Gabriel G. v. Dcs, E.L. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GABRIEL G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.L., Appellees.
No. 1 CA-JV 21-0232
FILED 1-13-2022
Appeal from the Superior Court in Maricopa County
No. JD38260
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
GABRIEL G. v. DCS, E.L.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Acting Presiding Judge Samuel A. Thumma and Judge Maurice Portley1
joined.
C A T T A N I, Chief Judge:
¶1 Gabriel G. (“Father”) appeals the superior court’s order
terminating his parental rights as to his son E.L. For reasons that follow,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 E.L. was born to Father and Irene L. (“Mother”) in February
2017. Within a few months, Mother left E.L. with Mother’s sister (“Aunt”)
while Mother was in and out of jail with substance-abuse issues. Aunt has
been E.L.’s primary caregiver since that time.
¶3 Aunt filed private guardianship proceedings in October 2017
and was appointed E.L.’s temporary guardian multiple times. Late in 2019,
Mother appeared and opposed the guardianship, prompting E.L.’s court-
appointed guardian ad litem to file a dependency petition. After an
investigation, the Department of Child Safety (“DCS”) substituted as
petitioner in the dependency. The superior court found E.L. dependent as
to Mother. Subsequently, DCS served Father by publication, and the court
found E.L. dependent as to Father.
¶4 After the court approved a severance and adoption case plan,
DCS moved to terminate Mother and Father’s parental rights. The court
granted the termination motion as to Mother in January 2021. That same
month, DCS’s renewed efforts to locate Father were successful, and he
appeared in the dependency proceeding in February 2021. Father
established paternity the next month.
¶5 Visitation between Father and E.L. was the parties’ primary
focus over the following months. Because E.L. did not know Father and
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2
GABRIEL G. v. DCS, E.L.
Decision of the Court
had previously experienced separation anxiety during visits with Mother,
a DCS psychologist recommended that visits be organized between Father
and Aunt directly, with Aunt remaining present throughout. DCS assigned
a family support partner to help Father and Aunt coordinate but otherwise
permitted Father and Aunt to set visits on their own schedules. Although
DCS did not set limits on the number of visits and Aunt offered him more
time, Father’s work schedule limited his availability. By the time of the
termination adjudication hearing in June 2021, Father had participated in
only four visits with E.L.
¶6 Father testified at the severance hearing. He described having
physical custody of E.L. for the first four months of E.L.’s life (the first half
of 2017), after which police required him to turn the child over to Mother
since he did not have custody orders. Father testified that he started
paperwork to file for custody but never completed the process because he
could not find Mother to serve her. He stated that he tried to get in touch
with Mother directly and through her family members, but they either
refused to provide information or blocked contact. Father was able to visit
E.L. at the maternal grandparents’ house a few times while Aunt was at
work, but E.L. subsequently moved. Father testified that it seemed that
Mother’s family was trying to keep him out of E.L.’s life.
¶7 Father testified that his recent visits with E.L. had been going
well but that Aunt only allowed visits on Sundays and had blocked some
of his requests for contact. Father said he would visit every day if allowed,
and although he acknowledged that his work schedule made weekday
visits problematic, he testified that he could visit E.L. weekday evenings
and both weekend days if permitted. Father noted that, although Aunt had
said he could call E.L. between visits, Aunt did not respond to his texts.
¶8 Aunt testified that E.L. had lived with her his whole life and
had never lived with Father. She denied knowing who E.L.’s father was
until Father established paternity after the dependency was filed and just a
few months before trial. Aunt testified that Father was still standoffish
during his weekly visits with E.L., and she described offering Father visits
with E.L. any time he wanted, even every day. She said that Father was
only available on Sundays, however, because of his work schedule. Aunt
also stated that she sent Father photos and videos of E.L. and offered to
allow Father to call E.L. between visits. Aunt testified that she never tried
to prevent Father from having a relationship with E.L.
¶9 The superior court terminated Father’s parental rights,
finding that Father had abandoned E.L. and that severance would be in
3
GABRIEL G. v. DCS, E.L.
Decision of the Court
E.L.’s best interests—expressly crediting Aunt’s testimony over Father’s
contrary testimony. Father timely appealed, and we have jurisdiction
under A.R.S. § 8-235(A).
