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Angel S. v. Department of Child Safety

Court of Appeals of Arizona, First Division

March 31, 2015

ANGEL S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, [1] A.S., Appellee

Page 579

Appeal from the Superior Court in Maricopa County. No. JD20967. The Honorable Joan M. Sinclair, Judge.

Maricopa County Public Advocate, Mesa, By Suzanne W. Sanchez, Counsel for Appellant.

Arizona Attorney General's Office, Phoenix, By Michael Valenzuela, Counsel for Appellee.

The Stavris Law Firm PLLC, Scottsdale, By Alison Stavris, Guardian Ad Litem for Child.

Judge Kenton D. Jones delivered the opinion of the Court, in which Presiding Judge Jon W. Thompson joined. Chief Judge Diane M. Johnsen dissented.

OPINION

Page 580

JONES, Judge

[¶1] Angel S. (Father) appeals the trial court's order terminating his parental rights to A.S. (Child) on grounds of abandonment and time in out-of-home care. As we find the trial court did not abuse its discretion, we affirm.

FACTS[2] AND PROCEDURAL HISTORY

[¶2] Father and Rena A. (Mother)[3] are the unmarried, natural parents of Child, born in July 2009. At the time of Child's birth, Father was incarcerated in California. Upon Father's release in December 2009, Father, Mother, and Child lived together in Arizona for approximately six months before returning to California. After residing in California for approximately six months, Mother began traveling back and forth between Arizona and California with Child, while Father remained in California. From early 2011, Mother and Child stayed with Child's maternal grandparents (Grandparents) in Arizona.

[¶3] In June 2011, DCS was contacted after an incident involving Mother at Grandparents' home. As a result, DCS placed the Child in Grandparents' care under a safety plan. In October 2011, DCS filed a dependency petition, alleging Father had neglected and abandoned Child. Thereafter, pursuant to a mediation agreement entered into by Father, the trial court found Child dependent as to Father and ordered a case plan of family reunification concurrent with severance and adoption. As part of the agreement, Father was allowed telephone contact with Child and offered supervised visitation

Page 581

with Child in Phoenix. He was also asked to complete parenting classes, substance abuse treatment, and take a " rule out" drug test in California. Father successfully completed these services, sent financial support to Grandparents monthly, and made weekly or biweekly telephone calls to Child. Father did not, however, personally visit Child in Arizona.

[¶4] Instead, Father sought to have Child, and the case, transferred to California because he was undocumented and concerned about Arizona's strict immigration laws. Toward that end, DCS completed two separate Interstate Compact on the Placement of Children (ICPC) requests for an inspection of Father's home and assessment of his parenting skills for a possible placement of Child with him in California. The first request was made in November 2012, but was denied because Father had moved from the address provided in the ICPC request to a different county in California without notifying DCS or the California ICPC agency. DCS attempted to contact Father to obtain his new California address, but was unable to do so until the next scheduled court proceeding. Once Father's new address had been obtained, DCS submitted a second ICPC request in April 2013, which was also denied because Father had by then moved to Arizona in May 2013, again without notifying DCS.

[¶5] In March 2013, two months before Father moved to Arizona, Child's guardian ad litem (GAL) filed a motion to terminate Father and Mother's parental rights. The motion alleged two grounds for termination as to Father: (1) Father had abandoned Child; and (2) Child had been in an out-of-home placement for more than nine months, and Father had substantially neglected or refused to remedy the circumstances causing Child to be in the out-of-home placement. Child's GAL later amended the severance motion to add a third ground for termination as to Father: (3) Child had been in an out-of-home placement for a period of at least fifteen months and Father had failed to remedy the circumstances leading to Child's out-of-home placement. The motion further alleged severance would be in Child's best interests. Both DCS and the Arizona Supreme Court Foster Care Review Board supported the severance motion.

[¶6] With Father's move to Arizona in May 2013, DCS again offered him visitation with Child. Initially, Father visited with Child two times per week for two hours per visit. Although self-employed, Father then requested this initial, minimal visitation schedule be amended to accommodate his work schedule. First, he sought to have the number of visits reduced to one visit per week, albeit for the full four hours. He then asked it be reduced to one visit per week for two hours, effectively reducing his already minimal visitation by half.[4]

[¶7] By all accounts, the visits went well, although on a couple of occasions Child wanted to end a visit early. Despite mostly appropriate interaction between Father and Child, DCS noted that Child did not demonstrate a strong parent-child bond with Father. As a result, a bonding and best interest assessment was conducted in November 2013, in which Father, Child, Child's half-sister (who also lived with Grandparents), and Grandparents participated.

[¶8] In early 2014, the contested severance adjudication was held. Father testified he had secured housing and intended to remain in Arizona. He also testified about his desire to have Child live with him full-time, and that he was prepared to handle his parenting responsibilities.

