Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Navajo County Cause No. S0900D020080125 The Honorable Michala M. Ruechel, Judge.
The Wood Law Office Show Low By Ronald D. Wood, Dirk Legate, Attorneys for Appellant.
Aspey, Watkins & Diesel, P.L.L.C. Flagstaff By Zachary J. Markham, Daniella M. Ferrari, Attorneys for Appellees.
DIANE M. JOHNSEN, Judge.
¶1 We address in this appeal a mother's petition to terminate a father's parental rights to their child based on abandonment. We hold that a parent who has persistently and substantially restricted the other parent's interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child. Accordingly, we reverse the superior court's judgment of termination.
FACTS AND PROCEDURAL BACKGROUND
¶2 Calvin B. and Brittany B. were married in October 2006, and their son was born in December 2007. In February 2008, Brittany petitioned for divorce; the court entered a dissolution decree three months later. The decree adopted the parties' agreement granting Brittany sole legal and physical custody of the child and allowed Calvin "liberal visitation as his schedule allows, " to occur at Brittany's residence or in her presence. The decree also provided that Calvin would "not be required to pay child support, but nevertheless shall provide financial assistance to the child as required by [Brittany]."
¶3 In July 2009, Calvin filed a pro se petition for modification requesting joint custody, arguing that Brittany allowed him to see the child only "maybe twice a month for about twenty minutes." Ten days after receiving Calvin's petition for modification, Brittany filed a petition for an order of protection against Calvin. Her petition alleged that when she was pregnant with their son two years before, Calvin had slammed her against a wall and kicked her. She also alleged that since February 2009, Calvin "[h]as constantly threatened me" and "threatened to strangle [sic] in May of 2009." Following an ex parte hearing, the superior court granted Brittany's petition and entered an order of protection that barred Calvin from any contact with Brittany. The court ordered that Brittany's parents "shall be responsible for the arrangement of the father's parenting time, " and that Brittany's mother would supervise Calvin's parenting time.
¶4 Brittany responded to Calvin's petition for joint custody the same day she petitioned for the protective order. Her response argued the court should dismiss Calvin's petition because he had not completed a parenting education program as required by the dissolution decree. She also alleged Calvin had substance-abuse problems, had committed domestic violence against her, and had "severe anger control problems." Further, she alleged Calvin had failed to satisfy his obligation under the dissolution decree to hold her harmless from certain debts and had contributed only $600 in support of the child.
¶5 In August 2009, Calvin filed a "Plea for expedited hearing for child custody." He said he believed Brittany planned to move out of state with the child, thereby "interrupt[ing] the little time I get to spend with my son." Calvin's filing continued, "I see him once every two weeks for fifteen minutes. This is not enough for me or him."
¶6 After a hearing in November 2009, the court ordered Calvin to complete a parenting class and ruled that Brittany was not required to allow him visitation until he had done so. The court modified the original custody order to allow Calvin an overnight visit every other weekend and one weekday evening every two weeks. The order also required Calvin to pay $264 a month in child support and $1, 500 to cover half of the costs of a surgery for the child. Thereafter, however, Calvin did not pay any child support or any part of the surgery costs, and he did not complete the parenting class until February 2011. Nevertheless, despite Calvin's failures to pay support and to help fund the surgery, and despite his delay in taking the parenting class, when he asked to see his son, Brittany continued to allow him to visit with the child for 20 to 30 minutes at a time.
¶7 In May 2010, Brittany filed a second petition for an order of protection, alleging that Calvin used hard drugs "for quite some time" and had made numerous phone calls to her, "yelling cussing & threatening to strangle me." Her petition asked that the order include herself and her son as protected persons. She filed her petition in justice court, which issued the order she sought. A copy of the order is not in our record, but according to testimony before the superior court some time later, the justice court granted the order over Calvin's objection. The justice court advised Calvin that he could seek relief from the order in the superior court. Despite the order of protection, for the next several months, Brittany continued to allow Calvin to see their son: Brittany, her current husband and the boy would meet Calvin for 15 to 20 minutes at a time at a fast-food restaurant. Later, Brittany permitted Calvin to visit their son at her mother's home for 15 to 20 minutes at a time.
¶8 In about November 2010, however, Brittany ended the visits. Calvin tried to contact Brittany's mother to seek visitation, but she did not relay the messages to Brittany, and eventually blocked Calvin's phone calls. On two occasions, Calvin sent texts to Brittany to ask to see the boy, but Brittany called police both times, causing him to be twice arrested for violating the order of protection.
¶9 In March 2011, two months before the second order of protection was to expire, Brittany filed a petition for contempt and to terminate Calvin's parental rights based on abandonment. She alleged Calvin had failed to complete the parenting class and failed to pay child support and the $1, 500 for the surgery. Brittany also alleged Calvin had only "limited and sporadic contact" with their son and had "failed to have any meaningful contact with the child" since December 2009. In September 2011, before the court acted on Brittany's petition, Calvin filed a "Request for Temporary Orders" seeking parenting time. Calvin said Brittany had been allowing him parenting time "at [her] whim, " but that she had rejected "several overtures" seeking parenting time in the prior 90 days. He asked for a day a week of parenting time, offered to take a drug test and agreed that his parents or grandparents could supervise his parenting time.
¶10 In response, Brittany moved to strike Calvin's request for temporary orders, asserting that given her pending petition for termination, any determination of visitation "must await the Court's decision" on her petition for termination. After the superior court told the parties at a status conference in November 2011 that existing visitation orders remained in effect pending a ruling on the termination petition, Calvin filed a "Petition for Contempt and to Enforce Parenting Time." He asserted he had "repeatedly asked for parenting time" and had agreed to "have it under ...