Jeremy v. v. Judith H., K.V. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JEREMY V., Appellant,
v.
JUDITH H., K.V., Appellees.
No. 1 CA-JV 14-0274
FILED 4-12-2016
Appeal from the Superior Court in Maricopa County
No. JS506983
The Honorable Janice K. Crawford, Judge
VACATED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Ellsworth Family Law, P.C., Mesa
By Glenn D. Halterman
Counsel for Appellee Judith H.
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
JEREMY V. v. JUDITH H., K.V.
Decision of the Court
J O N E S, Judge:
¶1 Jeremy V. (Father) appeals from the juvenile court’s order
severing his parental rights to K.V. (Child) following a severance petition
filed by Judith H. (Mother). For the following reasons, we vacate the
severance order.
FACTS1 AND PROCEDURAL HISTORY
¶2 Father and Mother are the biological parents of Child, born in
2005. Father and Mother divorced in January 2009, and Mother was
granted sole legal decision-making authority and primary physical custody
of Child. The family court awarded Father regular parenting time and
ordered he pay child support. Father paid child support until he was laid
off in March 2009 and could no longer make the support payments. That
same month, the court accepted a stipulation to increase Father’s parenting
time and reduce his child support to zero. Father then went on vacation to
the United Kingdom for two weeks, where he met a woman who would
later become his wife.
¶3 In December 2009, Father returned to the United Kingdom on
a six-month visa to be with his fiancé. During this time, Father maintained
regular telephone contact with Child. Father traveled back to Arizona in
June 2010 to get married. On this trip, he exercised three days of parenting
time with Child. Mother refused his request for additional time, even
though Father would have limited time in the United States and Child was
with Mother full-time otherwise. He then returned to the United Kingdom
where he lived until August 2013, with the exception of a short trip to the
United States in 2012. Throughout the time Father was out of the country,
he spoke with Child on the phone each week, and in April 2012, the family
court amended the parenting time order to reflect the parties’ agreement
that Father would be allowed telephonic contact with Child three days per
week.
¶4 In July 2010, the family court again ordered Father to pay
child support. He made his first payment in September 2012, which
quashed an arrest warrant issued for failure to comply with the court’s
order to pay the obligation. He did not make any other child support
1 We view the facts in the light most favorable to upholding the
juvenile court’s order. Maricopa Cnty. Juv. Action No. JD-5312, 178 Ariz. 372,
376 (App. 1994).
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JEREMY V. v. JUDITH H., K.V.
Decision of the Court
payments until 2014 when he began receiving social security disability
benefits, a portion of which was garnished to pay his arrearages.
¶5 In the interim, Mother petitioned the juvenile court for
termination of Father’s parental rights, once in September 2011 and again
in May 2012; both petitions were denied. But, in December 2012, the
juvenile court modified the parenting time order to require any visitation
or contact between Father and Child be done in accordance with the
recommendations of a therapist. The family court dismissed Father’s
subsequent petition for a modification of parenting time and Mother’s
request for appointment of a reunification therapist and ordered Father to
re-petition the court when he returned to live in the United States
permanently.
¶6 In August 2013, Father returned to the United States. He did
not immediately re-petition for a modification of parenting time but
continued to telephone Child approximately three times per week. In
February 2014, Mother filed a third petition to terminate Father’s parental
rights on the ground of abandonment. After an evidentiary hearing in
September 2014, the juvenile court concluded Father had abandoned Child
and that severance was in Child’s best interests. Father timely appealed.
¶7 On review, this Court, relying in large part upon the
principles set forth in Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21 (App. 2014),
determined Mother failed to prove severance was in Child’s best interests
and issued a memorandum decision vacating the juvenile court’s severance
order. See Jeremy V. v. Judith H., 1 CA-JV 14-0274, 2015 WL 3819129, at *5,
¶¶ 18-19 (Ariz. App. June 18, 2015) (mem. decision). Mother petitioned for
review, and our supreme court vacated the decision and remanded the case
back to this Court for reconsideration in light of its recent opinion,
Demetrius L. v. Joshlynn F., 239 Ariz. 1 (2016), which addressed the best
interests analysis as articulated in Jose M. Upon reconsideration, having
given full consideration to Demetrius L., and having reevaluated the case on
appeal, we again vacate the severance order.
DISCUSSION
¶8 A parent’s rights to a child may be terminated if the juvenile
court finds by clear and convincing evidence that “the parent has
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JEREMY V. v. JUDITH H., K.V.
Decision of the Court
abandoned the child.” Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(1);2 Ariz. R.P. Juv.
Ct. 66(C). Abandonment is defined as:
[T]he 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). Father argues the juvenile court erred in finding Mother
proved abandonment by clear and convincing evidence. On review, we
accept the court’s factual findings unless they are clearly erroneous but
review the interpretation and application of statutes de novo. Michael M. v.
