Jesus S. v. Dcs, B.S. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESUS S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 B.S., Appellees.
No. 1 CA-JV 15-0326
FILED 5-5-2016
Appeal from the Superior Court in Maricopa County
No. JS17730
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Father
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014)
(enacted), the Department of Child Safety (“DCS”) is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
For consistency, we refer to DCS throughout this decision.
JESUS S. v. DCS, B.S.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.
K E S S L E R, Judge:
¶1 Jesus S. (“Father”) appeals from the juvenile court’s order
terminating his parental rights to his daughter, BS. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Alexsandra G. (“Mother”) are the biological
parents of BS, born in August 2011.2 BS was removed from Mother’s care
in April 2014. At that time, Father was incarcerated and pending
deportation. The Department of Child Safety (“DCS”) filed a dependency
petition, and the juvenile court adjudicated BS dependent as to Father.
¶3 In November 2014, DCS filed a petition to terminate Father’s
parental rights based on his length of sentence pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(4) (Supp. 2015).3 Father was personally
served with the petition and notice of hearing in December. The notice of
hearing provides that
failure to personally appear in court at the initial hearing,
pretrial conference, status conference or termination
adjudication, without good cause shown, may result in a
finding that you have waived your legal rights and have
admitted the allegations in the Petition. In addition, if you fail
to appear without good cause, the hearing may go forward in
your absence and may result in termination of your parental
rights based upon the record and the evidence presented to
the Court.
2Mother’s rights were also terminated, but she is not a party to this appeal.
3We cite to the current version of the relevant statutes unless revisions
material to this decision have occurred.
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Decision of the Court
DCS later amended the petition to include the ground of abandonment
under A.R.S. § 8-531(1) (Supp. 2015) and withdrew the length-of-sentence
ground.
¶4 Father appeared telephonically at the initial severance
hearing in January 2015 and a pretrial conference in March 2015. Father
failed to appear for a pretrial conference in June 2015, and the juvenile court
noted that Father was possibly in federal custody at a facility in Eloy. In
August 2015, Father failed to appear at the contested severance hearing.
DCS requested the court proceed in Father’s absence and Father’s counsel
objected because Father may have been deported. The juvenile court set a
contested severance hearing for September.
¶5 Father again failed to appear at the September severance
hearing. When asked why Father was not present, Father’s counsel advised
that “[her] office did speak with [the] paternal grandmother who had
reported that Father had been deported to Mexico.” The court ultimately
found that even if he was deported he had means to participate in the
proceedings by contacting his counsel or the court, and as a result, his
absence was not with good cause:
The court is told that Father may have been deported but the
court is unable to find that his non-appearance is with good
cause. Even if deported, [F]ather had the ability to
communicate with his attorney or contact this Court, neither
of which occurred.
¶6 At the severance trial, the ongoing case manager testified that
throughout the dependency Father failed to provide any support to or
maintain regular contact with BS. The only contact in the record is one card
sent to BS and two letters to the case manager dated May 2014 and March
2015.4 Father did, however, request and receive photos of BS; and although
he also requested visitation, BS was unable to visit Father in prison because
of BS’s health issues.5 The case manager further stated that upon his release
in June 2015, Father may have been placed on an immigration hold and DCS
was unable to contact him or his family members. Lastly, the case manager
testified that BS’s current placement was meeting her needs and she was
adoptable.
4The first letter was addressed to the case manager but refers to BS.
5BS has a history of asthma. She was cleared to travel to visit Father so long
as the adult accompanying her was familiar with her condition.
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Decision of the Court
¶7 The court ultimately found the evidence supported the
allegation that Father abandoned BS:
[T]he evidence establishes that Father has not provided any
financial support for [BS]. He has not maintained any
meaningful personal contact but did provide a few letters.
Father last [] saw the child [] in January[] 2014. It is
noted that Father did request visits while he was in prison.
The visits did not occur, partially due to a health issue with
the child. It is important to note that even if visits had
occurred, the level of contact would have been nowhere near
what would be required to maintain even the basics of a
parent-child relationship. It is also meaningful that since he
completed his prison term, Father has not taken any steps to
develop or maintain his relationship with the child. Even if
he was held by ICE and then deported following his prison
term, he still could have made efforts toward the relationship.
He failed to do so.
Father timely appealed.6 We have jurisdiction pursuant to A.R.S. §§ 8-
235(A) (2014), 12-120.21(A)(1) (2003), and -2101(A)(1) (Supp. 2015).
DISCUSSION
¶8 On appeal, Father argues that: (1) the juvenile court abused
its discretion in finding Father waived his right to contest the termination
by failing to attend the adjudication hearing, and (2) there is insufficient
evidence to support the juvenile court’s ruling terminating Father’s
parental rights based on abandonment.
¶9 A parent’s right to custody and control of his or her own child
is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not
absolute, Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 12 (2000).
To justify severance of a parental relationship, the State must prove one of
the statutory grounds in A.R.S. § 8-533 by clear and convincing evidence.
Michael J., 196 Ariz. at 249, ¶ 12. In addition, the court must find by a
6 On the same day, Father also filed a motion asking the juvenile court to
reconsider the no good cause finding for Father’s non-appearance. The
motion confirms that Father was in Mexico at the time of trial, and
provides that he could appear by phone if the court set a hearing. The
juvenile court denied the motion in an unsigned minute entry. Father has
not sought to appeal from that order.
