NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

E.O., Appellant,

v.

MICHAEL M., KATIE A., Appellees.

No. 1 CA-JV 14-0310

Appeal from the Superior Court in Maricopa County

No. JS 517064

The Honorable Janice K. Crawford, Judge

VACATED AND REMANDED

COUNSEL

Terrea L. Arnwine, P.L.L.C.

By Terrea L. Arnwine

Guardian ad litem for child

Katie A.,

Appellee Mother

Gates Law Firm, L.L.C., Phoenix

By S. Marie Gates

Counsel for Appellee Father
E.O. v. MICHAEL M., KATIE A.

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop 

joined.

D O W N I E, Judge:

¶1 Terrea L. Arnwine, Guardian ad Litem (“GAL”) for minor 

child E.O. (“the Child”), appeals the juvenile court’s order denying a 

petition to sever the parental rights of Michael M. (“Father”). For the 

following reasons, we vacate that order and remand for reconsideration of 

the Child’s best interests.

FACTS AND PROCEDURAL HISTORY

¶2 The Child was born in August 2007 to Father and Katie A. 

(“Mother”), who were unmarried but cohabiting at the time. Thereafter, 

Mother and the Child moved in with the maternal grandparents, and

Father resided with the Child’s paternal grandmother. 

¶3 During the Child’s early years, Mother and Father 

maintained a sporadic romantic relationship marked by ongoing conflict

that led to injunctions against harassment, orders of protection, and 

domestic violence charges. 

¶4 In December 2007, Father was incarcerated for three months 

on charges including theft of means of transportation and fraud. Mother 

subsequently petitioned for and received sole custody of the Child in 

family court proceedings; Father was awarded weekly supervised

parenting time. After his release from jail, Father had regular visitation 

with the Child, supervised by the paternal grandmother and paternal 

great grandparents. 

¶5 In 2010, Father was incarcerated for a burglary conviction. 

Mother and Father initially stayed in touch through phone calls and 

letters, and Father attempted to maintain a relationship with the Child by 

sending her drawings. In September 2012, Mother ended her relationship 

with Father after meeting A.A. (“Stepfather”). Mother and Stepfather 

married in April 2013. The Child continued to regularly visit Father’s 
E.O. v. MICHAEL M., KATIE A.

Decision of the Court

3

family, and Father sent the Child correspondence and gifts. Mother 

stopped permitting visits with Father’s family in February 2014.

¶6 Mother filed a severance petition in August 2013, seeking to 

terminate Father’s parental rights on the basis that he was incarcerated on 

a felony conviction for a length of time that would deprive the Child of a 

normal home for a period of years. The juvenile court appointed Arnwine 

as GAL for the Child. Mother later filed an amended petition that alleged 

abandonment and “incapacity” as additional grounds for severance. 

¶7 After a two-day severance trial, the court ruled that although 

Father had abandoned the Child, severance was not in her best interests. 

The GAL timely appealed. We have jurisdiction pursuant to Arizona 

Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and 

-2101(A)(1).

DISCUSSION

¶8 As a threshold matter, Father suggests that the GAL’s notice 

of appeal is defective because “there is no avowal that counsel 

communicated with the child or was unable to communicate due to the 

child’s age.” Father cites no authority for his contention, though we 

presume he is relying on Arizona Rule of Procedure for the Juvenile Court 

104(B), which states:

When the appellant is represented by counsel, the notice of 

appeal or cross-appeal shall contain the following statement: 

“By signing and filing this notice of appeal, undersigned 

counsel avows that [he/she] communicated with the client 

after entry of the judgment being appealed, discussed the 

merits of the appeal and obtained authorization from the 

client to file this notice of appeal.”

¶9 The GAL, though, is not appearing as the Child’s counsel. 

She is “an officer of the court appointed to protect the child’s interests 

without being bound by the child’s expressed preferences.”1 American 

 

1 The GAL erroneously refers to herself in the opening brief as 

“Attorney for the Child.” She was appointed solely as GAL. The juvenile 

court expressly declined to appoint counsel for the Child. Father does not 

argue the GAL lacks standing to raise the arguments set forth in the 

opening brief. See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491 n.2, 
E.O. v. MICHAEL M., KATIE A.

