Salvatore D. v. Whitney D., S.D. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SALVATORE D., Appellant,
v.
WHITNEY D., S.D., Appellees.
No. 1 CA-JV 17-0324
FILED 12-21-2017
Appeal from the Superior Court in Maricopa County
No. JS 517866
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Legal Defender, Phoenix
By Kathryn E. Harris
Counsel for Appellant
Brown, Naegle, Crider & Jensen, Mesa
By Kay A. Jones, Brad J. Crider
Counsel for Appellees
SALVATORE D. v. WHITNEY D., S.D.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
O R O Z C O, Judge:
¶1 Salvatore D. (Father) appeals an order terminating his
parental rights to S.D. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 S.D. was born to Whitney D. (Mother) and Father in
September 2009, in California. Shortly after S.D. was born, Father
committed an act of domestic violence against Mother and the couple
separated. In December 2011, Mother was granted sole legal and physical
custody and Father was permitted supervised visitation with S.D. twice
weekly. This order was based on a partial child custody investigation
wherein the investigator recommended that Mother retain sole legal and
physical custody and that Father’s visitation be supervised.
¶3 In 2013, Father was released from prison, and sought to
recommence visitation with S.D. The court ordered reunification
counseling, which was conducted in July. The clinical psychologist who
conducted the counseling noted that Father did not attend three out of eight
scheduled reunification sessions with S.D. Despite Father’s absences, the
psychologist observed that the two had successfully reunified. He warned,
however, that S.D. had a fragile psyche, was “susceptible to abandonment
issues,” and that Father had to be “consistent” and show up to every future
visit. Approximately three months later, Mother petitioned the court to
suspend the unsupervised visitation because Father was not spending his
visitation with S.D., which was distressing to S.D., and because Father’s
new wife had reported to Mother that Father had abused her. Mother
recalled that Father’s last visit with S.D. took place in January 2014.
1 The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
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SALVATORE D. v. WHITNEY D., S.D.
Decision of the Court
¶4 At the end of 2014, Father filed a contempt motion because
Mother was not complying with the visitation schedule. According to
Father, the court set a date for a mediation, but nothing ever happened
because Mother “went dark, she disappeared.” Mother acknowledged that
she moved to Arizona with her husband (Stepfather) and S.D. in November
2014. She conceded that she did not file anything in the California courts
before she relocated, but she left her father’s business address in California
as her forwarding address for mail.2
¶5 Father had no contact with Mother until she filed her Petition
for Termination of Parent-Child Relationship on October 16, 2015. The
superior court set the contested private severance hearing for September 1,
2016. The hearing was continued to January 4, 2017 following a substitution
of judge. On the morning the hearing was scheduled to begin, Father
moved to continue the hearing because he was incarcerated. The new
hearing date was set for April 10, 2017. On March 20, Mother disclosed a
severance social study. On the day of the hearing, Father moved to
continue, arguing he had just “recently been released from 180 days of
incarceration” and needed time to “gather his information and exhibits”
and refute the “allegations and statements as outlined in the home study.”
¶6 The superior court denied Father’s motion to continue and
proceeded with the hearing on April 10. Mother, Stepfather, the social
study author—Polly Thomas—and Father testified at the hearing.
Following the hearing, and after considering the testimony and exhibits, the
superior court granted the Petition for Termination of the Parent-Child
Relationship. Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
DISCUSSION
¶7 A court may terminate parental rights if it finds any of the
enumerated grounds in A.R.S. § 8-533(B) by clear and convincing evidence.
Kent K. v. Bobby M., 210 Ariz. 279, 280, ¶ 1 (2005). The court must also find
by a preponderance of the evidence that termination is in the child’s best
interests. Id. at 284, ¶ 22. We view the evidence in the light most favorable
to sustaining the court’s findings, Manuel M. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 205, 207, ¶ 2 (App. 2008), and we will not reverse an order terminating
parental rights unless the court’s factual findings are unsupported by any
reasonable evidence, Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377,
2 Mother’s address was protected by a criminal protective order
issued out of California.
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Decision of the Court
¶ 2 (App. 1998). “Motions to continue are addressed to the sound discretion
of the trial court and its decision will not be reversed absent a clear abuse
of discretion.” Yavapai Cty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App.
1988).
