Demetrice H. v. Dcs, D.H. ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DEMETRICE H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.H., Appellees.
No. 1 CA-JV 20-0246
FILED 5-27-2021
Appeal from the Superior Court in Maricopa County
No. JD 37064
The Honorable Lori H. Bustamante, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric Devany
Counsel for Appellee
DEMETRICE H. v. DCS, D.H.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Demetrice H. (“Father”) appeals the termination of his
parental rights to Damien1 based on both the abandonment and length-of-
incarceration grounds. See A.R.S. § 8-533(B)(1), (4). Father also asks that he
be permitted to appeal the denial of his motion to place Damien in the
physical custody of paternal grandmother (“Grandmother”). Father has
shown no error. We affirm the severance. Having affirmed the severance,
Father lacks standing to appeal the child’s placement.
BACKGROUND
¶2 Father and Kiana R. (“Mother”) are the biological parents of
Damien, born in 2013. Mother also has four more children (“Siblings”), born
between 2015 and 2020.2
¶3 Mother initially took care of Damien after she and Father
broke up in 2015. Father then took physical custody of him near the end of
2015, but he sent him back to live with Mother in 2017. Shortly after, Father
was arrested and charged with various counts of robbery. Father was
incarcerated in Maricopa County Jail from May 2017 to May 2018. After
pleading guilty, he was sentenced to a term of five years’ imprisonment.
Father’s expected release date is in August 2021.
¶4 Following a domestic violence incident while in Mother’s care
in 2019, DCS took Damien and two of his Siblings into temporary physical
custody, placing them in licensed foster homes. Shortly after, the superior
court found Damien dependent regarding Father based on neglect and
regarding Mother on abuse and neglect grounds. Family reunification was
the case plan for both parents.
¶5 In May 2019, Grandmother expressed interest in being
Damien’s out-of-home placement but failed to begin the evaluation process.
1 A pseudonym is used to protect the child’s identity.
2 Neither Mother nor the other fathers are party to this appeal.
2
DEMETRICE H. v. DCS, D.H.
Decision of the Court
Two months later, she contacted DCS to request visits with Damien but
confirmed she did not want to be his placement. Over six months later,
Grandmother then asked to be Damien’s placement. DCS denied her
request because she could not meet Damien’s behavioral health needs and
had physical limitations which hampered her from caring for a young child.
¶6 In January 2020, the superior court changed the case plan to
severance and adoption. At that time, Mother continued to ignore the safety
concerns that brought Damien into out-of-home care, could not provide
Damien a safe and stable home, and could not provide for his basic needs
in the foreseeable future. Father likewise could not provide for the child
because he was in prison. DCS moved to terminate Mother’s rights to
Damien based on the nine-months in an out-of-home placement grounds
under A.R.S. § 8-533(B)(8)(a) and (b). DCS moved to terminate Father’s
parental rights based on the abandonment and length-of-incarceration
grounds. See A.R.S. § 8-533(B)(1), (4).
¶7 In July 2020, Father filed a motion to place Damien in
Grandmother’s physical custody. DCS objected, arguing it would not be in
Damien’s best interests. After a contested termination hearing, the superior
court terminated Father’s parental rights to Damien based on abandonment
and length-of-incarceration and Mother’s rights to Damien and three of his
Siblings based on the length of time the children had been in out-of-home
placement. See A.R.S. § 8-533(B)(1), (4), (8)(a). The court also denied Father’s
motion for change in Damien’s custody. Father now appeals.
DISCUSSION
¶8 Parents have a “fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). That
right, however, is not absolute. Relevant here, the superior court may
terminate a parent’s rights if it finds by clear and convincing evidence that
a parent has abandoned his child. A.R.S. § 8-533(B)(1). “[A] decision that
must be based on clear and convincing evidence will be affirmed ‘unless we
must say as a matter of law that no one could reasonably find the evidence
to be clear and convincing.’” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz.
