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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 ...


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