Gavino C. v. Dcs ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GAVINO C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY1, N.C., G.C.,
Appellees.
No. 1 CA-JV 14-0051
FILED 08-26-2014
Appeal from the Superior Court in Maricopa County
No. JD500478
The Honorable Rodrick J. Coffey, Judge
AFFIRMED
COUNSEL
Law Office of Anne M. Williams, P.C., Tempe
By Anne M. Williams
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
To maintain consistency with the juvenile court record, however, we refer
to ADES throughout the body of our decision.
GAVINO C. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Chief Judge Diane M. Johnsen joined.
B R O W N, Judge:
¶1 Gavino C. (“Father”) appeals the juvenile court’s order
terminating his parental rights to seven-year-old N.C. and five-year-old
G.C. For the following reasons, we affirm.
BACKGROUND
¶2 In February 2011, Child Protective Services (“CPS”) received
a report that Priscilla L. (“Mother”), the biological mother of N.C. and G.C.,
was engaging in drug abuse and neglecting her children. The report also
alleged that the children were exposed to “on-going domestic violence.” A
CPS case manager contacted Mother and concluded she was unable “to
provide for all of [her] children’s basic needs such as food or proper
hygiene.”2 At that time, Father’s “current whereabouts and contact
information [were] unknown.”
¶3 In March 2011, the Arizona Department of Economic Security
(“ADES”) filed a dependency petition alleging Mother was unable to parent
due to substance abuse, neglect, domestic violence, and mental health
issues. The petition also alleged Father was unable to parent due to
abandonment, neglect and substance abuse. Specifically, although Father
was granted custody of N.C. and G.C. by court order as the result of a
previous dependency action against Mother, he failed to maintain a normal
relationship with the children or provide for their needs and instead
returned the children to Mother’s care.
¶4 On May 11, 2011, the juvenile court found the children
dependent as to Father. The court designated a case plan of family
reunification and ordered ADES to provide services for Father “should [he]
appear.”
2 Although the CPS report related to six of Mother’s children, only
N.C. and G.C. are Father’s children and at issue in this appeal.
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GAVINO C. v. DCS et al.
Decision of the Court
¶5 At a report and review hearing held October 10, 2012, the
juvenile court granted ADES’s request to change the case plan to severance
and adoption with regard to Mother, but denied the corresponding request
as to Father and ordered that the case plan for Father remain family
reunification. ADES filed a motion to terminate Mother’s parental rights
and, following procedural delays, her parental rights were terminated on
June 25, 2013.
¶6 At a subsequent report and review hearing held August 19,
2013, the juvenile granted ADES’s request to change the case plan to
severance and adoption as to Father. ADES then filed a motion to terminate
Father’s parental rights, alleging he had abandoned the children pursuant
to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(1) and been unable
to remedy the circumstances causing the children to be placed in court-
ordered out-of-home placement for more than fifteen months pursuant to
A.R.S. § 8-533(B)(8)(c).
¶7 The juvenile court held a two-day contested severance
hearing on January 6 and February 3, 2014. Father acknowledged he did
not know when he was last in contact with the children before they were
removed from Mother in March 2011. Father testified that he was granted
custody of the children when he was released from prison in 2010, but he
returned them to Mother notwithstanding they had been removed from her
care pursuant to court order. Father explained that he is employed as a
commercial roofer and frequently travels to work in other states for
extended periods and he “trusted [Mother] with [his] kids.” Father
admitted he had no contact with the children between March 2011 and June
2012, even though Mother had informed him the children were in the
custody of ADES a year earlier.
¶8 Father did not appear in the dependency case until June 28,
2012. Father admitted that, in March 2013, he left Arizona to work on a
roofing job without informing CPS beforehand, and failed to contact the
children in any manner between March 2013 and August 2013. He likewise
acknowledged that he failed to offer any financial support during the entire
period the children were subject to the dependency order.
¶9 The case manager confirmed that Father provided no
financial support for the children during the thirty-four months they have
been in the care of ADES. She further testified that the children have been
in the same foster home the entire period and are strongly bonded to their
foster parents, who wish to adopt them.
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GAVINO C. v. DCS et al.