[¶9] The psychologist who conducted the bonding and best interest assessment testified Father and Child were fond of each other and enjoyed their time together. However, Child, in a playful, good-natured manner, dominated the interaction and bossed Father around. The psychologist concluded Child had " an affinity" for Father akin to a favorite teacher, scout leader, cousin or babysitter. The psychologist explained her use of the word " affinity," stating:

Page 582

[A]ffinity differs from attachment in that when . . . your needs need to be met, for instance, if you're ill or frightened as a child or in need of some type of secure reinforcement, you're going to leave your favorite playmate and return to your parent shelter. And so what it means is that the degree of bondedness, an attachment, in an affinity situation is not as deeply developed and does not address the child's needs for security as it . . . would if they were more deeply attached.

[¶10] The DCS case manager likewise testified Father had failed to maintain a normal parental relationship with Child because he did not personally visit Child for at least the nearly two-year period between when Child came into DCS's care until Father moved to Arizona in May 2013. She specifically noted that Father's weekly phone calls did not preserve a normal parental relationship because of their short duration caused by Child's young age and the language barrier between them.[5]

[¶11] Based upon the testimony presented, the trial court determined Child's GAL had proven two of the three statutory grounds for termination alleged in her severance motion -- abandonment and out-of-home placement for a period of at least fifteen months -- and found termination would be in Child's best interests. Accordingly, the trial court terminated Father's parental rights to Child. Father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235(A),[6] 12-120.21(A)(1), and -2101(A)(1).

STANDARD OF REVIEW

[¶12] We review the trial court's termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (citing Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996)). " The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (citing Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987)). Accordingly, we " accept the [trial] court's findings of fact unless no reasonable evidence supports those findings," and will affirm the court's ruling unless it is clearly erroneous. Id. (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000), and Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997)).

DISCUSSION

[¶13] To terminate a parent's rights, the trial court must find clear and convincing evidence to support at least one statutory ground for termination. Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685; A.R.S. § 8-533(B). The trial court must also find, by a preponderance of the evidence, that termination would be in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005); A.R.S. § 8-533(B).

I. Abandonment Finding

[¶14] Father argues insufficient evidence supports the trial court's finding of abandonment. In application of A.R.S. § 8-533(B)(1), a parent's rights may be terminated if " the parent has abandoned the child." Abandonment is defined as:

[T]he failure 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. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment.

A.R.S. § 8-531(1).

[¶15] Whether a parent has abandoned a child " is measured not by a parent's

Page 583

subjective intent, but by the parent's conduct." Michael J., 196 Ariz. at 249, ¶ 18, 995 P.2d at 685. The court must consider whether a parent " has provided reasonable support, maintained regular contact, made more than minimal efforts to support and communicate with the child, and maintained a normal parental relationship." Id. at 249-50, ¶ 18, 995 P.2d at 685-86; see also A.R.S. § 8-531(1). The trial court examines these factors in light of the circumstances of the particular case. Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 19, 243 P.3d 636, 640 (App. 2010) (citing Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 96, 876 P.2d 1121, 1131 (1994)).

[¶16] If no relationship exists between a parent and child, the parent must " act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary." S-114487, 179 Ariz. at 97, 876 P.2d at 1132 (citing In re Raquel Marie X, 76 N.Y.2d 387, 559 N.E.2d 418, 428, 559 N.Y.S.2d 855 (N.Y. 1990)); see also Michael J., 196 Ariz. at 251, 995 P.2d at 687 (" The burden to act as a parent rests with the parent, who should assert his legal rights at the first and every opportunity." ) (citing S-114487, 179 Ariz. at 98, 876 P.2d at 1133). Otherwise, the child " languishes in limbo," " unclaimed by the [parent], bonding with others" and is ultimately deprived of " the essential goal: prompt finality that protects the child's interests." [7] S-114487, 179 Ariz. at 97, 876 P.2d at 1132 (citing Lehr v. Robertson, 463 U.S. 248, 266, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). Where " only minimal efforts to support and communicate with the child" are made, the court may conclude the child has been abandoned. Kenneth B., 226 Ariz. at 37, ¶ 18, 243 P.3d at 640 (citing A.R.S. § 8-531(1)).

A. Prima Facie Evidence of Abandonment

[¶17] In concluding Father failed to sufficiently assert his legal rights as a parent, the trial court explained:

Father has sent money to the maternal grandparents and called the child. After moving to Arizona, he has regularly visited the child. The child has been in [DCS] custody since October 2011. From that time until May 2013 Father did not visit the child. . . . The Child is now over [4.5] years old and has only lived with his Father for a period of months when he was an infant. The Court is aware of the services Father participated in when he was living in California, and Father's actions since moving to Arizona. He is trying to establish a bond with the child. Father never filed for custody and he never physically visited the child for years at a time. The law requires that parents vigorously assert their parental rights. While he has made some efforts, the Court does not believe that Father has vigorously asserted his rights in this case. There is not a normal parent child relationship between Father and child. He has not provided any normal parental supervision of the child.