Decision of the Court

4

Bar Association, Standards of Practice for Lawyers who Represent Children in 

Abuse and Neglect Cases § A-2 (1996); see also Castro v. Hochuli, 236 Ariz. 587, 

591-92, ¶ 11, 343 P.3d 457, 461-62 (App. 2015). We have previously held 

that, “just as Rule 104(B) is not triggered when a party files a notice on his 

or her own behalf, Rule 104(B) is not triggered by a GAL’s filing.” Cecilia 

A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286, 288, ¶ 7, 274 P.3d 1220, 1222 

(App. 2012).

¶10 To justify severance of parental rights, the juvenile court 

must find at least one statutory ground enumerated in A.R.S. § 8-533(B) by 

clear and convincing evidence. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 

Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a 

preponderance of the evidence that severance is in the child’s best 

interests. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 

1022 (2005). 

¶11 The court here ruled that Father had abandoned the Child —

a determination that has not been challenged on appeal. Despite this 

finding, the court concluded that terminating Father’s parental rights was 

not in the Child’s best interests. It is this determination that the GAL 

challenges — arguing that the court improperly focused on a concern that 

severing Father’s rights would jeopardize the Child’s relationship with

her paternal grandmother and paternal great grandparents.

¶12 At the outset of its best interests analysis, the juvenile court 

cited several factors that clearly weigh in favor of severance. It noted, for 

example, that Stepfather wishes to adopt the Child and that he “has taken 

on the role of being a father to [her].” The court further found that Mother 

and Stepfather “provide the Child with a safe, stable and happy home” 

and “provide for all of [her] needs.” See Audra T. v. Ariz. Dep’t of Econ. 

Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (factors that 

weigh in favor of severance include the availability of an adoptive 

placement and a placement that is meeting the child’s needs). The court 

then discussed the Child’s relationship with her paternal relatives, stating:

The Child has a close bonded relationship with Paternal 

Great Grandparents and Paternal Grandmother. Before 

Father’s incarceration, Paternal Great Grandparents 

supervised Father’s parenting time and had the Child every 

 

¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (issue not developed by party on 

appeal deemed waived).
E.O. v. MICHAEL M., KATIE A.

Decision of the Court

5

weekend even when Father was not present for his 

parenting time. After Father’s incarceration in 2010, Mother 

allowed Paternal Great Grandparents to have the Child at 

their home on most weekends. Paternal Great Grandfather 

picked the Child up from school when asked by Mother. 

The Child has her own room at Paternal Great 

Grandparents’ home.

. . . . 

Although an adoption by Mother’s husband may serve the 

Child’s best interest, severing Father’s parental rights will 

likely result in the Child losing her relationship with 

Paternal Great Grandparents. The Court finds that it is not 

in the Child’s best interest to lose her relationship with 

Paternal Great Grandparents. Accordingly,

Mother’s Amended Petition for Termination of Parent-Child 

Relationship . . . is denied. 

¶13 We infer that the juvenile court understood that, under the 

law, severance likely would end any relationship between the Child and 

her paternal relatives. As the GAL observes, however, under A.R.S. § 25-

409(C), grandparents and great grandparents may petition for visitation 

with a child born out of wedlock. If they were to file a petition for 

visitation while Father remains the Child’s legal parent, a subsequent

severance and adoption by Stepfather would not extinguish any visitation 

rights awarded to them. See A.R.S. § 25-409(H) (automatic termination of 

visitation rights does not apply “if the child is adopted by the spouse of a 

natural parent after the natural parent remarries”). At the time of the 

severance trial, however, the paternal relatives had taken no legal steps to 

establish such rights. 

¶14 Aside from its concern that the Child might lose her 

relationship with the paternal relatives if Father’s rights were severed, the 

juvenile court cited nothing that supports a refusal to terminate on best 

interests grounds. Because it appears that the court placed almost 

singular reliance on that circumstance, without considering the paternal 

relatives’ ability to seek and obtain visitation in the family court, we 

vacate the order denying Mother’s severance petition and remand for

reconsideration of the Child’s best interests. The paternal relatives’ failure 

to seek a visitation order should not serve as a bar to stability and 

permanence for the Child through adoption. 
E.O. v. MICHAEL M., KATIE A.

Decision of the Court

6

CONCLUSION

¶15 For the foregoing reasons, we vacate the order denying 

Mother’s severance petition. We remand to the juvenile court for further 

proceedings relating to the Child’s best interests.