Erbey B. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERBEY B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.B., A.S., E.S., R.B., Appellees.
No. 1 CA-JV 15-0351
FILED 5-3-2016
Appeal from the Superior Court in Maricopa County
No. JD27950
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee DCS
ERBEY B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Erbey B. (Father) appeals the juvenile court’s order
terminating his parental rights to E.B., A.S., E.S., and R.B. (collectively, the
Children), arguing the Department of Child Safety (DCS) failed to prove
the statutory ground of abandonment by clear and convincing evidence.
For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In March 2014, DCS assumed temporary custody of the
Children, ages nine, eight, seven, and six, after receiving a report from the
school that E.B. and E.S. were to be suspended for behavior issues, but the
school had been unable to reach the Children’s mother for several days.
Father was in prison at the time and unable to parent.2
¶3 DCS filed a petition alleging the Children were dependent as
to Father on the grounds of abuse and neglect. Father waived his right to
contest the allegations of the petition, and, in May 2014, the juvenile court
adjudicated the Children dependent as to Father.3 Father was encouraged
1 We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).
2 Although paternity had not been established for the three younger
children at the time the petition was filed, genetic testing, initiated by DCS,
later confirmed Father is the biological parent of all four children.
3 The Children were also adjudicated dependent as to their mother.
She did not participate in the case plan, and her parental rights were
severed in January 2015. She did not appeal that order and is not a party to
this action.
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ERBEY B. v. DCS, et al.
Decision of the Court
to participate in any services available to him while in prison that would
improve his parenting skills and address concerns regarding domestic
violence. In addition, he was advised to “try and build a relationship with
[the Children] through cards, letters, and gifts” and approved to have
supervised phone contact.
¶4 In November 2014, over Father’s objection, the case plan was
changed to severance and adoption. DCS immediately filed a motion to
terminate the parent-child relationship, alleging severance was warranted
based upon his incarceration pursuant to Arizona Revised Statutes (A.R.S.)
section 8-533(B)(4).4 DCS later amended the petition to allege abandonment
pursuant to A.R.S. § 8-533(B)(1). Father was released from custody ten days
prior to trial, and DCS proceeded solely upon a theory of abandonment.
¶5 At the severance hearing in October 2015, Father admitted he
had been incarcerated for most of the Children’s lives and had not had
significant contact with the Children since he first went to prison in 2008,
when the oldest of the Children was four. During the short time Father was
not incarcerated in 2012, he engaged in domestic violence with the
Children’s mother. As a result, E.B. suffers from post-traumatic stress
disorder, and R.B. expressed a desire to have no contact with Father.
¶6 In the nineteen months the Children were in an out-of-home
placement, Father sent one card to the Children in the summer of 2014; he
sent a letter to the Children in the summer of 2015; and he sent one
additional letter and made a single phone call to E.B. only shortly before the
severance hearing. Although Father was employed while in prison, the
Children did not receive any gifts or financial support from him during that
time. Father had no contact with DCS outside of court hearings and
provided no documentation to show he completed any services while
incarcerated.
¶7 At the conclusion of the severance hearing, the juvenile court
noted Father, by his own admission, had been “steadily incarcerated with
the exception of a three-month period since 2008.” The court found Father
had not maintained a normal parental relationship with the Children for a
period longer than six months, without just cause, and “paid no support,
sent no cards, gifts, or letters, nor made any contact whatsoever with the
children.” Accordingly, the court determined DCS had proven
abandonment by clear and convincing evidence. The court also found
4 Absent material changes from the relevant date, we cite a statute’s
current version.
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ERBEY B. v. DCS, et al.
Decision of the Court
severance to be in the Children’s best interests and entered an order
terminating the parent-child relationship. Father timely appealed. We
have jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), -2101(A)(1),
and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶8 A parent’s rights to a child may be terminated if “the parent
has abandoned the child.” A.R.S. § 8-533(B)(1). 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). In order to terminate a parent’s rights to his children,
abandonment must be proven by clear and convincing evidence. See Ariz.
R.P. Juv. Ct. 66(C).5 Father argues DCS failed to meet this burden. We
disagree.