The trial court further found that " Father never explained why he did not move to Arizona or at least visit the child in Arizona earlier." [8]

Page 584

[¶18] Although the trial court did not make an express finding of " prima facie evidence" of abandonment in its severance order,[9] the absence of an express finding on a particular element is not fatal to the court's termination order. Rather, " we will presume that the juvenile court made every finding necessary to support the severance order if reasonable evidence supports the order." Mary Lou C., 207 Ariz. at 50, ¶ 17, 83 P.3d at 50 (citing Pima Cnty. Severance Action No. S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985)). " If the juvenile court fails to expressly make a necessary finding, we may examine the record to determine whether the facts support that implicit finding." Id. (citing Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App. 1989)).

[¶19] Here, the trial court specifically found Father and Child did not have a normal parent-child relationship, Father had not personally visited Child from October 2011 until May 2013 -- a period far greater than the statutorily-required six-month period -- and Father failed to explain why he had not visited Child in Arizona or on the occasion Child was in California. These findings, when considered in toto, equate to a determination that prima facie evidence of abandonment was presented to the court. Although it would have been more straightforward had the trial court parroted the language of the prima facie evidence of abandonment portion of the statute within its order, it is clear the court based its determination upon a finding that Father had " [f]ail[ed] to maintain a normal parental relationship with [Child] without just cause for a period [greater than] six months." A.R.S. § 8-531(1).

B. Reasonable Evidence Supports the Trial Court's Finding of Abandonment.

[¶20] Father resided with Child from the time Child was five months old until Child was approximately one and a half years old. After that, Mother took Child to reside in Arizona with Grandparents in early 2011. For the next half year, Father neither attempted to visit Child, nor initiated any legal proceedings to establish custody of or visitation with Child. Then, when Child was taken into DCS's custody, Father simply remained in California. At no point before the filing of the severance motion did Father visit Child in Arizona, despite knowing where Child was placed and DCS urging him to do so. Nor did Father visit Child when Child was available to him in California.

[¶21] Although Father expressed concern about visiting Child in Arizona based upon his undocumented status, a parent's immigration status does not amount to just cause for failing to personally visit a child or otherwise acting to establish a normal parent-child relationship. See Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 333, ¶ 40, 152 P.3d 1209, 1216 (App. 2007) (noting " a parent's illegal status may cause or contribute to the existence of [a statutorily enumerated] basis" for severance). Moreover, Father did not undertake any meaningful action so that the case or Child could be transferred to California; his relocations and lack of communication with DCS defeated any chance for the ICPC home studies to be completed, and thereby precluded placement or personal contact with Child in California during the dependency. Moreover, Father never undertook legal action to gain custody

Page 585

of Child or secure visitation after Mother moved to Arizona with Child in early 2011.

[¶22] In addition, as documented within a DCS report, when Grandparents invited Father to visit with Child in California during a vacation initiated by Grandparents, Father declined the invitation. Stated otherwise, when Father's asserted premise for not visiting Child was stripped away and he was afforded the unobstructed opportunity to be with Child, he chose not to do so. Such a choice is not the action of a diligent parent, " assert[ing] his legal rights at the first and every opportunity." Michael J., 196 Ariz. at 251, ¶ 25, 995 P.2d at 687.

[¶23] The DCS case manager specifically opined that Father's minimal telephonic contact was not, alone, sufficient to maintain a normal parental relationship with Child. To be sure, young children, such as Child, " need[] personal contact with [a parent] to develop any meaningful relationship." Michael J., 196 Ariz. at 254, ¶ 44, 995 P.2d at 690 (Zlaket, J., concurring in part and dissenting in part). The bonding assessment supported this observation, likening Child's relationship with Father to that of a favorite teacher, scout leader, cousin, or babysitter. Based upon this evidence, the trial court reasonably concluded Father and Child did not have a normal parent-child relationship for a period greater than six months.

[¶24] Although Father eventually moved to Arizona and began regular visits with Child, he did not do so until two months after the severance motion was filed. By that time, Father's actions were too late. See Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 8, 804 P.2d 730, 737 (1990) (noting abandonment cannot be defeated " merely by post-petition attempts to reestablish a parental relationship" ); see also S-114487, 179 Ariz. at 98-99, 876 P.2d at 1133-34 (affirming conclusion that " father abandoned the child because he failed to promptly and persistently grasp the opportunity to develop a relationship with his child or assert his legal rights" by waiting until a severance petition was filed, instead finding the parent must " affirmatively act to establish his rights" ). To allow otherwise " would virtually eliminate any possibility of success for a petition in a contested termination action." JS-500274, 167 Ariz. at 8, 804 P.2d at 737 (citing Maricopa Cnty. Juv. Action No. JS-1363, 115 Ariz. 600, 601, 566 P.2d 1346, 1347 (App. 1997)).

