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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

E.O.

, Appellant

,

v.

MICHAEL M., KATIE A.

, Appellee s

.

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 M other

Gates Law Firm, L.L.C.

, Phoenix By S. Marie Gates C ounsel for Appellee FatherE.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. Winth rop 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 th at 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 Ch ild moved in with the maternal grandparents

, and Father resided with the C hild’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 again st harassment, orders of protection, and domestic violence charges

.
¶4 In December 2007, Father was incarcerated for three months on charges including theft of m eans of transportation and fraud. Mother subsequently petitioned for and received sole custo dy of the Child in family court proceeding s; 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 20 10, Fa ther 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 ende d her relationship with Father after m eeting A.A. (“Stepfather”). Mother and Ste pfather married in April 2013. The Child continued to regularly visit Father’sE.O. v. MICHAEL M., KATIE A. Decision of the Court

3 family, and Father sent the Child correspondence and gifts. Mother stopped permitt ing v isits w ith Father’s family in February 2014

.
¶6 Mother filed a severance petition in August 2013, seeking to terminate Father’s paren tal rights on the basis that he was incarcerated on a felony conviction for a length of time that would deprive the Child of a

norma l 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.”) sect ions 8

- 235(A), 12

- 120.21(A)(1), and

- 2101(A)(1).

DISCUSSION

¶8 As a threshold matter, Father suggest s that th e GAL’s notice of a ppeal i s 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 co ntention, 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 fi ling 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 T he G AL , though

, is not appearing as the Child ’s counsel

. S he 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 t he Child.” S he was appointed solely as GAL . T he juvenile court expressly declin ed 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. Co m m’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 Re present 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 statutor y 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 fi nd by a preponderance of the evidence that severance is in the c hild’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 F ather had abandoned the Child

—

a determination that has not been challenged on appeal. Despite this finding, the court con cluded that termin ating Father’s parental rights was not i n the Child ’s best interests. It is this determination that t he GAL challenges

— argu ing that the court improperly focused on a concern that severing Father’s rights would jeopardize the Child’s re lationship 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 ado pt the C hild and that he “ has taken on the role of being a father to [ her ]. ” The cour t 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 Ec on. Sec. , 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (f actors 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 relatio nship 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 Chil d 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 fro m 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 the y 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 t he 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 no thing that support s a refusal to term inate on best
interests grounds. Because it appears that the court placed almost singular reliance on th at circumstance, without considering t he paternal relatives’ a bility to seek and obtain visitation in the family court , we vacate the order denying Mot her’s severance petition and remand for reconsideration of the Child’s best interests. T he paternal relatives’ failure to seek a visitation order sh ould 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.