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Pedro G. v. Arizona Department of Economic

Court of Appeals of Arizona, First Division, Department S

October 10, 2013

PEDRO G. Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC, SECURITY, A.R., A.R., Appellees.

Not for Publication -103(G) Ariz.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

Appeal from the Superior Court in Maricopa County Cause No. JS12259 The Honorable Jay R. Adelman, Judge

Denise L. Carroll Scottsdale Attorney for Appellant.

Thomas C. Horne, Arizona Attorney General Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellees

MEMORANDUM DECISION

DIANE M. JOHNSEN, CHIEF JUDGE.

¶1 Pedro G. ("Father") appeals the superior court's order terminating his parental rights to his two children. We accept the confession of error by the petitioner, the Arizona Department of Economic Security ("ADES"), and reverse the order of termination.

¶2 Father is incarcerated and last saw his children in person two years ago. While in prison, however, he has maintained regular contact with his children, calling them once or twice a week and sending them letters, cards and artwork. The superior court terminated his parental rights on the ground of abandonment, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B) (1) (2013) .[1] The statute defines abandonment to mean

the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child.

A.R.S. § 8-531(1) (2013).

¶3 Our supreme court has held that "abandonment is measured not by a parent's subjective intent, but by the parent's conduct." Michael J. v. Ariz. Dep't of Econ. Sec, 196 Ariz. 246, 249, 18, 995 P.2d 682, 685 (2000). ADES confesses error, acknowledging the record demonstrates that Father "supervised and regularly contacted the children, " and that although he "did not financially support the children while in prison, the abandonment ground cannot stand alone on that fact." See Pima County Severance Action No. S-1607, 147 Ariz. 237, 239, 709 P.2d 871, 873 (1985).

¶4 We agree the record does not contain evidence sufficient to support a finding by clear and convincing evidence that Father abandoned his children pursuant to A.R.S. § 8-533(B)(1). See Michael J., 196 Ariz. at 249, 995 P.2d at 685 (clear and convincing evidence required to support termination of parental rights).

¶5 Accordingly, we reverse the superior court's order.[2]

CONCURRING: MARGARET H. DOWNIE, JUDGE, KENT E. CATTANI, JUDGE.


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