[¶25] Ultimately, the testimony from both the psychologist and DCS case manager supported the trial court's finding that Father had " not provided any normal parental supervision of the child," and that Father and Child did not have a normal parent-child relationship. See Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 242, 756 P.2d 335, 339 (App. 1988) (affirming finding of abandonment where the father's efforts to develop and maintain a relationship with his child -- visiting him six times in three years -- failed to " demonstrate any participation by or presence" in the child's life).

C. Reasonable Evidence Does Not Support Father's Assertion that He Rebutted the Presumption of Abandonment.

[¶26] The trial court did not make a specific finding that Father provided reasonable support to, or maintained regular contact with, Child. These factors were subject to proof by Father to rebut the presumption of abandonment created by the trial court's implicit finding of prima facie evidence of abandonment. See A.R.S. § 8-531(1); Nolte v. Winstanley, 16 Ariz. 327, 332, 145 P. 246, 248 (1914) ( " 'A prima facie case is one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced on the other side.'" ) (quoting Gilpin v. Mo., K. & T. Ry., 197 Mo. 319, 94 S.W. 869, 871 (Mo. 1906)). Because finding in the affirmative on these factors would not support the severance order, we cannot presume their existence. Mary Lou C., 207 Ariz. at 50, ¶ 17, 83 P.3d at 50 (citing S-1607, 147 Ariz. at 238, 709 P.2d at 872). Indeed, the trial court explicitly found Father had not provided normal supervision to Child, indicating it considered the factors identified in A.R.S. § 8-531(1) and specifically declined to make an affirmative finding of either reasonable support or regular contact.

[¶27] Father argues he rebutted the presumption of abandonment through his phone calls and monthly payments, but the trial

Page 586

court's order of severance indicates otherwise, and the record, when viewed on appeal in the light most favorable to upholding the trial court's severance as we are obligated to do, Jordan C., 223 Ariz. at 93, ¶ 18, 219 P.3d at 303 (citing Jesus M., 203 Ariz. at 282, ¶ 13, 53 P.3d at 207), does not compel the reversal of the trial court's determination in that regard.

[¶28] While the payment of money by Father forms the centerpiece of the dissent, the trial court did not find that money was the answer to Father's lack of attention to Child, or that Father rebutted the presumption of abandonment simply through provision of a " regular" payment of money in an arbitrary sum. Once prima facie evidence of abandonment was presented, it became Father's burden to defeat the presumption. Nolte, 16 Ariz. at 332, 145 P. at 248. In order to do so, he was required to offer some evidence that the amount of support he provided was reasonable. Id. ; A.R.S. § 8-531(1). Here, it is unchallenged that Father provided $100 per month to Grandparents for Child's care. But, Father never even argued to the trial court that the amount he sent was reasonable, and did not present any evidence or testimony to establish that these " regular" payments equated to " reasonable support." Without, for instance, any evidence regarding Father's total monthly income, Child's financial needs, Grandparents' available monies or need for additional funds to care for Child, or even what Father's child support obligation might have otherwise been, Father did not provide any context upon which to evaluate the argument. See In re Silva's Estate, 105 Ariz. 243, 247, 462 P.2d 792, 796 (1969) (" Inferences made in a vacuum are not reasonable." ).

[¶29] Alternatively, Father could have rebutted the presumption of abandonment with evidence that he maintained regular contact with Child. See A.R.S. § 8-531(1). Once again, the trial court did not expressly find he had done so, and we cannot reasonably conclude Father's weekly or bi-weekly phone calls to Child constituted " regular contact" when it is understood that these phone calls lasted only a few seconds as a result of the language barrier and Child's young age, especially when coupled with his unexcused failure to make personal contact. Moreover, Father's contention that these calls were meant only as a " temporary measure" until he moved to Arizona, akin to arrangements made for families of deployed soldiers and court-ordered for families of divorce, and therefore constituted regular contact given the circumstances, is unavailing. Father's own actions belie his argument, as Father never told DCS, the trial court, or Grandparents he intended to move to Arizona at any specified time in the future or that the phone calls were meant as a stopgap until he was able to personally visit with Child. Rather, at the severance hearing, he specifically stated that the only reason he moved to Arizona was because he was informed he would lose the case if he did not. Father's testimony clearly indicates that had the severance motion not been filed, the status quo -- brief phone calls in lieu of personal contact -- would have continued, indefinitely, to define his relationship with Child. In addition, there is no evidence that Father sent gifts, cards, or letters or took any other action to help foster his relationship with Child.

