Michael B. v. Maria S., G.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHAEL B., Appellant,
v.
MARIA S., G.B., Appellees.
No. 1 CA-JV 21-0261
FILED 1-25-2022
Appeal from the Superior Court in Mohave County
No. L8015SV202107004
The Honorable Steven C. Moss, Judge
AFFIRMED
COUNSEL
Aspey Watkins & Diesel PLLC, Flagstaff
By Michael J. Wozniak
Counsel for Appellant
Law Offices of Heather C. Wellborn PC, Lake Havasu City
By Heather C. Wellborn, Alyssa N. Oubre
Counsel for Appellee
MICHAEL B. v. MARIA S., G.B.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
B A I L E Y, Judge:
¶1 Michael B. (“Father”) appeals the termination of his parental
rights to G.B. (“the child”). Father argues the court (1) violated his
procedural due process rights by not allowing him time to object before
signing the termination order and by not appointing counsel for the child,
(2) erred in finding abandonment, and (3) erred when it found that
severance was in the child’s best interests. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Maria Shivone (“Mother”) are the unmarried
biological parents of the child, who was born in 2012. In 2019, the parties
became involved in a family court matter, Mohave County Superior Court
case number DO-2019-07166, which led to a July 2020 court order adopting
a stipulated agreement for (1) joint legal decision-making, with Mother
having final decision-making authority; (2) shared parenting time, with
Mother having primary physical custody; and (3) Father paying monthly
child support. Father’s parenting time was made contingent upon
numerous requirements, including providing Mother updated contact
information. However, Father did not provide this information as agreed
upon.
¶3 In March 2021, Mother filed a petition to terminate Father’s
parental relationship with the child based on abandonment. The court
granted Mother’s motion for the appointment of a court-approved
investigator to complete a social study in the matter.
¶4 In May 2021, the court granted Mother’s motion for leave to
serve Father by publication after Mother avowed that she did not have a
current address for Father and that he did not return her calls and emails.
See generally Ariz. R. Civ. P. 4.1(l). The court further ordered Mother to send
copies of all pleadings to Father’s last known mail and email addresses. On
May 27, 2021, and June 29, 2021, Mother filed affidavits of service by email
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Decision of the Court
and first-class mail, and on July 20, 2021, Mother filed an affidavit of proof
of service by publication.
¶5 On July 28, 2021, the court held a telephonic evidentiary
hearing on Mother’s petition. Mother appeared at the hearing, but Father
did not. After hearing testimony and receiving into evidence various
exhibits from Mother, including the social study, the court found that
service was complete, and Father was deemed to have admitted the
allegations in the petition. The court granted Mother’s petition to sever
Father’s parenting rights on the ground of abandonment. 1
¶6 We have jurisdiction over Father’s timely appeal under
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
(“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
I. Standard of Review and Applicable Law
¶7 To sever a parent-child relationship, the superior court must
find by clear and convincing evidence at least one of the statutory grounds
set forth in A.R.S. § 8-533(B) and must find by a preponderance of the
evidence that severance is in the child’s best interests. Raymond F. v. Ariz.
Dep’t of Econ. Sec., 224 Ariz. 373, 376-77, ¶¶ 14-15 (App. 2010).
¶8 The superior court is in the best position to weigh the
evidence, observe the parties, judge witnesses’ credibility, and resolve
disputed facts, Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009), and we will not reweigh the evidence or redetermine
credibility, see Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151-52, ¶¶ 18-19
(2018). Instead, we view the evidence and reasonable inferences to be
drawn therefrom in the light most favorable to affirming and will not
reverse unless no reasonable evidence supports the court’s factual findings.
Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)
(citations omitted).
II. Procedural Due Process
¶9 In support of his argument to set aside the severance, Father
argues the court violated his procedural due process rights by not giving
1 The court also affirmed that termination of Father’s parental rights
did not relieve him of his obligation to pay child support in DO-2019-07166.
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Decision of the Court
him time to object before signing the termination order and by not
appointing counsel for the child.
¶10 The superior court may terminate parental rights by default if
a parent fails to appear without good cause at an initial hearing, pretrial
conference, status conference, or termination adjudication hearing.
Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 56-57, ¶ 16 (2017) (citing
Ariz. R.P. Juv. Ct. (“Rule”) 64(C)). To show good cause for setting aside the
termination of a parent-child relationship, “the moving party must show
that (1) mistake, inadvertence, surprise or excusable neglect exists and (2) a
meritorious defense to the claims exists.” Christy A. v. Ariz. Dep’t of Econ.
Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007) (citing Richas v. Superior Court, 133
Ariz. 512, 514 (1982); Ariz. R. Civ. P. 60(c)). “Excusable neglect exists if the
neglect or inadvertence ‘is such as might be the act of a reasonably prudent
person in the same circumstances.’” Id. (quoting Ulibarri v. Gerstenberger,
178 Ariz. 151, 163 (App. 1993)). “A meritorious defense must be established
by facts and cannot be established through conclusions, assumptions or
affidavits based on other than personal knowledge.” Id. at 304-05, ¶ 16
(quoting Richas, 133 Ariz. at 517).
¶11 At the severance hearing, the court found that legal service
had been properly accomplished by publication and through alternative
means, by directing the filings and orders to Father by email and first-class
mail. The record supports the court’s findings.
¶12 Father argues for the first time on appeal, however, that
because the court signed the order severing his parental rights the same day
as the termination hearing, the court deprived him of the opportunity to at
least preserve an objection and attempt to meet the two-pronged “good
cause” test. He maintains that we “should not prejudice [Father] for the
lack of a record demonstrating why he was not present at the hearing and,
instead, should remand the matter so [Father] can provide such objection.”
¶13 Father does not explain, however, why, although he received
the court’s termination order and was able to obtain an attorney and file a
timely appeal within fifteen days, see Ariz. R.P. Juv. Ct. 104(A), he did not
participate in the social study, file any responsive pleading prior to
severance, or appear at the initial severance hearing and did not file any
post-trial motions, including a motion to set aside the judgment for good
cause, before filing his appeal. Father does not show that anything
prevented him from attempting to demonstrate the two-pronged “good
cause” test in the superior court, and he makes no offer of proof in this court
as to why he did not attend the initial severance hearing or what evidence
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Decision of the Court
he would have presented in the superior court. Instead, he asks us to
presume without a factual basis both that (1) mistake, inadvertence,
surprise, or excusable neglect exists and (2) a meritorious defense to
Mother’s claim of abandonment exists. See id. at 304, ¶ 16. As Richas and
Christy A. make clear, however, mere presumptions or assumptions are
insufficient to establish a meritorious defense. See Richas, 133 Ariz. at 517;
Christy A., 217 Ariz. at 304-05, ¶ 16.
¶14 Father also argues for the first time on appeal that the superior
court violated the child’s procedural due process rights (and by proxy, his
procedural due process rights) by failing to appoint counsel to represent
the child before the initial termination hearing. Even assuming the court
was required to appoint an attorney for the child, and its failure to do so
was error, see generally Ariz. R.P. Juv. Ct. 64(E), 65(C)(2), Father has waived
this argument, see Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452,
¶ 21 (App. 2007). Moreover, even absent waiver, Father makes no
argument on appeal that he could not have raised this issue before or at the
initial termination hearing, and he does not show or even plausibly suggest
any prejudice from the court’s failure to appoint an attorney. In fact, he
concedes that the record does not reflect that he suffered any prejudice due
to the denial of counsel for the child. And Rule 65(C)(5)(a) provides that if
a parent denies or does not contest the allegations in the petition to
terminate parental rights, “the court shall proceed with the termination
hearing and enter findings and orders, pursuant to Rule 66.” In this case,
the court did just that, and we are unpersuaded by Father’s argument that
we should “infer that a best interests attorney may have provided the court
with information contrary to [Mother’s] testimony and the conclusion
drawn in the social study.” Father’s argument again fails because it relies
on mere speculation. See Richas, 133 Ariz. at 517; Christy A., 217 Ariz. at 304-
05, ¶ 16. 2
III. Termination Pursuant to A.R.S. § 8-533(B)(1)
¶15 Father next argues that insufficient evidence supports
termination of his parental rights based on abandonment. We review
2 Father also suggests “appointed counsel may have attempted to
contact [Father’s] former counsel in the corresponding family court matter
as an additional effort to provide actual notice to [Father] of the petition for
termination.” Mother’s counsel avows that she did contact Father’s former
counsel, who advised her that he had not had contact with Father in months
and had no more recent contact information.
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Decision of the Court
whether substantial evidence supports the court’s decision. See Pima Cnty.
Juv. Action No. S-949, 134 Ariz. 442, 443 (App. 1982).