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Decision of the Court
preponderance of the evidence that severance of the relationship is in the
child’s best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
Because the juvenile court is in the best position to weigh evidence and
judge credibility, “we will accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings, and we will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence, but “look only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
I. The juvenile court did not err in finding that Father failed to appear
without good cause at the adjudication hearing.
¶10 Father first argues that the juvenile court abused its discretion
in finding that Father failed to appear without good cause and waived his
right to contest the termination of his parental rights. Father specifically
argues that the juvenile court erred because, although it was assumed that
Father was deported, no one could state Father’s status with actual certainty
at the time of the adjudication hearing. Father argues that the court should
have directed DCS to locate Father, and it erred in assuming he had control
over his ability to communicate with counsel and the court. We disagree.
¶11 If a parent fails to appear at a termination adjudication
hearing without good cause, the juvenile court can proceed if the parent
had notice of the hearing, was properly served, and had been previously
admonished regarding consequences of failure to appear. Ariz. R. Juv. P.
66(D)(2). “[A] finding of good cause for failure to appear is largely
discretionary.” Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15
(App. 2007) (citation omitted). “We therefore review the finding for an
abuse of discretion and generally will reverse only if the juvenile court’s
exercise of that discretion was ‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” Id. (quoting Lashonda M. v.
Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005).
¶12 Here, although Father argues that the juvenile court only
speculated as to his location at the time of the severance trial, his counsel
specifically stated that “[her] office did speak with [the] paternal
grandmother who had reported that Father had been deported to Mexico.”7
7This was later confirmed in Father’s motion asking the juvenile court to
reconsider the no good cause finding for Father’s non-appearance. The
motion states that Father was in Mexico at the time of trial.
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Decision of the Court
Thus, there is evidence in the record confirming Father’s status, and we
cannot say the juvenile court’s finding was manifestly unreasonable.
Ultimately, we agree with the court that it was Father’s obligation to
maintain contact with counsel following his deportation and, in the absence
of evidence indicating efforts by Father to initiate or maintain contact,
failure to do so cannot be considered excusable neglect. See Ulibarri v.
Gerstenberger, 178 Ariz. 151, 163 (App. 1993) (explaining “[n]eglect is
excusable when it is such as might be the act of a reasonably prudent person
in the same circumstances”); Hackin v. First Nat’l Bank of Ariz., 5 Ariz. App.
379, 385 (1967) (“We recognize that where a client wil[l]fully or negligently
fails to keep in touch with an attorney so that the attorney cannot properly
inform him as to the pending litigation that he cannot complain because he
does not realize the date of the trial.”).
II. There is sufficient evidence in the record to support the finding that
Father abandoned BS.
¶13 Father argues the court erred in finding he had abandoned BS
pursuant to A.R.S. § 8-531(1). Abandonment is defined as
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). Whether a child has been abandoned is based on a
parent’s conduct, and not subjective intent. Michael J., 196 Ariz. at 249, ¶ 18;
see also Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 16 (App. 2010) (internal
citations omitted) (“[A]bandonment under [A.R.S. § 8-531(1)] no longer
turns on whether a parent has intentionally relinquished a child. Instead,
[. . .] abandonment exists when a parent has failed to provide reasonable
support and to maintain regular contact and a normal parental relationship
with the child.”).
¶14 In an abandonment claim, imprisonment provides neither a
per se defense nor justification for termination. Michael J., 196 Ariz. at 250,
¶ 22 (quoting In re Pima Cty. Juvenile Action No. S-624, 126 Ariz. 488, 490
(App. 1980)). It is “merely one factor to be considered in evaluating the
father’s ability to perform parental obligations.” S-624, 126 Ariz. at 490;
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Decision of the Court
Michael J., 196 Ariz. at 250, ¶ 22. If circumstances are such that conventional
methods of bonding are unavailable, a father “must act persistently to
establish the relationship however possible and must vigorously assert his
legal rights to the extent necessary.” In re Pima County Juvenile Action No.
S-114487, 179 Ariz. 86, 97 (1994); Michael J., 196 Ariz. at 250, ¶ 22.
¶15 The concepts underlying abandonment and considered in the
statute are “somewhat imprecise and elastic.” In re Maricopa Cty. Juvenile
Action No. JS-500274, 167 Ariz. 1, 4 (1990). “Therefore, questions of
abandonment and intent are questions of fact for resolution by the trial
court.” Id. On review, we examine the facts in a light most favorable to
sustaining the juvenile court’s judgment. Michael J., 196 Ariz. at 250, ¶ 20.
¶16 Father argues that he made diligent efforts to maintain a
parental relationship with BS but was unable to do so because requested
visitation never occurred. Visitation, however, is not the only means that
Father could have established legal or emotional bonds with BS. Father
neither provided BS with financial support, nor did he attempt to contact
her following his release and deportation. He also failed to contact his
lawyer or DCS after his release. “The burden to act as a parent rests with
the parent, who should assert his legal rights at the first and every
opportunity.” Id. at 251, ¶ 25. Accordingly, we find there was sufficient
evidence in the record to support the juvenile court’s order terminating
Father’s rights based on abandonment.
CONCLUSION
¶17 Having found there is sufficient evidence to support the
juvenile court’s findings, we affirm its order to terminate Father’s parental
rights to BS pursuant to A.R.S. § 8-531(1).
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