[¶30] Moreover, the sole case relied upon by Father to demonstrate he adequately rebutted the presumption of abandonment, Maricopa County Juvenile Action No. JS-3594, 133 Ariz. 582, 653 P.2d 39 (App. 1982), is readily distinguishable. In JS-3594, the court found that a father's frequent attempts to communicate and send gifts to his two children, although sometimes unsuccessful, were sufficient to rebut the presumption of abandonment where the mother thwarted his ability to maintain a relationship by relocating with the children without advising of their new location. Id. at 586, 653 P.2d at 43. Unlike the father in JS-3594, who faithfully maintained the only contact he was allowed, Father here knew exactly where Child was residing and apparently made a volitional decision to limit his contact to brief telephone calls, even while Child was immediately available to Father in California.[10] He did so

Page 587

despite DCS's explicit direction that it was important he have personal contact with Child in order to form a parental bond, and in fact, no such bond was formed. Father did what he wished, on his own schedule, and to the detriment of his relationship with Child.

[¶31] We cannot conclude the trial court abused its discretion by finding Father's actions, when taken as a whole, failed to demonstrate he " vigorously asserted his rights in this case." Despite being repeatedly informed that personal visits were necessary to establish and foster a parental bond, Father was content remaining in California, allowing Grandparents to raise Child, and waiting to see if the case would ever come to him. Father needed to " affirmatively act to establish his rights," and could not simply wait until a termination petition was filed to initiate a relationship with Child. S-114487, 179 Ariz. at 99, 876 P.2d at 1134. " Whatever his subjective intent as to acting as a parent, his conduct speaks volumes." Michael J., 196 Ariz. at 251, ¶ 24, 995 P.2d at 687 . Father's actions are the embodiment of " minimal efforts to support and communicate" and support a finding of abandonment. Kenneth B., 226 Ariz. at 37, ¶ 18, 243 P.3d at 640 (citing A.R.S. § 8-531(1)).

[¶32] In sum, reasonable evidence presented at trial established Father failed to maintain a normal parental relationship with Child without just cause for a period of six months. Prima facie evidence of abandonment having been found by the trial court, Father failed to rebut the presumption of abandonment by presenting evidence that he provided reasonable support for Child or maintained regular contact. Accordingly, the record supports the trial court's determination that Father abandoned Child,[11] and we find no abuse of discretion in the termination of Father's parental rights on that statutory ground.

II. Best Interests Finding

[¶33] Father also argues the trial court erred by finding termination was in Child's best interests. Severance is in the child's best interests if it is proven, by a preponderance of the evidence, that the child would either benefit from the termination or be harmed by the continuation of the parent-child relationship. Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21, 316 P.3d 602, 606 (App. 2014) (citing Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018, and Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50). In determining whether the child would benefit, relevant factors to consider include " whether the current placement is meeting the child's needs," Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 350, ¶ 23, 312 P.3d 861, 866 (App. 2013) (citing Maricopa Cnty. Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994)), whether there is an adoption plan in place, and whether the child is adoptable. Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 (citing JS-500274, 167 Ariz. at 6, 804 P.2d at 735, and Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994)).

[¶34] The record supports the trial court's finding that termination was in Child's best interests. Child has lived with Grandparents since at least June 2011. Over that time, he formed a strong bond with Grandparents, and has grown especially close to his half-sister, who also lives with Grandparents and whom Grandparents previously adopted. Moreover, the DCS case manager testified Grandparents have been able to meet Child's needs and are willing to adopt him.

CONCLUSION

[¶35] For the foregoing reasons, we affirm the trial court's order terminating Father's parental rights to Child.

DISSENT

Page 588

JOHNSEN, Chief Judge, dissenting:

[¶36] I respectfully dissent. Our statutes allow a court to sever a parent's rights based on abandonment only on clear and convincing proof that the parent has both failed to provide reasonable support and failed to maintain regular contact with the child. Because the superior court here could not and did not find that Father failed to provide reasonable support for his son, the court erred by terminating Father's parental rights based on abandonment. In no other reported case has an Arizona court affirmed a finding of abandonment when the parent has provided reasonable support and maintained regular telephone contact with the child. In doing so here, the majority incorrectly applies a statutory presumption and engages in fact-finding not permitted on appeal.

FACTS AND PROCEDURAL BACKGROUND

[¶37] As the majority relates, Father was incarcerated when Child was born in July 2009. After Father was released five months later, he lived with Mother and Child for a year, first in Arizona, then in California. In early 2011, Mother and Child returned to Arizona to live with Mother's parents; Father remained in California. Father is undocumented. After having been deported once, he was reluctant to come to Arizona after passage of SB 1070 for fear of being deported again. Nevertheless, Father financially supported Child from California, sending $200 or $100 a month.

