Shontal K. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHONTAL K.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.S., Z.K., I.S.,
Appellees.
No. 1 CA-JV 17-0235
FILED 11-14-2017
Appeal from the Superior Court in Navajo County
No. S0900JD201600008
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL
Coronado Law Firm, PLLC, Lakeside
By Eduardo H. Coronado, Kai M. Henderson
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee DCS
SHONTAL K. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge James P. Beene joined.
J O H N S E N, Judge:
¶1 Shontal K. ("Mother") appeals the superior court's order
terminating her parental rights to her three children. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother was arrested in February 2016 and jailed after police
responded to a report of domestic violence. At the time, Mother had two
children (a two-year-old and a one-year-old); the Department of Child
Safety ("DCS") took temporary custody of them and filed a dependency
petition alleging neglect. At a mediation, Mother agreed that she would
participate in services, including substance-abuse treatment, random drug
testing, individual and domestic-violence counseling, parent-aide services
and supervised visitation. The DCS caseworker contacted Mother in jail
and outlined the services DCS would make available to her upon her
release, and asked Mother to write to her two children from jail and to
contact the caseworker upon her release. Mother, however, did not write
to the children during her incarceration. Moreover, although the jail
informed DCS that Mother had been released in May 2016, Mother failed to
contact DCS or her lawyer for six months after her release.
¶3 Without word from Mother, the superior court found the two
children dependent in mid-2016 and adopted a case plan of family
reunification. In July 2016, DCS received a report that Mother had given
birth to another child and that she and the child's father had left the infant
with a friend without money or supplies for "a long period of time." On
petition by DCS, the court ruled the third child dependent. DCS then
moved in early November 2016 to sever Mother's parental rights to the
three children.
¶4 Mother, meanwhile, was struck by a car on November 1 and
injured. In mid-November, she renewed contact with DCS by telephoning
the case manager. The caseworker told Mother she needed to participate in
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Decision of the Court
a substance-abuse assessment and drug testing, but the caseworker did not
refer Mother for such treatment because Mother told her she had already
set up an intake meeting. Over the next few weeks, the caseworker
periodically telephoned Mother, but each time, Mother hung up on her.
¶5 The court set a termination hearing for January 23, 2017, and
ordered Mother to contact DCS once a week pending the hearing. Although
Mother called DCS as directed, she did not ask to visit the children and
would not give the caseworker her address. Further, Mother declined visits
with her children, saying that she was recovering from the auto accident.
¶6 At the hearing, Mother conceded she had not made any effort
to see or contact the children during the proceedings, saying she had not
done so because she was having "so many problems" since her own mother
passed away in February 2016. She asserted that she had left a message
with the caseworker upon her release from jail, but the caseworker denied
receiving any such message.
¶7 The superior court severed Mother's parental rights based,
inter alia, on abandonment pursuant to Arizona Revised Statutes ("A.R.S.")
section 8-533(B)(1) (2017).1 This court has jurisdiction over Mother's timely
appeal pursuant to Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 8-235(A) (2017), 12-120.21(A)(1) (2017) and -2101(A)(1) (2017).
DISCUSSION
¶8 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds in
A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the court
must find by a preponderance of the evidence that termination is in the
child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
¶9 We review a termination order for an abuse of discretion and
will affirm unless no reasonable evidence supports the court's findings.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Because the superior court is in the best position to "weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings," we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203
1 Absent material revision after the relevant date, we cite a statute's
current version.
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SHONTAL K. v. DCS, et al.
Decision of the Court
Ariz. 278, 280, ¶ 4 (App. 2002). On appeal, this court will affirm a severance
order unless it is clearly erroneous. Id.
¶10 Among the statutory grounds for termination that DCS
alleged against Mother is abandonment. A.R.S. § 8-533(B)(1). Under
Arizona law, "abandonment" means:
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) (2017).
¶11 In deciding whether a parent has abandoned a child as
defined in A.R.S. § 8-531(1), the superior court "should consider each of the
stated factors—whether a parent has provided 'reasonable support,'
'maintain[ed] regular contact with the child' and provided 'normal
supervision.'" Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 18 (App. 2010).
