the potential of a future relationship). The court found Father could “eventually resume a meaningful parental relationship with [Carson].” But this conclusion is speculative and disregards the current lack of a relationship. Therefore, the court committed a legal error and abused its discretion.

C. Incorrect Factual Findings

¶19 Finally, the juvenile court erred by relying on incorrect factual findings to support its best-interests findings. In concluding the benefit of a potential future relationship with Father “outweighs the benefit to be gained by [Carson] through [S]tepfather's adoption,” the juvenile court noted, “[t]his is particularly true given the length of time Father was in the child's life.” (emphasis added). But the juvenile court mistakenly believed that Father had contact with Carson from birth until May 2023, when in reality his last contact was in May 2022. Accordingly, the court abused its discretion by relying on critical factual errors as to the length of time since Father was involved in Carson's life.

¶20 At bottom, the court's misapplication of the law based in part on clearly incorrect factual findings requires us to reverse the court's ruling on termination.

II. Remand

¶21 No reasonable evidence supports the juvenile court's conclusion that preserving Father's parental rights is in Carson's best interests. Accordingly, on remand we direct the juvenile court to order the termination of Father's parental rights as to Carson. See Oscar O., 209 Ariz. at 337, ¶ 17.

¶22 Carson would benefit from adoption. Carson referred to Stepfather as “Dad,” and Stepfather testified to his willingness and ability to adopt Carson immediately. This alone may be sufficient to find that termination is in Carson's best interests. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4–5, ¶¶ 16–17 (2016) (“[A]doption can provide sufficient benefits to support a best-interests finding in private and state severance actions alike.”).

¶23 There is no reasonable evidence that preserving Father's parental rights would benefit Carson. At the time of the termination adjudication hearing, Father had no relationship with Carson to maintain because he was absent for the prior two years of Carson's life. Father does not dispute that he made no effort to see Carson in the 16 months before Mother petitioned for termination—or even immediately thereafter. In evaluating a child's best interests, the court “must consider the totality of the circumstances existing at the time of the severance determination.” Alma S., 245 Ariz. at 150–51, ¶ 13 (emphasis added).

¶24 Accordingly, we remand and direct the juvenile court to order termination of Father's parental rights as to Carson. See Oscar O., 209 Ariz. at 337, ¶ 17 (reversing denial of termination and remanding with directions to grant termination when no “reasonable evidence [ ] suggest[ed] that severance and adoption were not in [children's] best interests” and clear and convincing evidence supported the opposite conclusion). We recognize that ordering termination on appeal is rare. But we confront here a rare record with a willing and able adoptive parent, no existing relationship between Father and Carson, and no evidence that preserving parental rights would be in Carson's best interests. That rare combination compels a rare outcome.

¶25 The dissent argues we should instead remand with instructions for the juvenile court to apply the correct legal analysis because that approach is appropriate “when a court makes a legal error in applying the law to contested facts.” Infra Dissent ¶ 36. But here, in addition to the court's legal errors, the record is devoid of evidence supporting a finding that termination was not in Carson's best interests. Although appellate courts should not reweigh contested evidence on appeal, we can—and sometimes do—determine there is no evidence in the record supporting a juvenile court's finding, including a best-interests finding. See Oscar O., 209 Ariz. at 333, ¶ 1; Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 8 (1990) (relied on by the dissent here but reversing a best-interests finding on appeal “when the record is entirely devoid of any explanation of what Bobby will gain or lose”); cf. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (“An abuse of discretion exists when the record ․ is devoid of competent evidence to support the decision.” (cleaned up)). It cannot be that we will readily reverse termination on appeal when there is no evidence that termination is in a child's best interests but fail to order termination on appeal when the only evidence is that termination is in a child's best interests.

¶26 Because this case falls into that latter category, remanding with instructions to grant termination is proper. See Oscar O., 209 Ariz. at 337, ¶ 17; see also Ariz. R. P. Juv. Ct. 608(b)(2) (“The appellate court may ․ remand for appropriate action by the juvenile court.”). Doing so protects Carson's interest in stability and security, whereas prolonging termination will further delay his adoption. See Alma S., 245 Ariz. at 150, ¶ 12 (“The child's interest in stability and security must be the court's primary concern.” (cleaned up)). Mindful that Carson's stability and security is our primary concern, we decline to further prolong termination and adoption by remanding for additional proceedings merely because that is the conventional path.