[¶38] Several months after Mother and Child moved to Arizona, DCS learned of an issue with Mother that prompted it to place Child in the care of the grandparents and file a dependency petition. Following a mediation, the court ordered Father to complete parenting classes, substance abuse assessment/treatment and a " rule out" drug test. As to visitation, the court-approved agreement provided, " Father can have phone contact with [Child]. Father can have a supervised visit with the child when he comes to Phoenix."

[¶39] Father completed each of the services DCS and the court directed him to perform. He found a parenting course in California and completed it, attending two classes a week for three months. He found a drug abuse course and completed it, attending two classes a week for seven months. He took the required drug test and tested negative. He also continued to provide financial support to Child, sending his monthly checks to the grandparents. And he telephoned the grandparents weekly or every other week to speak with Child.

[¶40] In a February 2013 report, the case manager expressed frustration that California authorities had been unable to inspect Father's home because he had moved, and noted that Father still had not come to Arizona to visit his son. Although the case manager continued to recommend reunification, after reviewing that report, the court approved the GAL's request to change the case plan to severance and adoption, and, on March 12, 2013, the GAL moved to terminate Father's rights. In May 2013, soon after Father learned of the motion to terminate, he moved to Phoenix and immediately began participating in weekly supervised visits with Child. At first, the visits were two hours, twice weekly; eventually, because of Father's work schedule, they were changed to once a week for four hours.[12] Father brought food and toys to the visits, which took place at a DCS office and a church. He asked for visits to take place at his Phoenix apartment, but that did not happen; DCS did not send someone to assess his residence. Between May 2013 and the start of trial, nine months later, Father missed only two visits. In addition

Page 589

to the scheduled visits, he attended a birthday party and other holiday gatherings with Child at the grandparents' home.

[¶41] After hearing testimony of Father, the case manager and a psychologist, the superior court granted the GAL's motion to terminate Father's rights based on two statutory grounds, abandonment and 15 months' time in care. See A.R.S. § 8-533(B)(1), (8)(c) (2014). On appeal, given that Father performed each of the services he was asked to perform, neither DCS nor the GAL argues we should affirm the termination order based on time-in-care; the only issue is whether Father abandoned Child pursuant to § 8-533(B)(1).

DISCUSSION

[¶42] In concluding that Father abandoned Child, the superior court acknowledged that Father had financially supported Child and participated in the required services. The court further commended Father's " actions since moving to Arizona" and found that he " is trying to establish a bond with the child." The court, however, emphasized that Father had not seen Child in person from the time Mother returned with Child to Arizona in 2011 until the motion for termination was filed in 2013. The court concluded:

Father never filed for custody and he never physically visited the child for years at a time. The law requires that parents vigorously assert their parental rights. While he has made some efforts, the Court does not believe that Father has vigorously asserted his rights in this case. There is not a normal parent child relationship between Father and child. He has not provided any normal parental supervision of the child.

As the majority states, we review the superior court's findings of fact for an abuse of discretion, ¶ 12, but we review de novo the court's application of the law, see Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 12, 243 P.3d 636, 639 (App. 2010).

[¶43] Under A.R.S. § 8-533(B)(1), a parent's rights may be terminated if " the parent has abandoned the child." The applicable " definitions" statute provides:

" Abandonment" means 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. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment.

A.R.S. § 8-531(1).[13]

[¶44] When we interpret a statute, we give the words " their natural, obvious, and ordinary meaning." Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 33, 957 P.2d 984, 993 (1998); see A.R.S. § 1-213 (" Words and phrases shall be construed according to the common and approved use of the language." ). If the meaning of a statute is clear, that meaning " controls unless an absurdity or constitutional violation results." Metzler v. BCI Coca-Cola Bottling Co., 235 Ariz. 141, 144, ¶ 13, 329 P.3d 1043, 1046 (2014) (quotation omitted).

[¶45] Under § 8-531(1), a parent abandons his child when he fails " to provide reasonable support and to maintain regular contact with the child." Construing the statute to give the language its ordinary meaning, it must mean that a finding of abandonment requires the absence of both " reasonable support" and " regular contact." See Bither v. Country Mut. Ins. Co., 226 Ariz. 198, 200, 245 P.3d 883, 885 (App. 2010) (" The word 'and' is a conjunction connecting words or phrases expressing the idea that the latter is to be added or taken along with the first." ) (quotation omitted); de la Cruz v. State, 192 Ariz. 122, 125, ¶ 11, 961 P.2d 1070, 1073 (App. 1998) (conjunction " and" between two words in a statute " requires the interpretation of the two words in combination, defeating the . . . argument that they operate in the disjunctive" ). Thus, if a parent has provided reasonable

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support or maintained regular contact with the child, the court may not sever his rights based on abandonment.