92, 94, ¶ 7 (App. 2009) (citation omitted).
I. Abandonment
¶9 Father argues the superior court erred by finding he
abandoned Damien. He asserts that he had a relationship with Damien
before his incarceration and suggests he maintained that relationship while
3
DEMETRICE H. v. DCS, D.H.
Decision of the Court
in custody. To support his position, Father invites us to reweigh the
evidence regarding his efforts to maintain his relationship with his son.
However, the superior court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).
We will not reweigh the evidence. See Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81, ¶ 13 (App. 2005).
¶10 As defined by statute
“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). “[A]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct: the statute asks 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.” Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249–50, ¶ 18 (2000). “What constitutes reasonable
support, regular contact, and normal supervision varies from case to case.”
Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 96 (1994). We
“view the evidence and reasonable inferences to be drawn from it in the
light most favorable to sustaining the court’s decision.” Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (2009) (citations omitted).
¶11 At the time of the contested termination hearing, Father had
been in jail or prison for approximately half of Damien’s life. Although
imprisonment does not establish abandonment per se, it is a “factor to be
considered in evaluating the father’s ability to perform parental
obligations.” Pima Cnty. Juv. Action No. S–624, 126 Ariz. 488, 490 (App.
1980). When “circumstances prevent the . . . father 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.” S-114487, 179 Ariz. at 97.
¶12 The superior court found that “[Father] failed to undertake
any of the myriad of responsibilities associated with parenting due[,] in
4
DEMETRICE H. v. DCS, D.H.
Decision of the Court
part, to his incarceration and has relied upon others to parent the child. The
court also found that Father “had minimal to no contact with the child since
the inception of the dependency and has not furthered any sort of emotional
bond with the child during his incarceration.” Based on these findings, the
court held that Father abandoned Damien. Clear and convincing evidence
in the record supports the court’s conclusion.
¶13 Father was incarcerated in the Maricopa County Jail from
May 2017 to May 2018. Father testified that, during that year, he never
wrote to Damien and spoke to him on the phone fewer than five times. After
pleading guilty in May 2018, Father was sentenced to prison. DCS reported
that Father was initially hesitant to remain in contact with Damien because
he denied he was Damien’s father. The record shows that Father did not
want photos of or mail contact with Damien until the end of May 2019. A
DCS specialist testified that Father only wrote to Damien once prior to the
termination trial. Father had no in-person contact with Damien during his
incarceration, never sent Damien financial gifts or support, and only
resumed telephonic visits with him in the latter part of 2019.
¶14 Father asserts his lack of contact with Damien was justifiable
because it was, in part, due to his inability to purchase envelopes and
stamps before he could get a job at the prison. Even if accepted as true, clear
and convincing evidence still supports the superior court’s conclusion that
Father abandoned Damien. Rather than “act[ing] persistently to establish
the relationship however possible,” S-114487, 179 Ariz. at 97, Father
rejected DCS’s offer to send him photos of Damien before May 2019, did
not request visitation with Damien between February and August of 2019,
and only wrote to Damien one time after securing a job at the prison.
Further, “in deciding whether a parent has abandoned a child as defined in
§ 8-531(1), a court should consider each of the stated factors—whether a
parent has provided ‘reasonable support,’ ‘maintain[ed] regular contact
with the child’ and provided ‘normal supervision.’” Kenneth B. v. Tina B.,
226 Ariz. 33, 37, ¶ 18 (App. 2010) (citing A.R.S. § 8-531(1)). The record,
including Father’s own testimony, shows that Father has failed to fulfill any
of these responsibilities since the beginning of his incarceration in 2017.
¶15 Father also argues the superior court erred in finding he
abandoned his son because, prior to his incarceration, he parented Damien.
However, the superior court based its decision on Father’s conduct during
the term of his incarceration and the duration of Damien’s dependency, all
of which took place after Damien left Father’s custody. Substantial evidence
supports the court’s abandonment finding.