"[A]bandonment is measured not by a parent's subjective intent, but by the
parent's conduct." Michael J., 196 Ariz. at 249, ¶ 18. When "circumstances
prevent the . . . [parent] from exercising traditional methods of bonding
with [the] child, [the parent] must act persistently to establish the
relationship however possible and must vigorously assert his legal rights
to the extent necessary." Id. at 250, ¶ 22.
¶12 On appeal, Mother argues that insufficient evidence exists to
support the court's finding that she abandoned the children. The record,
however, provides ample support for the superior court's findings that
Mother abandoned the children by failing to maintain a normal parental
relationship with them without just cause, failing to provide reasonable
support, failing to maintain regular contact and failing to provide normal
supervision.
¶13 By the time of the termination hearing, Mother had had no
contact with her older two children for nearly a year, and had not seen her
youngest child for more than six months. Mother had not written to the
children during that time, and the DCS caseworker testified that when she
talked to Mother, Mother never asked about the children. Mother does not
dispute the court's finding that she had no contact with the children for
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SHONTAL K. v. DCS, et al.
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more than six months, and the record supports the court's finding that at
no point since the dependency began did Mother ask for visits with her
children.2 Moreover, having heard the testimony, the superior court did
not abuse its discretion in concluding that even though Mother was
confined to a wheelchair following her accident, that did not excuse
Mother's failure to try to maintain contact with the children. Mother argues
that she did not intend to abandon her children, pointing to evidence that
she told the caseworker during her incarceration that she "would try" to
avail herself of services and that she lacked transportation. The court did
not abuse its discretion in finding this evidence was insufficient to
overcome the other evidence that Mother intentionally ceased all contact
with her children.3
¶14 Finally, Mother also contends the court erred by finding by a
preponderance of the evidence that severance was in the children's best
interests. She contends "there was no evidence that the children would be
placed into stable homes," and argues that she loves her children and was
working to take care of them.
¶15 "[T]ermination of the parent-child relationship is in the child's
best interests if the child would be harmed if the relationship continued or
would benefit from the termination." Demetrius L. v. Joshlynn F., 239 Ariz.
1, 4, ¶ 16 (2016) (quoting Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21 (App.
2014). The best-interest requirement "may be met if . . . the [party seeking
termination] proves that a current adoptive plan exists for the child, or even
that the child is adoptable." Demetrius L. at 3-4, ¶ 12 (quoting Mary Lou C.,
207 Ariz. at 50, ¶ 19). After a statutory ground for severance has been
proved, in considering the child's best interests, "the court must balance the
unfit parent's 'diluted' interest 'against the independent and often adverse
interests of the child in a safe and stable home life.'" Demetrius L. at 4, ¶ 15
(quoting Kent K., 210 Ariz. at 286, ¶ 35).
¶16 The superior court here did not abuse its discretion in finding
that severance would be in the best interests of the children because it
would further a plan of adoption, which would provide the children with
2 Although Mother argues she asked to visit her children following
her accident in November 2016, the caseworker testified to the contrary.
3 To the extent that Mother's brief suggests that DCS failed to make
reasonable efforts to provide her with appropriate reunification services,
the statutory ground of abandonment requires no such proof. Toni W. v.
Ariz. Dep't of Econ. Sec., 196 Ariz. 61, 64, 66, ¶ 9, ¶ 15 (App. 1999).
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Decision of the Court
permanency and stability. Moreover, the evidence also supported the
court's finding that continued custody by Mother would likely "result in
serious emotional or physical damage to the children." The court heard
evidence that severance would allow the children to be adopted, and even
though their current placements were unwilling to adopt them, the
placements were meeting the children's needs for stability in the meantime.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court's order
terminating Mother's parental rights.4
AMY M. WOOD • Clerk of the Court
FILED: AA
4 The termination order cited other statutory grounds for severance,
but, having found the evidence sufficient to support severance based on
abandonment, we need not address any of the other grounds. Michael J.,
196 Ariz. at 251, ¶ 27.
6