[¶46] This conclusion is consistent with longstanding case authority. Implicitly applying the same rule of construction, we have held that a failure to provide support, alone, is " not enough to establish abandonment." Yuma County Juv. Court Action No. J-87-119, 161 Ariz. 537, 539, 779 P.2d 1276, 1278 (App. 1989); Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 20, 304 P.3d 1115, 1119 (App. 2013). And in a like context, our supreme court similarly interpreted a prior statute that authorized the adoption of a child whose parent had " wilfully deserted and neglected to provide" for him. See Shumway v. Farley, 68 Ariz. 159, 165, 203 P.2d 507, 511 (1949). The statute at issue in that case allowed adoption of a child without a parent's consent upon proof that the parent had " wilfully deserted and neglected to provide proper care and maintenance for the child." Arizona Code Annotated of 1939 (" A.C.A." ), § 27-204; see also Shumway, 68 Ariz. at 166, 203 P.2d at 511.[14] The court granted relief to a biological parent who argued the law did not permit adoption upon proof of only one of the two elements. Id. at 165, 203 P.2d at 511 (" It is a well-established rule that a court may in the interpretation of statutes, where ambiguity exists or the statute can not otherwise be harmonized, give effect to the legislative intent by interchanging the words 'or' and 'and'. But we believe the intent of the legislature here is so clear and definite that there is no occasion to make such a substitution. We hold it to be the legislative intent that an adoptive petitioner under our law must establish both wilful desertion and neglect to provide." ) (internal citation omitted).

[¶47] Applying the definition of abandonment in § 8-531(1), there was no dispute at trial that Father provided regular financial support for Child, and neither DCS nor the GAL argued then or argues now that his monthly support checks were not " reasonable." Accordingly, because the superior court could not and did not find Father failed to provide reasonable support to his son, the court lacked the power under A.R.S. § 8-533(B)(1) to sever his parental rights based on abandonment.[15]

[¶48] In affirming the finding of abandonment, the majority takes an entirely different analytical course than the superior court, one neither DCS nor the GAL advocates on appeal. The majority presumes the superior court found Father failed without just cause " to maintain a normal parental relationship" with his son for six months, and holds the court impliedly concluded such a finding " constitutes prima facie evidence of abandonment" pursuant to § 8-531(1). The majority then affirms the order of termination based on its conclusion that Father failed to rebut the presumption of abandonment that followed from the prima facie evidence. ¶ ¶ 26-30 supra. In pursuing this analytical course, the majority misapplies the rules of evidentiary presumptions and exceeds the power of a reviewing court.

[¶49] " Prima facie evidence is not evidence at all but rather is a presumption of law that, in the absence of evidence to the contrary, allows the trier of fact to presume the existence of a fact based on proof of other facts." State ex rel. Horne v. AutoZone, Inc., 227 Ariz. 471, 479, ¶ 21, 258 P.3d 289, 297 (App. 2011), vacated in part, 229 Ariz. 358, 275 P.3d 1278 (2012). But the effect of such a presumption is limited: " Whenever evidence contradicting a legal pre-sumption [sic] is introduced the presumption vanishes." Silva v. Traver,

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63 Ariz. 364, 368, 162 P.2d 615, 617 (1945), overruled on other grounds, Reed v. Hinderland, 135 Ariz. 213, 660 P.2d 464 (1983); see Barlage v. Valentine, 210 Ariz. 270, 277, ¶ 27, 110 P.3d 371, 378 (App. 2005) (" Prima facie evidence of a particular fact raises a rebuttable presumption of, but does not conclusively establish, that fact." ); see also Ariz. R. Evid. 301 (" In a civil case, unless a statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally." ).

[¶50] Under these principles, the " prima facie evidence of abandonment" created by a finding that a parent has failed without just cause to maintain a normal parental relationship for six months " vanishes" when the parent offers evidence to rebut the statutory elements of abandonment. At that point, " even if the fact-finder might disbelieve the rebuttal evidence, the 'bubble is burst,' and the existence or non-existence of the presumed fact must be determined as if the presumption had never operated in the case." Golonka v. General Motors Corp., 204 Ariz. 575, 589, ¶ 48, 65 P.3d 956, 970 (App. 2003). There can be no doubt that Father's evidence operated to eliminate the presumption of abandonment. Beyond the evidence of his regular weekly visits with his son over the eight months after the GAL moved to terminate his rights, at the beginning of the dependency, Father showed he searched out for himself in California each of the various services that DCS ordered him to perform and complied with each of those requirements. He telephoned his son weekly and was learning to speak English so he could better communicate with his son. And he consistently sent $100 or $200 a month for the support of his child.