CONCLUSION

¶27 We reverse and remand with directions to grant Mother's petition to terminate Father's parental rights as to Carson.

¶28 I agree with the Majority that the juvenile court erred by applying an incorrect best-interests analysis by weighing Father's interest in preserving his parental rights equally with Carson's best interests. I also agree that the juvenile court misstated by a year the date when Father last saw Carson, a significant factual error in its best-interests analysis. But with respectful regret, I cannot agree with the Majority's extraordinary remedy for those errors—reversing and remanding with instructions to terminate Father's parental rights. I would instead remand with instructions for the juvenile court to conduct a new best-interests analysis using the correct legal standard. Remanding for a redetermination of best interests under the proper standard with a correct view of the facts is certainly “the conventional path”—as the Majority characterizes it. Supra ¶ 26. But that is because it is the correct path to protect Carson's and Father's rights; remand respects the different roles of the juvenile court and this appellate court, leaving factual determinations to the court that actually sees the witnesses and hears the testimony and evidence firsthand and avoiding remote second-guessing by the appellate court.

¶29 Parents have a “fundamental liberty interest ․ in the care, custody, and management of their child[ren],” even when “they have not been model parents.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” Id. As recently noted, the “constant practice of the common law” has been “to respect the entitlement of those who bring a child into the world to raise that child.” Douros v. Morse, 258 Ariz. 546, 552 ¶ 29 (2024) (Catlett, J., concurring) (quoting Adoptive Couple v. Baby Girl, 570 U.S. 637, 668 (2013) (Scalia, J., dissenting)). “[T]ermination of parental rights is not favored and [ ] generally should be considered only as a last resort.” Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 4 (1990), cited with approval in Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 14 (2016). Parental rights can be taken away only if a trial court finds by clear and convincing evidence enumerated statutory grounds for terminating parental rights and, by a preponderance of the evidence, that termination of those rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 280, 284 ¶¶ 1, 22 (2005). Even in a case of abandonment, as here, termination is appropriate only when it is also in the child's best interests. JS-500274, 167 Ariz. at 4.

¶30 I disagree with the Majority's conclusion that “[n]o reasonable evidence supports the juvenile court's conclusion that preserving Father's parental rights is in Carson's best interests.” Supra ¶ 21. The Majority's reasoning is faulty for two reasons. First, the Majority disregards evidence of both Father's prior relationship with Carson and his intentions towards a future relationship with him, instead substituting its own once-removed view of the evidence and witness credibility. “[T]he juvenile court is in the best position to weigh evidence and assess witness credibility.” Demetrius L., 239 Ariz. at 3 ¶ 9. Second, in relying on its own view of the evidence, the Majority singularly focuses on Father's period of abandonment, even though, “the mere fact of abandonment” is insufficient to prove best interests. JS–500274, 167 Ariz. at 5–7; see Demetrius L., 239 Ariz. at 4 ¶ 14.

¶31 Reasonable evidence supports Father's relationship with Carson before abandonment. Although Father did not provide a timeline for visitation, he testified that he cut Carson's umbilical cord in the delivery room and had a relationship with him until 2022. Further, the parties first reached a parenting time agreement in February 2021, and Father last saw Carson in May 2022. During this period, Grandmother and Father both testified that Father saw Carson every other Saturday. He also testified that he would take Carson out to breakfast, go to the park or zoo, and in general do things any father would with a young child. He also submitted photos showing various outings corresponding with his testimony as documentary evidence. Thus, a factfinder could conclude that Father had a relationship with Carson from birth until he was three and a half years old and that Father consistently saw Carson during this period for at least a year and a quarter when Carson was between two and one quarter and three and a half years old.

¶32 A fact finder could also reasonably find that Father could resume a relationship with Carson and that such relationship would benefit Carson. Father testified that “[m]y relationship with my son has never stopped being the most important thing to me in my life․ I genuinely miss my son. I miss spending time with him, loving him. Anything that you can think of that a father enjoys doing with their kid, I miss doing that with my son.” He further explained why he had abandoned Carson and that “[i]f given another chance, I would prove that it would be the best thing because he could have a real relationship with his real father, his real dad, which is me.”

¶33 The Majority sets aside this evidence and decides that the court's finding that Father could “eventually resume a meaningful parental relationship with [Carson],” is “speculative and disregards the current lack of a relationship.” Supra ¶ 18. But testimony is evidence, see Ariz. R. Evid. 701, and “the mere fact of abandonment” is insufficient to prove best interests, JS–500274, 167 Ariz. at 5–7. Thus, because abandonment necessarily implies that the parent has no current relationship with the child, the Majority's contention that Father lacks a current relationship with Carson is nothing more than a restatement of the fact of abandonment. See supra ¶ 18.

