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Antonio G. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department B

September 19, 2013

ANTONIO G., Appellant,

Not for Publication -103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP

Appeal from the Superior Court in Maricopa County Cause No. JD20642 The Honorable Joan M. Sinclair, Judge

Thomas C. Horne, Arizona Attorney General Phoenix By Michael Valenzuela, Assistant Attorney General Attorneys for Appellee.

Law Office of David M. Osterfeld Buckeye By David M. Osterfeld Attorneys for Appellant.



¶1 Antonio G. ("Father") appeals the juvenile court's order terminating his parental rights to J.G. ("Child"). Father argues the Arizona Department of Economic Services ("ADES") failed to prove he abandoned Child by clear and convincing evidence and the court erred in finding the severance was in Child's best interests. For the reasons set forth below, we affirm.

Facts and Procedural Background

¶2 Child, who was born August 12, 2009, is the biological child of Father and Hannah M. ("Mother") .[1] Mother and Child lived with Father for the first eight months of Child's life. Mother and Child moved out of Father's home in early 2010, and Father did not see Child again until January, 2013.

¶3 In the summer of 2011, Child Protective Services ("CPS") in Texas opened a case on Mother based on a report Mother and Child were homeless. Father, who was living in Texas at that time, was interviewed as part of the CPS investigation. Around the same time as the CPS investigation, Mother applied for nutritional assistance from the state of Texas. As a result of Mother's application for state benefits, Texas initiated child support proceedings against Father. The child support case led to Father's paternity of Child being established, and in September 2011 Father was ordered to pay child support for Child.

¶4 When Mother and Child moved to Arizona in August 2011, CPS in Maricopa County received a report that Mother had fled the state of Texas before completing her required substance abuse and mental-health treatment. CPS met with Mother and voiced concerns over her failure to complete treatment in Texas. Based on those concerns, CPS took Child into temporary physical custody.

¶5 ADES subsequently filed a petition alleging that Child was dependent. As to Father, the petition alleged that he had neglected Child by failing to provide for her basic needs and failing to protect her from Mother's substance abuse and mental illness. ADES was unable to locate Father and obtained leave of court to serve him by publication. On November 2, 2011, the juvenile court held Father's publication hearing and found service by publication complete. The juvenile court also determined that Father had failed to appear without good cause, found Child dependant as to Father, and approved family reunification as the case plan.

¶6 ADES finally located Father in March 2012 through a parent-locator service. Father received a phone call from the parent-locator service in March of 2012 advising him that there were proceedings in Arizona concerning Mother. Father told the parent-locator service that given the demands of his work schedule, he was too busy to speak with them about the case.

¶7 Shortly after ADES was notified of Father's location, a CPS case manager called Father and left him a voicemail. In the voicemail, the case manager advised Father that Child was in the custody of CPS in Arizona. However, Father did not contact CPS for approximately two months, and when he did, it was via email. Over the next six months Father did not speak with the case manager directly; instead, Father's mother contacted the case manager on his behalf about the dependency proceedings in Arizona. In her emails, Father's mother explained that Father was working and could not directly communicate with the case manager because of the noise at work. The case manager continued to try to contact Father directly by phone, but he did not respond.

¶8 In August 2012, Child's guardian ad litem asked the juvenile court at a Report and Review Hearing to change the case plan from reunification to severance and adoption due to Father's lack of participation. The juvenile court approved the change, and on September 6, 2012 the guardian ad litem filed a petition to sever Father's parental rights on the grounds of abandonment and nine months out-of-home placement. Arizona Revised Statute ("A.R.S.") ...

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