¶8 Father first argues that the superior court “deprived [him] of
his right to a fair trial” by denying his motion to continue. He contends that
the circumstances surrounding his “inability to procure his evidence prior
to the January 4, 2017, and April 10, 2017, trial dates were unforeseen and
unavoidable” and thus constituted extraordinary circumstances. We
disagree. As stated supra, the severance hearing was initially scheduled for
September 1, 2016. Father claims he was taken into custody approximately
one month after the first hearing date passed and he was not released until
a month-and-a-half before the continued severance hearing. When asked
why he did not procure or disclose any documents or witnesses prior to the
September 2016 hearing date, he answered, “I’m not sure, to be honest with
you. . . . I’m not sure on that.” We are also unpersuaded that Father’s
incarceration was “unforeseen and unavoidable” because he had been
incarcerated for the exact same probation violation—crossing state lines—
twice before.
¶9 Father also admitted that Thomas contacted him twice and on
neither occasion did he “provide her with any documentation in support”
of the testimony he offered at the hearing. When Father spoke to Thomas,
he said that his attorney would provide her with supporting
documentation, but Thomas testified that after two email exchanges with
his attorney, she received nothing. Father was thus given an opportunity
to refute the “allegations and statements as outlined in the home study”
and declined to do so. Moreover, Father had the opportunity to cross-
examine Thomas on the accuracy and partiality of her report and give his
own testimony to refute the allegations and recommendations, and he did
both. The superior court accordingly acted within its discretion in denying
Father’s motion to continue.
¶10 Father next argues that the superior court erred in finding that
he had not established just cause for failing to maintain contact with S.D.
for a period of six months. See A.R.S. §§ 8-531(1) (failing to maintain a
normal parental relationship without just cause for six months is prima
facie evidence of abandonment), -533(B)(1) (abandonment as one of the
enumerated termination grounds). He argues that Mother “absconded”
with S.D. to Arizona, interfered with his efforts to see S.D., and concealed
her whereabouts. Mother had a criminal protective order in place,
however, that made her address inaccessible to Father. “When
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SALVATORE D. v. WHITNEY D., S.D.
Decision of the Court
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.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 250, ¶ 22
(2000) (citation omitted). The record here does not demonstrate that Father
acted persistently or vigorously in attempting to maintain his relationship
with S.D.
¶11 First, Father admitted that he had not paid child support since
July 2014. He also acknowledged that he had not attempted to send any
gifts, cards, or letters to S.D. since October 2014. Second, although he claims
that, through his attorney, he undertook efforts to locate S.D. and exercise
his rights to visitation—filing “a motion,” sending a process server to
Mother’s last known workplace, mailing two “certified documents” to
Mother’s father’s business which were “returned to sender,” and hiring a
private investigator—he provided no evidence to support his claims.
Father also testified that he intended to produce two witnesses and emails
he asserted would demonstrate Mother’s malicious intent, but failed to
disclose or produce any witnesses or exhibits on his behalf at the hearing.
Third, Father admitted that the criminal protective order Mother had in
place against him did not prohibit him from filing legal documents
pertaining to his visitation with S.D. Aside from his own testimony, Father
produced nothing to support his assertions that he made a credible effort
to continue supporting S.D. and maintaining a relationship with her.
¶12 Finally, Father argues that the court erred in finding that
termination was in S.D.’s best interests. In finding that termination was in
S.D.’s best interests, the court relied on the written report and testimony of
Thomas and the observations of S.D.’s guardian ad litem, Ann Olson. Both
supported termination as being in S.D.’s best interests. Olson noted that
S.D. wants her last name to be the same as her other family members and
that “she very much so wants to be adopted.” See Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 2, ¶ 1 (2016) (“[I]n a private proceeding to sever parental
rights, just as in state-initiated proceedings, a juvenile court may conclude
that a proposed adoption benefits the child and supports a finding that
severance is in the child’s best interests.”). Thomas observed S.D. in the
home with Mother and Stepfather and testified that S.D. is a “very active,
articulate, bright, verbal child.” She opined that S.D. is “very bonded” to
Stepfather and she overheard S.D. “spontaneously refer to him as dad.”
Thomas believed the relationship between S.D. and Stepfather was
“positive” and “strong” and that Stepfather had “provided for her physical,
her emotional and her financial needs” as though she was “his own child.”
Stepfather testified that he wants to adopt S.D. and he has already taken
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Decision of the Court
steps toward adopting her. Reasonable evidence supports the court’s
finding that severance was in S.D.’s best interests.
CONCLUSION
¶13 For the foregoing reasons, we affirm the order terminating
Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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