¶9 On appeal, Father does not dispute the juvenile court’s factual
findings, but he argues that severance was improper because any efforts he
might have made to maintain a relationship with the Children were
“doomed to fail” as a result of his incarceration. However, when
circumstances prevent a parent from exercising “traditional methods of
bonding with his child,” that parent “must act persistently to establish the
relationship however possible and must vigorously assert his legal rights
to the extent necessary.” Pima Cnty. Juv. Severance Action No. S-114487, 179
Ariz. 86, 97 (1994) (citing In re Raquel Marie X, 559 N.E.2d 418, 428 (N.Y.
1990)). These principles apply where, as here, the parent, as a result of his
incarceration, “has no immediate and obvious” tie to his children. Id. at 90-
91, 97; see Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 25 (2000).
In the absence of such a requirement, “a young child languishes in limbo —
5 The juvenile court must also find by a preponderance of the evidence
that severance is in the child’s best interests, Ariz. R.P. Juv. Ct. 66(C); Kent
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005), but Father does not argue
insufficient evidence supports this finding.
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ERBEY B. v. DCS, et al.
Decision of the Court
surrendered by the mother, unclaimed by the father, and bonding with
others — from which the law cannot extricate the child without lengthy
proceedings compounding the harm.” S-114487, 179 Ariz. at 97.
¶10 We do not doubt Father faced a significant challenge in
establishing and maintaining a relationship with the Children — who
ranged in age from one to four years old when Father was first incarcerated
eight years ago — while in prison. But, the record does not demonstrate
Father asserted his rights to the Children or acted to establish a relationship
with them during that period. Although the case plan permitted Father to
have supervised telephone calls with the Children and required him to
build a relationship through cards, letters, and gifts, the entirety of Father’s
participation in the Children’s lives during the nineteen months they were
in an out-of-home placement consisted of one card, two letters, and one
phone call. The Children received no gifts from him; nor did he provide
financial support for the Children. He did not have any contact with the
DCS caseworker outside of court hearings and left it entirely to DCS to
request genetic testing of the children for whom paternity had not been
established. See id. at 98-99 (noting a parent must “do more than just wait
to respond” to the actions of other parties; “he need[s] to affirmatively act
to establish his rights”). Incarceration alone does not justify a failure to
make more than minimal efforts to support and communicate with a child,
Michael J., 196 Ariz. at 250, ¶ 21, and Father does not provide any other
explanation for his failure to act.
¶11 Father also argues he did not abandon the Children because
DCS failed to prove any “conduct on the part of the parent which implies a
conscious disregard of the obligations owed by a parent to the child, leading
to the destruction of the parent-child relationship.” However, this
“conscious disregard” standard has been rejected in cases where the parent
has no existing relationship with the child. See S-114487, 179 Ariz. at 97.
Instead, “we judge abandonment by conduct, not by subjective intent” and
measure a parent’s actions against the statutory definition of abandonment
found in A.R.S. § 8-531(1). Id.; see Michael J., 196 Ariz. at 250, ¶ 19. Here,
reasonable evidence supports the juvenile court’s determination that Father
abandoned the Children. See S-114487, 179 Ariz. at 99 (affirming
termination of parental rights on the basis that “the father abandoned the
child because he failed to promptly and persistently grasp the opportunity
to develop a relationship with his child or assert his legal rights”).
¶12 Lastly, Father argues the circumstances giving rise to his
inability to parent were not his fault, but that of “the government, when it
sentenced him to prison.” Contrary to Father’s contention, however, Father
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ERBEY B. v. DCS, et al.
Decision of the Court
is solely responsible for the acts leading to his conviction and causing him
to be removed from society. Cf. Sherman/Bertram, Inc. v. Cal. Dep’t of Emp’t,
21 Cal. Rptr. 130, 132 (Ct. App. 1962) (“[C]laimant’s unemployment was the
result of his own fault — his own willful and felonious act in leaving the
scene of an accident in which he was involved without complying [with
applicable law requiring him to stop].”), cited with approval in Magma Copper
Co., San Manuel Div. v. Ariz. Dep’t of Econ. Sec., 128 Ariz. 346, 349 n.2 (App.
1981). To blame the criminal justice system for having denied Father his
children by putting him in prison for his felonious conduct is nothing more
than an exercise in sophistry. See id.CONCLUSION
¶13 The juvenile court’s order terminating Father’s parental rights
to the Children is affirmed.
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