In Re Term of Parental Rights as to A.R. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.R.
No. 1 CA-JV 23-0032
FILED 6-22-2023
Appeal from the Superior Court in Maricopa County
No. JS21309
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Scottsdale
By Denise L. Carroll
Counsel for Appellant
Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellee
IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.R.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 Francisco R. (father) appeals the superior court’s order
terminating his parental rights to A.R. Because he has shown no error, the
order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 A.R. was born in 2009 to father and mother, who never
married. In 2014, in a family court proceeding, the court ordered equal
parenting time but required no child support from either parent. A few
years later, mother married another individual.
¶3 Father exercised his parenting time until December 2020,
when A.R. indicated she no longer wanted to visit him. For the next two
years, father did not exercise parenting time and did not contact A.R. or
send her any cards, gifts, letters or support. Nor did he seek further court
orders.
¶4 In July 2022, mother and her husband petitioned to terminate
father’s parental rights based on abandonment. Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(1)(2023).1 In October 2022, father texted mother asking to see A.R.
and suggested they begin counseling; mother responded that A.R. did not
wish to see father. After a December 2022 adjudication, the superior court
terminated father’s parental rights, and he timely appealed. This court has
jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S.
§§ 8-235(A), 12-120.21(A) and 12-2101(A), and Ariz. R.P. Juv. Ct. 601-03.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.R.
Decision of the Court
DISCUSSION
¶5 Father challenges the superior court’s abandonment finding.
This court will reverse an order terminating parental rights only if the
factual findings are clearly erroneous or not supported by the record. See
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377 ¶ 2 (App. 1998). This
court views the evidence in a light most favorable to sustaining the superior
court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207
¶ 2 (App. 2008).
¶6 Abandonment occurs when a parent fails to “provide
reasonable support and to maintain regular contact with the child,
including providing normal supervision.” A.R.S. § 8-531(1). The court must
consider whether the parent has provided reasonable support, maintained
regular contact, made more than minimal efforts to support and
communicate with the child, and maintained a normal parent-child
relationship. Id. A parent must act persistently to pursue the parent-child
relationship, despite any obstacles that may arise. Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 250 ¶ 22 (2000). Failure to maintain a normal
parent-child relationship without just cause for a period of six months is
prima facie evidence of abandonment and creates a rebuttable presumption
of abandonment. A.R.S. § 8-531(1).
¶7 Father argues he did not intend to abandon A.R., but
abandonment is measured by a parent’s conduct, not subjective intent.
Michael J., 196 Ariz. at 249-50 ¶ 18. The record shows that, for more than
two years, father did not visit with A.R., did not have contact with her and
did not provide her emotional or financial support. He made very limited
efforts to communicate with A.R. and did not seek to exercise or enforce his
parenting time. This evidence supports the court’s finding that, although
father loves A.R., he “made choices that resulted in the deterioration of the
normal parent-child relationship.”
¶8 Father argues mother interfered with his ability to maintain a
relationship with A.R. He asserts mother did not allow him to see A.R. or
participate in her life, “respond to any of his [multiple] attempts to contact
her” or “reach out to [him] to facilitate the relationship.” But mother
testified that she did not interfere with or prevent father’s relationship with
A.R. Mother explained that father knew where they lived, and she had not
changed her phone number or A.R.’s school or dance studio.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.R.
Decision of the Court
¶9 Ultimately, the superior court found that father had “engaged
in very limited efforts to communicate with” A.R., a finding supported by
the record. Father testified that he was blocked from contacting A.R. on her
cell phone, after which he tried calling mother and went to their home a few
times but received no response. Mother’s failure to respond to his calls,
however, does not amount to the substantial and persistent interference
required to rebut the presumption of abandonment. See Calvin B. v. Brittany
B., 232 Ariz. 292, 293 ¶ 1 (App. 2013) (noting parent may rebut presumption
of abandonment by showing the other parent “persistently and
substantially restricted his interaction with his child”). Recognizing there
was conflicting trial evidence, father has shown no error in the court’s
abandonment finding.
¶10 Father next argues the superior court erred in finding
severance was in A.R.’s best interests because no evidence showed that
continuing his relationship with A.R. would harm her. Father also argues
that he and his extended family had a strong bond with A.R. for most of her
life.
¶11 A party seeking termination must show by a preponderance
of the evidence that termination is in the best interests of the child. Kent K.
v. Bobby M., 210 Ariz. 279, 284 ¶ 22 (App. 2015). Best interests is proven by
evidence that “the child would benefit from a severance or be harmed by
the continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-
500274, 167 Ariz. 1, 5 (1990). In assessing best interests, the court “must
consider the totality of the circumstances existing at the time of the
severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148
¶ 1 (2018).
¶12 Here, the superior court found that A.R. wants permanency
and stability in her life; she identifies stepfather as her father and wants him
to adopt her. The court also found stepfather “communicates with the child,
participates in her extracurricular activities, and provides her with the type
of emotional support a parent would provide a child. [He] provides for the
child financially and supports her academically. [He] is bonded to the
child” and wishes to adopt her. Though the court found “no evidence that
the child would be harmed if the Court denied the request to terminate the
parent-child relationship,” reasonable evidence supports these findings.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.R.
Decision of the Court
¶13 The superior court recognized that father loves A.R. and that
he “previously had a healthy relationship” with her, but that “his actions
since 2019 have resulted in a deterioration of their prior bond.” See
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016)
(“The existence and effect of a bonded relationship between a biological
parent and a child, although a factor to consider, is not dispositive in
addressing best interests.”). Given this trial evidence, father has shown no
error in the finding that severance was in the best interests of A.R.
CONCLUSION
¶14 The order is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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