Ariz. Dep’t of Econ. Sec., 217 Ariz. 230, 233, ¶ 10 (App. 2007) (citing Ariz. Dep’t
of Econ. Sec. v. Superior Court, 186 Ariz. 405, 408 (App. 1996), and Pima Cnty.
Juv. Dependency Action No. 118537, 185 Ariz. 77, 79 (App. 1994)).
¶9 When interpreting a statute, we give words “their natural,
obvious, and ordinary meaning.” Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 33 (1998)
(citing Cnty. of Apache v. Sw. Lumber Mills, Inc., 92 Ariz. 323, 327 (1962)); see
also A.R.S. § 1-213 (“Words and phrases shall be construed according to the
common and approved use of the language.”). Under A.R.S. § 8-531(1), a
parent abandons his child when he fails “to provide reasonable support and
to maintain regular contact with the child.” (Emphasis added); see also
Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 18 (App. 2010) (directing the juvenile
court to “consider each of the stated factors — whether a parent has
provided ‘reasonable support,’ ‘maintained regular contact with the child’
and provided ‘normal supervision’”). The plain language of the statute
requires the absence of both “reasonable support” and “regular contact” to
sustain a finding of abandonment. See A.R.S. § 8-531(1); Bither v. Country
Mut. Ins., 226 Ariz. 198, 200, ¶ 10 (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.’”) (quoting Ring v. Taylor, 141
Ariz. 56, 70 (App. 1984)); de la Cruz v. State, 192 Ariz. 122, 125, ¶ 11 (App.
1998) (stating the use of the conjunction “and” between two words in a
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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Decision of the Court
statute “requires the interpretation of the two words in combination,
defeating the . . . argument that they operate in the disjunctive”).
¶10 Using this analysis, we have previously held that failure to
provide support is, alone, insufficient to establish abandonment. See Calvin
B. v. Brittany B., 232 Ariz. 292, 296, ¶ 20 (App. 2013); Yuma Cnty. Juv. Court
Action No. J-87-119, 161 Ariz. 537, 539 (App. 1989) (citing Maricopa Cnty. Juv.
Action No. JS-3594, 133 Ariz. 582, 586 (App. 1982)). And, our supreme court
has interpreted a prior statute authorizing adoption of a child without a
parent’s consent where the parent “willfully deserted and neglected to
provide proper care and maintenance for the child” to require proof of both
the “proper care” and “maintenance” elements. Shumway v. Farley, 68 Ariz.
159, 165 (1949) (interpreting Ariz. Code Ann. of 1939 § 27-204). Thus, A.R.S.
§ 8-531(1) dictates that abandonment be based upon findings that a parent
has failed to both provide reasonable support and maintain regular contact
with the child. In the absence of specific findings satisfying the objective
statutory requisites, the juvenile court would be left to terminate a parent’s
rights based solely upon subjective findings concerning the “normalcy” of
the parent-child relationship.
¶11 “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). Amongst its specific factual
findings, the juvenile court here found Father telephoned Child
approximately three times per week. Although the court minimized these
efforts and it certainly appears Father could have done more to provide
support and supervision to Child, telephone contact three times a week
with Child must be considered “regular contact” within any meaning of the
phrase. See Merriam-Webster Online Dictionary, http://www.merriam-
webster.com (21 March 2016) (defining “regular” as “happening over and
over again at the same time or in the same way”); cf. Lake Havasu City v.
Ariz. Dep’t of Health Servs., 202 Ariz. 549, 554 (App. 2002) (concluding the
appellant’s daycare programs occurred on a “regular basis” within the
meaning of A.R.S. § 36-881(2) where they were “offered for five weeks
during the same hours on a recurring basis according to a pre-established
schedule”).
¶12 Not only did the juvenile court make an affirmative finding
that Father contacted Child three times per week, Mother acknowledges
this fact and does not assert otherwise on appeal, arguing only that Father
failed to provide reasonable support to Child and failed to maintain a
normal relationship with the Child. In addition, Father’s contact with Child
was subject to recommendations of a therapist, but the family court had
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Decision of the Court
denied appointment of a therapist and directed Father not to re-petition the
court until he returned to the United States permanently. Despite this
confusion, Father continued to make the contact that was available to him,
and called Child regularly. Accordingly, Mother failed to prove severance
was warranted on the basis of abandonment, and the court erred as a matter
of law in terminating Father’s parental rights on that basis.3
CONCLUSION
¶13 Under the plain language of A.R.S. § 8-531(1), two elements
must be found to sever on the grounds of abandonment. The juvenile court
must find the parent accused of abandonment: (1) did not provide
reasonable support to the child, and (2) did not maintain regular contact
with the child. Mother does not argue and the court did not find Father
failed to maintain regular contact with Child. Accordingly, we vacate the
order terminating Father’s parental rights.
:ama
3 Because we find Mother failed to prove the statutory grounds for
severance by clear and convincing evidence, we need not and do not re-
address whether the juvenile court abused its discretion in concluding
severance was in Child’s best interests. See Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 551-52, ¶ 21 (App. 2010) (citing Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990)).
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