¶16 Under A.R.S. § 8-533(B)(1), the superior court may terminate
parental rights based on proof of abandonment:
“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). Abandonment is measured by conduct, not subjective
intent. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18 (2000).
¶17 Here, the court found by clear and convincing evidence that
Father had “abandoned the child and failed to maintain a normal parental
relationship with the child without just cause as defined by A.R.S. § 8-531(1)
and pursuant to A.R.S. § 8-533(B)(1) for more than six (6) months.” In
support of its finding, the court cited the sporadic contact between Father
and the child, including a complete lack of in-person contact since 2019;
Father’s failure to provide consistent support; Father’s failure “to provide
any normal parental supervision” or significantly engage with the child;
and a lack of development of a parent-child relationship that should exist
between Father and the child.
¶18 The court’s findings are supported by Mother’s testimony
that (1) Father only spoke to the child telephonically approximately three
times each in 2019 and 2020 and once in 2021, and (2) Father and the child
last physically saw each other in December 2019. Mother also testified that
on the rare occasions when Father did contact the child, Father would make
“false promises” to the child about seeing him but then never followed up.
Further, Father never sought information regarding the child’s health,
school issues, or extracurricular activities, never reimbursed Mother for any
of the associated costs, and according to Mother, failed to maintain any
“normal parent-child relationship.” Mother did note that Father had sent
presents to the child on a couple of occasions and had made one payment
through the child support Clearinghouse since 2019, but he had otherwise
failed to make payments and had evaded providing contact information in
an apparent effort to thwart efforts to collect child support arrearages.
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Decision of the Court
¶19 Father contends the court should have more fully considered
his conduct as outlined in the social study and his assertion of parental
rights in the family court matter. But the social study largely supports the
court’s determination as well, and Father’s argument is really a request that
we reweigh the evidence, something we may not do. See Alma S., 245 Ariz.
at 151, ¶ 19. On this record, the court did not err in severing Father’s
parental rights on the ground of abandonment.
IV. The Child’s Best Interests
¶20 Father also argues that the court erred in finding that
termination of his parental rights was in the child’s best interests.
¶21 Termination may be in a child’s best interests if the child will
benefit from termination or if the child will face harm if the relationship
continues. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). In making
the determination, the court evaluates the totality of circumstances at the
time of trial, considering factors such as the bond between the natural
parent and the child, any risk for abuse or neglect if the relationship is not
terminated, and the negative effect on a child of the continued presence of
a statutory severance ground. Alma S., 245 Ariz. at 150-51, ¶ 13; Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶¶ 10-12 (App. 2016).
¶22 Here, the superior court found the child would benefit from
termination based in part on Mother’s testimony that Father had
abandoned and neglected the child through his “verging on nonexistent,
extremely minimal contacts with [the child].” Mother noted that although
the child was generally “doing great” both in school and extracurricular
activities, she was concerned for the child’s mental and emotional health
given the distress she observed in the child when Father failed to follow
through on promises and consistently failed to engage with the child. The
court also considered the social study, which concluded that termination
was in the child’s best interests because Father’s “lack of follow through as
a parent, along with his broken promises[,] have been emotionally difficult
for [the child],” and Father “does not see the [e]ffects that his lack of
parental responsibility has had on [the child].” The court concluded the
social study supported Mother’s testimony that a continued relationship
between Father and the child “would only further the continued harm and
disappointment and loss and emotional turmoil that [the child] would
suffer due to [F]ather’s neglect and nonengagement.” The court’s best
interests finding is supported by substantial evidence.
V. Attorneys’ Fees and Costs on Appeal
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Decision of the Court
¶23 Mother requests attorneys’ fees on appeal under A.R.S. § 25-
324 and costs under A.R.S. § 12-342. Section 25-324 applies to family court
proceedings commenced under chapters three and four of A.R.S. Title 25.
See A.R.S. § 25-324(A). This is a severance action commenced under A.R.S.
§ 8-533. Moreover, even were we to assume arguendo that § 25-324 applies,
Mother has not shown that any substantial difference exists in the parties’
financial resources or that Father has been unreasonable in the positions he
has taken on appeal. Accordingly, we decline Mother’s request for
attorneys’ fees. We award taxable costs on appeal to Mother upon
compliance with Rule 21, ARCAP.
CONCLUSION
¶24 The superior court’s order terminating Father’s parental
rights to the child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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