DISCUSSION
¶10 The superior court is authorized to terminate a parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review a severance ruling for
an abuse of discretion, deferring to the superior court’s credibility
determinations and resolution of conflicting facts. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶11 Abandonment, one of the statutory grounds for severance,
A.R.S. § 8-533(B)(1), is defined as:
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). Abandonment is assessed objectively based on the
parent’s conduct, not subjective intent. See Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249–50, ¶ 18 (2000). Accordingly, when faced with
obstacles to a continuing parental relationship, a parent must “act
persistently” to establish or develop the relationship, including by
“vigorously” asserting the parent’s rights. Id. at 250–51, ¶¶ 22, 25. We have
also recognized, however, that “a parent who has persistently and
substantially restricted the other parent’s interaction with their child may
not prove abandonment based on evidence that the other has had only
limited involvement with the child.” Calvin B. v. Brittany B., 232 Ariz. 292,
293–94, ¶ 1 (App. 2013).
¶12 Father argues that the superior court erred by finding
abandonment because Mother and her family interfered with his efforts to
maintain a relationship with E.L. First, Father asserts that the court
wrongly minimized the ways Mother’s family—and Aunt in particular—
4
GABRIEL G. v. DCS, E.L.
Decision of the Court
restricted his access to E.L. Father acknowledges that he had limited contact
with E.L. over the years but attributes this to Mother’s family concealing
the child from him despite his repeated requests. But the superior court
found that Father’s claim that maternal relatives blocked access was not
credible, and we defer to that court’s credibility assessment. See Jesus M.,
203 Ariz. at 282, ¶ 12. Moreover, even assuming Mother’s relatives were
less than forthcoming with information about E.L., Father did little else to
“vigorously assert” his parental rights. See Calvin B., 232 Ariz. at 298, ¶ 29
(quoting Michael J., 196 Ariz. at 250, ¶ 22). As he acknowledged at trial, he
never followed through with filing a family court case to establish paternity
and parenting time, and he never sought outside assistance to recover his
child.
¶13 Father next asserts that the court’s finding that he made
“minimal efforts, at best,” to protect E.L. from Mother’s substance abuse
was not supported by the evidence because (1) in the absence of custody
orders, the police forced him to turn E.L. over to Mother, and (2) E.L. lived
with Aunt, not Mother, and thus was not at risk of Mother’s neglect. But
the former simply highlights that Father did not follow through with legal
action to establish paternity and formally establish his parental rights,
including legal decision-making and parenting time. And although the
latter point might undercut severance on a different statutory ground such
as neglect, see A.R.S. § 8-533(B)(2), it does not excuse Father’s failure to
maintain a normal parent–child relationship, which underpins the finding
of abandonment, see A.R.S. § 8-531(1).
¶14 Father further asserts that the court’s finding that he was
offered (but failed to take advantage of) “significant visitation
opportunities” was clearly erroneous. He notes that DCS did not offer
visitation until after he established paternity and an in-house psychologist
assessed the proper method for visits given E.L.’s separation anxiety, and
that thereafter, his case manager never explained that he could see E.L.
every day. But the visits were coordinated directly between Aunt and
Father. Aunt testified that she told Father he could see E.L. anytime (and
would have set more visits at Father’s request), but Father only scheduled
visits for Sundays because of his work schedule. To be sure, Father testified
that Aunt limited visits to Sundays only and that he would have visited
every day if allowed, but the superior court resolved this evidentiary
conflict against him, and we do not reweigh the evidence on appeal. See
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018). Although
Father argues that the court should not have found Aunt’s testimony
credible, the superior court was free to do so—especially given other
5
GABRIEL G. v. DCS, E.L.
Decision of the Court
corroborating evidence—and we defer to that assessment. See Jesus M., 203
Ariz. at 282, ¶ 12.
¶15 Finally, Father challenges the court’s best-interests
determination, arguing that if the abandonment finding was improper, the
court should not have reached the issue of best interests. See Alma S., 245
Ariz. at 149–50, ¶ 8 (describing the “two-step inquiry” under § 8-533(B) as
entailing first a finding of grounds for termination before assessment of
whether termination is in the child’s best interests). Because the superior
court properly found abandonment had been proven, however, Father’s
best-interests argument fails.
CONCLUSION
¶16 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6