Decision of the Court
¶10 The juvenile court granted ADES’s motion to terminate,
finding clear and convincing evidence that Father abandoned N.C. and
G.C., was unable to remedy the circumstances causing the out-of-home
placement, and that termination of his parental rights is in the children’s
best interests. Father timely appealed.
DISCUSSION
¶11 The juvenile court may terminate the parent-child
relationship only upon finding that clear and convincing evidence
demonstrates at least one statutory ground for severance and that a
preponderance of the evidence shows severance is in the child’s best
interest. A.R.S. § 8-533(B); Kent K. v Bobby M., 210 Ariz. 279, 284, ¶ 22, 110
P.3d 1013, 1018 (2005). We will affirm the judgment unless the juvenile
court abused its discretion by making “factual findings [that] are clearly
erroneous[;] that is, unless there is no reasonable evidence to support
them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d
1290, 1291 (App. 1998) (citations omitted). “[T]he juvenile court will be
deemed to have made every finding necessary to support the judgment.”
Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245,
1252 (App. 1991) (citations omitted).
¶12 Father contends the juvenile court erred by finding he
abandoned the children and contends he had “just cause” for leaving the
state. Pursuant to A.R.S. § 8-533(B)(1), the juvenile court was authorized to
terminate Father’s rights upon a finding that Father abandoned the
children. Abandonment is statutorily 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). Abandonment is measured objectively by examining the
parent’s conduct, not the parent’s subjective intent. Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (2000). When
“circumstances prevent [a parent] from exercising traditional methods of
bonding with his child, he must act persistently to establish the relationship
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GAVINO C. v. DCS et al.
Decision of the Court
however possible and must vigorously assert his legal rights to the extent
necessary.” Id. at 250, ¶ 22, 995 P.2d at 686.
¶13 Here, Father testified he was uncertain as to the last time he
contacted the children before the dependency proceeding began in March
2011. Although Mother informed Father the children were in ADES’s care
by June 2011, Father made no attempt to contact the children, check on their
welfare, or notify CPS of his whereabouts until June 2012. After making his
initial appearance in the dependency in June 2012, Father participated in
some court-ordered services, including visits with the children, between
June 2012 and March 2013. In March 2013, however, Father left the state,
without providing CPS prior notice, and never attempted to contact the
children or check on their welfare between March 2013 and August 2013.
Additionally, Father has never provided any financial support for the
children since their removal from Mother’s home in March 2011. Father’s
repeated, lengthy absences from his children’s lives are prima facie
evidence of abandonment. See A.R.S. § 8-531(1). Although Father stated
that his absences were primarily a function of his employment, Father failed
to “act persistently to establish a relationship” with his children by failing
to attempt any contact during these periods or provide financial support.
Moreover, by his own admission, Father did nothing to enforce his rights
for over a year after Mother informed him the children were taken into
ADES’s custody and only asserted his rights when Mother’s parental rights
were severed. Therefore, the juvenile court had sufficient basis to conclude,
by clear and convincing evidence, that Father abandoned the children.3
¶14 Father also challenges the juvenile court’s finding that
termination of his parental rights is in the children’s best interests. In
considering the children’s best interests, the court was required to
determine how the children would benefit from the severance or be harmed
by the continuation of their relationship with Father. Maricopa County Juv.
Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Two factors
the court “may properly consider in favor of severance” are the immediate
availability of an adoptive placement and whether an existing placement is
meeting the needs of the child. Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at
1291.
3 Because we conclude the evidence supports the juvenile court’s
order granting severance on the basis of abandonment, we need not
consider Father’s challenge to the other statutory basis found by the court.
See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687.
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GAVINO C. v. DCS et al.
Decision of the Court
¶15 The case manager testified that the children have been in the
same placement since they were removed from Mother in March 2011. She
testified that the children are doing well in their placement, are closely
bonded to their foster parents, and the foster parents wish to adopt them.
Additionally, she opined that termination and adoption were in the
children’s best interests. This evidence was sufficient to support the court’s
best interests finding.
CONCLUSION
¶16 We affirm the juvenile court’s order terminating Father’s
parental rights.
:gsh
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