Jerome H. v. Dcs, J.H. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JEROME H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.H., Appellees.
No. 1 CA-JV 17-0314
FILED 12-7-2017
Appeal from the Superior Court in Maricopa County
No. JD 529797
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee, Department of Child Safety
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge James B. Morse Jr. joined.
JEROME H. v. DCS, J.H.
Decision of the Court
C A M P B E L L, Judge:
¶1 Jerome H. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his son, J.H.1 He challenges the juvenile
court’s findings of abandonment and nine- and fifteen-months out-of-home
placement under Arizona Revised Statutes (“A.R.S.”) sections 8-533(B)(1),
(B)(8)(a), and (B)(8)(c), respectively. Father also challenges the court’s
finding that termination was in the child’s best interests. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND2
¶2 Father and Kaleah M. (“Mother”) lived in California with the
child and Mother’s two other children. In August 2015, California Child
Protective Services (“CPS”) initiated an investigation to determine if Father
and Mother were neglecting the children. There were also allegations that
Father and Mother smoked marijuana and drank liquor in front of the
children. A month after the investigation was initiated, Mother moved the
children to Arizona. J.H was 9 months old when he arrived in Arizona.
¶3 In November 2015, Mother left the children in the care of their
maternal great aunt (“Aunt”). In March 2016, the Department of Child
Safety (“DCS”) initiated a dependency action, at the Aunt’s request,
alleging the parents were not providing the children support for their basic
needs. At the time, Father resided somewhere in California and did not
have any contact with his son. Although the child and his half-siblings were
initially placed with Aunt, DCS removed the children and placed them in
foster care due to allegations of sexual abuse by an adult in Aunt’s home.
¶4 DCS located Father in California and served him in July 2016
with notice of an October 6th dependency hearing. Father failed to appear,
and the court found the child dependent. While the dependency was
1The underlying dependency addressed three children. The juvenile
court terminated all biological parents’ rights to each child; however, this
appeal only addresses the termination of Father’s rights to his son, J.H.
Mother is not a party to this appeal.
2 We review the record in the light most favorable to sustaining the
juvenile court’s decision. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86,
93, ¶ 18 (App. 2009) (citation omitted).
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JEROME H. v. DCS, J.H.
Decision of the Court
ongoing, Father had no contact with the child and failed to provide the child
with support or participate in reunification services.
¶5 In January 2017, the court changed the case plan from
reunification to severance and adoption. DCS moved to sever Father’s
parental rights on two grounds: abandonment and nine-months out-of-
home placement.3 A.R.S. § 8-533(B)(1), (B)(8)(a). Father moved to Arizona
the same month. In February 2017, Father began supervised visits with the
child and began to participate in reunification services.
¶6 In June 2017, the juvenile court held a contested severance
hearing. The court found that Father abandoned the child and, despite his
recent participation in services, he had been unable to remedy the
circumstances that caused the child to be taken into DCS custody. Further,
the court found there was a substantial likelihood he would not be capable
of doing so in the near future. The court also found that termination of
Father’s parental rights was in the child’s best interests. The court then
terminated Father’s parental rights to the child.
DISCUSSION
I. Sufficient Evidence Supports Severance Based on Abandonment
¶7 Father argues the juvenile court erred in terminating his
parental rights on the abandonment ground because he did in fact maintain
a relationship with the child. Father also challenges the court’s ruling on the
nine- and fifteen-month out-of-home placement grounds.
¶8 A court may sever a parent’s rights to his or her child if it finds
by clear and convincing evidence one of the statutory grounds for severance
exists, and by a preponderance of the evidence that severance is in the
child’s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279,
281-82, 288, ¶¶ 7, 41 (2005). We review an order terminating parental rights
for an abuse of discretion and will affirm if the order is supported by
sufficient evidence in the record. Calvin B. v. Brittany B., 232 Ariz. 292, 296,
¶ 17 (App. 2013) (citation omitted). Because sufficient evidence in the record
supports termination based on abandonment, we need not address Father’s
contentions as to the other grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 3 (App. 2002) (if evidence supports termination on any
DCS later amended the motion to include the allegation of fifteen-
3
months out-of-home placement. See A.R.S. § 8-533(B)(8)(c).
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JEROME H. v. DCS, J.H.
Decision of the Court
one statutory ground, this court need not consider challenges to the other
grounds).
¶9 Section 8-533(B)(1) provides for the termination of parental
rights in the case of abandonment, which is “the failure of a parent to
provide reasonable support and to maintain regular contact with the child,
including providing normal supervision,” and “includes a judicial finding
that the parent has made only minimal efforts to support and communicate
with the child.” A.R.S. § 8-531(1). Abandonment is measured by a parent’s
conduct rather than a parent’s subjective intent. Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 18 (2000). When circumstances prevent a
parent from exercising traditional methods of bonding with a child, the
parent “must act persistently to establish the relationship however possible
and must vigorously assert his legal rights to the extent necessary.” Pima
Cty. Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994). “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), which is not “automatically . . . rebutted merely by post-petition
attempts to reestablish a parental relationship,” Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 8 (1990).
¶10 The record supports the juvenile court’s finding that Father
abandoned the child. The DCS case manager testified Father had not
parented the child since August 2015. While the child’s move to Arizona
may have prevented Father from traditionally bonding with the child,
Father had no relationship with the child and failed to provide the child any
support for approximately 17 months. See A.R.S. § 8-531(1). Moreover,
Father did not assert his legal rights or attempt to reestablish a relationship
with the child until after DCS moved to sever. Father’s late attempt does
not overcome the presumption that he previously abandoned the child for
17 months. See JS-500274, 167 Ariz. at 8.
¶11 While Father provided contradictory evidence, the juvenile
court did not find this evidence persuasive. The court gave “little weight”
to Father’s testimony based on conflicting evidence and inconsistencies in
that testimony. We will not disturb that finding. See Jesus M., 203 Ariz. at
280, ¶ 4 (the juvenile court is in the best position to judge the credibility of
witnesses and weigh the evidence); see also Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81, ¶ 13 (App. 2005) (reweighing evidence is not the
function of this court). Accordingly, on this record, the court did not err in
finding Father abandoned the child.
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JEROME H. v. DCS, J.H.
Decision of the Court
II. Severance is in the Child’s Best Interests
¶12 Father argues the juvenile court erred in finding termination
was in the child’s best interests because Father is “able to parent the child
by himself and can provide the child with a stable residence and [Father]
has stable income.” To establish that severance would be in the child’s best
interests, the court must find either that the child will benefit from
termination or that the child will be harmed by continuation of the parental
relationship. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App.
2004). To determine whether the child would benefit, the court should
consider relevant factors such as whether the current placement is meeting
the child’s needs, Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 107
(1994), whether the child is adoptable, and whether there is an adoption
plan in place for the child, Oscar O., 209 Ariz. at 334, ¶ 6.
¶13 Here, the record supports the juvenile court’s finding that it
was in the child’s best interests to terminate Father’s parental rights. The
juvenile court found that the child has spent most of his life having no
relationship with Father and in the custody of DCS. The court found the
child’s current placement is meeting his needs and would provide
permanency and stability. The case manager testified the child was
adoptable and doing well in foster care. The child has bonded with his half-
siblings while living with them in a licensed foster home, which is willing
to adopt. The juvenile court did not abuse its discretion by finding
termination to be in the child’s best interests.
CONCLUSION
¶14 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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