[¶51] Rather than recognize that this evidence rebutted any statutory presumption of abandonment, the majority inappropriately weighs the evidence and finds it wanting, concluding that Father did not prove " that money was the answer to [his] lack of attention to Child." ¶ 28 supra. With respect to the support component of § 8-531(1), the majority faults Father for failing to offer evidence of his income, the grandparents' resources, or what his " child support obligation might have otherwise been." But Father's evidence that he provided a not-insubstantial sum each month for the benefit of the child was enough to overcome his burden of going forward with the evidence. After that, the GAL had the burden of persuasion to prove Father had failed to provide reasonable support. All this is beside the point, of course, because there was no dispute at trial that Father had provided reasonable support for his son. Father testified he sent monthly checks, and neither the GAL nor DCS argued those payments fell short of reasonable support under the statute.[16]

[¶52] The majority acknowledges that in the alternative, Father " could have rebutted the presumption of abandonment with evidence that he maintained regular contact" with his son. ¶ 29 supra. Father offered such evidence when he testified he telephoned his son each week after Mother took the child to Arizona. The majority holds those calls were insufficient, given the child's age and the absence of in-person visits before May 2013.[17] But it is not our place as an appellate court to engage in such fact-finding. In reviewing whether a party has offered evidence to rebut a statutory presumption, we are not allowed to weigh that evidence. The majority does just that when it concludes that Father's weekly telephone calls to his son did not constitute " regular contact" under the circumstances.

[¶53] Because Father rebutted any legal presumption that might have applied, the

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GAL maintained the burden of persuasion on both elements of abandonment under A.R.S. § § 8-531(1) and -533(B)(1), namely, that Father failed both " to provide reasonable support and to maintain regular contact with the child." See Ariz. R. Evid. 301. Disregarding Father's regular support payments, the superior court improperly granted the severance motion because it concluded Father's weekly or bi-weekly telephone calls did not constitute " regular contact" or " normal supervision" of Child and that he lacked a " normal parental relationship" with his son.[18]

[¶54] By disregarding the statutory requirement that the parent has failed to provide reasonable support, the superior court grounded its abandonment order solely on its findings concerning " normality" in a parent-child relationship. Such findings are subjective conclusions fraught with ambiguity when, as here, they are entirely untethered to the two objective requirements of the statute. A child's best interests doubtless are served by regular and frequent in-person visits with a parent. It likewise goes without saying that in-person visits promote traditional views of " normal" parenting and " normal supervision" of a child. But when a parent regularly speaks to his child on the telephone and provides reasonable support, the statutes do not allow a court to terminate his rights for abandonment because it concludes that, despite those efforts, the parent's relationship with his child is not " normal."

[¶55] More broadly, the superior court and the majority err by grounding termination of Father's parental rights on their conclusion that he failed to " vigorously assert" his rights to Child. ¶ 31 supra. In the absence of clear and convincing evidence that a parent has both failed to provide reasonable support and to maintain regular contact with the child, the statutes do not allow termination for abandonment whenever a court may find that a parent has not " vigorously asserted" his or her parental rights. Our supreme court most recently used that phrase in Michael J. v. Ariz. Dep't of Econ. Sec., a case involving a parent who was incarcerated. 196 Ariz. at 247, 250, ¶ ¶ 3, 22, 995 P.2d at 683, 686. The court noted that " when 'circumstances prevent [a parent] from exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary.'" Id. at 250, ¶ 22, 995 P.2d at 686 (quoting Pima County Juv. Severance Action No. S-114487, 179 Ariz. 86, 97, 876 P.2d 1121, 1132 (1994)). The court affirmed the superior court's finding of abandonment in that case because, even though incarceration by itself would not justify severance for abandonment, the parent failed to take steps that were available to him to maintain a relationship with his child. Id. at 250-51, ¶ ¶ 22-26, 995 P.2d at 686-87.[19] By contrast to the parent in Michael J., however, Father took an active role in the dependency -- he participated in the court-sponsored mediation and, ordered to complete parenting and substance-abuse classes, he identified appropriate long-term courses available to him in California and completed them. He successfully completed the drug

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test he was directed to take. He telephoned his son weekly or bi-weekly and regularly sent money for his support.

[¶56] The majority also cites Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 242, 756 P.2d 335, 339 (App. 1988), in which this court affirmed a finding of abandonment when a father had visited his child six times in three years before severance. But by contrast to this case, the parent there provided no financial support for the child and utterly failed to perform any of the services the agency requested of him. Id. at 240, 242, 756 P.2d at 337, 339.

[¶57] Neither DCS, the GAL nor the majority cites any case affirming termination of a parent's rights based on abandonment in which a parent, like Father here, provided regular financial support and maintained regular telephone contact with his child. For the reasons stated above, in my view the superior court erred as a matter of law by granting the motion to sever Father's rights based on abandonment, given that the evidence before it demonstrated, among other things, that Father indisputably had provided reasonable support to Child.


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