¶34 Consequently, because abandonment alone does not answer the best-interests question, the juvenile court should consider the post-petition acts of the unfit parent. See JS–500274, 167 Ariz. at 8 (evidence of parent's intentions toward child based on post-petition evidence “may properly be used in weighing whether the child's best interests would be served by termination”). After the petition was filed, Father moved in family court to enforce the parenting plan. And, as noted, he also testified to his desire to resume a relationship with Carson and how he wants to act as a parent. A factfinder could find this testimony credible, which the juvenile court evidently did.

¶35 Further, the juvenile court was not required to terminate Father's parental rights merely because of the benefit of adoption. See Demetrius L., 239 Ariz. at 4 ¶ 14 (“[A] court need not automatically conclude that severance is in a child's best interests just because the child is adoptable; there may be other circumstances indicating that severance is not the best option.”); accord Lawrence R. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 585, 587 ¶ 8 (App. 2008). Ultimately, “[i]n deciding what is best for the child,” the court must examine “the totality of the circumstances existing at the time of termination.” Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 478 ¶ 31 (2022). These circumstances necessarily include any benefit to Carson from maintaining Father's parental rights. Thus, the court did not err by weighing the benefit of adoption to Carson against the benefit to Carson of preserving Father's parental rights.

¶36 As an appeals court, we cannot examine witnesses or evidence firsthand. This is why we defer to the trial court's weighing of evidence and credibility determinations. See Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 582 ¶ 23 (2021) (“[W]e do not reweigh the evidence because the court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.” (cleaned up)); see also Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 478 ¶ 28 (2023) (“The court of appeals also erred when it exceeded the proper scope of review by reweighing the evidence presented to the juvenile court.”). In my review of this Court's decisions and opinions, I found only one case where this Court reversed a juvenile court's denial of a termination petition and ordered the parent's rights terminated. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 333 ¶ 1 (App. 2004). But that case involved potential physical harm to the children at issue, id. at 333, 335 ¶¶ 1, 9, unlike here where the juvenile court did not find a detriment to preserving Carson's relationship with Father. Traditionally, when a court makes a legal error in applying the law to contested facts, we remand with instructions for the court to conduct the correct legal analysis. In my view, we should remand with instructions for the court to apply the correct best-interests analysis.

¶37 Because the interests of the parent and child have diverged once one of the statutory grounds for termination has been proved, Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150 ¶ 12 (2018), “the court must balance [the] diluted parental interest against the independent and often adverse interests of the child in a safe and stable home life,” Kent K., 210 Ariz. at 286 ¶ 35. In balancing these interests, although the court's primary concern is the “child's interest in stability and security,” the totality of the circumstances evaluation “includ[es] the parent's interest in maintaining a positive parent-child relationship and the parent's efforts and ability to do so.” Timothy B., 252 Ariz. at 478 ¶ 31. In other words, “the focus of the best-interests inquiry is on the child,” but courts “should consider a parent's rehabilitation efforts” as part of the best-interests analysis. Alma S., 245 Ariz. 146 at 151 ¶ 15. Thus, a parent's efforts at rehabilitation and reunification are relevant because they affect the child's best interests.

¶38 For the reasons the Majority states, the juvenile court could find that termination of Father's parental rights is in Carson's best interests. But the court must weigh the totality of the circumstances in determining Carson's best interests, and thus the court cannot consider the benefit to Carson from adoption in isolation. See Timothy B., 252 Ariz. at 478 ¶ 31. The court heard evidence of both a loving relationship between Father and Carson between February 2021 and May 2022 and how Father would parent Carson if his rights were preserved. In these circumstances, the court must weigh the benefit to Carson from adoption against the benefit to Carson from preserving Father's rights to the extent that the court determines such benefit exists. And in these circumstances, the juvenile court could find that termination is not in Carson's best interests. I therefore must dissent from the Majority's decision to terminate Father's parental rights on its own rather than remanding for the juvenile court to reconsider the best interests under the correct legal standard and a correct understanding of the facts.

PERKINS, Judge:

Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Michael S. Catlett joined. Vice Chief Judge Randall M. Howe concurred in part and dissented in part.