5
DEMETRICE H. v. DCS, D.H.
Decision of the Court
II. Length of Incarceration
¶16 Father argues that insufficient evidence was presented to
support the superior court’s termination of his parental rights to Damien
based on the length-of-incarceration grounds under A.R.S. § 8-533(B)(4).
Because we affirm the court’s termination order based on abandonment, we
need not consider whether the court’s findings justified termination on
other grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3
(App. 2002).
III. Best Interests
¶17 Father claims there is insufficient evidence to support the
superior court’s best-interests finding. Father also asserts that severance is
not in Damien’s best interests because he loves Damien, parented him
before his incarceration, wants to parent him upon his release, and because
the current adoptive placement separates Damien from three of his Siblings.
¶18 To sever parental rights after finding that a parent has
abandoned his child, the superior court must determine by a
preponderance of the evidence that severance is in the child’s best interests.
Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 227, ¶ 12 (2020). “[A]
determination of the child’s best interest must include a finding as to how
the child would benefit from a severance or be harmed by the continuation
of the relationship.” Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 5
(1990) (emphasis in original). “The ‘child’s interest in stability and security’
must be the court’s primary concern.” Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 150, ¶ 12 (2018) (citation omitted). We will affirm the termination
of parental rights unless it is clearly erroneous. Jesus M., 203 Ariz. at 280,
¶ 4. A ruling is clearly erroneous if it is unsupported by substantial
evidence. Desiree S. v. Dep’t of Child Safety, 235 Ariz. 532, 534, ¶ 7 (App.
2014).
¶19 Here, the record supports the superior court’s finding that
terminating Father’s parental rights is in Damien’s best interests. At the
time of the termination hearing, Damien had been in an adoptive placement
with one of the Siblings for more than a year. Although two of the Siblings
were in a different placement, both placements were committed to
maintaining contact between the children. Additionally, Damien’s
placement was attuned to and able to meet his special needs.
¶20 At that hearing, DCS opined that terminating Father’s
parental rights would free Damien for adoption, giving him permanency
and stability. Adoption would also provide him a home without physical
6
DEMETRICE H. v. DCS, D.H.
Decision of the Court
abuse, substance abuse, and domestic violence—with a caregiver who
would meet his needs. The superior court found that Damien’s current
placement is meeting his needs and intends to adopt him, which would
provide stability and permanency. The court also found that Damien’s
prospective adoption is legally possible and likely. In contrast, the court
also found that Father is “incapable of providing a normal life for [Damien]
due to [his] incarceration.” “When a current placement meets the child’s
needs and the child’s prospective adoption is otherwise legally possible and
likely, a [superior] court may find that termination of parental rights, so as
to permit adoption, is in the child’s best interests.” Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 4, ¶ 12 (2016). We affirm.
IV. Grandmother’s Physical Custody
¶21 Having affirmed the superior court’s termination of Father’s
parental rights, he lacks standing to challenge Damien’s placement. See
Sands v. Sands, 157 Ariz. 322, 324 (App. 1988) (“It is clear that once the order
of severance was issued, the father’s standing as a parent terminated.”);
Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 370–71, ¶ 2 (App. 2009)
(“[O]nce [the father’s] parental rights were terminated, he no longer had
standing to challenge [the child’s] placement and anticipated adoption.”).
A termination order “divest[s] the parent and the child of all legal rights,
privileges, duties and obligations with respect to each other except the right
of the child to inherit and support from the parent.” A.R.S. § 8-539. Because
we affirm the termination of Father’s parental rights, Father lacks standing
to appeal the denial of his motion to change Damien’s physical custody.
CONCLUSION
¶22 We affirm the superior court’s termination of Father’s
parental rights to Damien. We deny Father’s request to appeal the denial of
his motion to change Damien’s physical custody.
AMY M. WOOD • Clerk of the Court
FILED: AA
7