In Re Term of Parental Rights as to W.G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 W.G.
No. 1 CA-JV 22-0233
FILED 2-28-2023
Appeal from the Superior Court in Maricopa County
No. JS21029
The Honorable Wendy S. Morton, Judge Pro Tempore
AFFIRMED
COUNSEL
Denise L. Carroll Attorney at Law, Scottsdale
By Denise L. Carroll
Counsel for Appellant
Modern Law, PLLC, Peoria
By B. Kathleen Gilbertson
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO W.G.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
C R U Z, Judge:
¶1 Madeline J. (“Mother”) appeals the superior court’s order
terminating her parental rights as to her son, W.G. We affirm.
FACTUAL AND PROCEDUAL HISTORY
¶2 Mother and Samuel G. (“Father”) were married in 2015 and
are the biological parents of W.G., born in 2016. In 2017, the parties
divorced by consent decree. That decree awarded the parties joint legal
decision-making authority and incorporated a parenting plan designating
Mother as primary residential parent while granting Father parenting time,
primarily during school breaks.
¶3 After Father’s first parenting time visit with W.G., Mother
accused Father of poisoning and inappropriately touching W.G. Mother
took W.G. to three medical facilities for evaluation and treatment. Each
time, doctors found no reason for concern, with one doctor describing the
results of the physical examination as “unremarkable and reassuring.”
¶4 A few days later, Mother absconded to California with W.G.,
without the court’s permission or notifying Father. Father then petitioned
to modify legal decision-making and parenting time. The court awarded
Father temporary sole legal decision-making and parenting time. About
four months later, W.G. was found in California and returned to Father.
Mother was arrested and charged with custodial interference and domestic
violence.
¶5 In January 2018, Mother’s attorney appeared at the
modification hearing and requested parenting time on Mother’s behalf.
Mother’s release conditions in the criminal case prohibited her from having
contact with W.G. or Father without leave of court. While Mother was
awaiting sentencing, the court continued its temporary orders and placed
Father’s petition to modify on the court’s inactive calendar for dismissal in
one year.
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IN RE TERM OF PARENTAL RIGHTS AS TO W.G.
Decision of the Court
¶6 In July 2018, Mother pled guilty to custodial interference. The
court placed Mother on supervised probation for three years, ordering her
to have no contact with Father or W.G. unless authorized by a family court
order and approved in writing by the Adult Probation Department
(“APD”). Mother never requested APD’s permission to have contact with
W.G., but she successfully completed her supervised probation term in July
2021, and the court designated the offense a misdemeanor.
¶7 Since neither party requested an evidentiary hearing or other
relief on Father’s petition to modify, the court dismissed his petition in
January 2019. In October 2021, Mother’s counsel contacted Father’s counsel
in Utah requesting that the parties adhere to the original parenting time
orders, but Mother’s testimony was inconclusive on the results of that
contact.
¶8 In December 2021, Father petitioned to terminate Mother’s
parental rights. After a two-day contested hearing, the superior court
terminated Mother’s parental rights after finding she had abandoned W.G.
and that termination was in his best interests. Mother has had no contact
with W.G. for over four and one-half years.
¶9 Mother timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1),
and 12-2101(A)(1).
DISCUSSION
¶10 Although the right to the custody of one’s child is
fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parental relationship, the
superior court must find by clear and convincing evidence at least one
A.R.S. § 8-533(B) ground for termination, and also by a preponderance of
the evidence that termination is in the child’s best interests. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). “The juvenile court, as the
trier of fact in a termination proceeding, is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002). This court does not reweigh the evidence and will look
only to determine if there is reasonable evidence to sustain the court’s
ruling. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). We will affirm the superior court’s ruling unless it is clearly
erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).
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IN RE TERM OF PARENTAL RIGHTS AS TO W.G.
Decision of the Court
I. Abandonment
¶11 Father’s petition sought termination of Mother’s rights based
on abandonment.1 See A.R.S. § 8-533(B)(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).
¶12 “[A]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct . . . .” Michael J., 196 Ariz. at 249, ¶ 18.
“What constitutes reasonable support, regular contact, and normal
supervision varies from case to case.” Pima Cnty. Juv. Action No. S-114487,
179 Ariz. 86, 96 (1994). Because the concept of abandonment and terms like
“reasonable support” or “normal parental relationship” are imprecise and
elastic, these are questions of fact left to the superior court. Id. Relevant
facts for the court to consider include whether Mother “visited the [child]
regularly, the nature of her relationship with the [child] and whether,
within that context, she provided parental supervision and guidance as the
circumstances allowed.” Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 20 (App.
2010).
¶13 Mother argues the court’s findings of abandonment were not
supported by the evidence. But the record shows otherwise. In its detailed
38-page ruling, the superior court evaluated all relevant evidence and
considered both parties’ evidence, testimony, and “every exhibit.” We will
not disturb the court’s findings when supported by substantial evidence.
See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
¶14 More specifically, Mother claims the court failed to consider
(1) “the stifling effect of a court order of no contact,” (2) Mother’s age and
maturity when she relocated with W.G. to California without the court’s
permission, and (3) Father’s actions “in causing the alienation of” W.G.
1 In his petition, Father also alleged Mother neglected W.G., but the
court terminated Mother’s parental rights only on the abandonment
ground. See A.R.S. § 8-533(B)(1), (2).
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IN RE TERM OF PARENTAL RIGHTS AS TO W.G.
Decision of the Court
from Mother. Although a court abuses its discretion when it reaches a
conclusion without considering the evidence, Flying Diamond Airpark, LLC
v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007), there is no evidence that the
court did so here. In its detailed ruling, the court addressed Mother’s
actions while subject to no-contact pre-sentencing release conditions and
probationary terms. The court found Mother’s argument that “her
probationary no contact order kept her from having contact with [W.G.]”
unpersuasive because at one point Mother requested parenting time while
that order was in effect. And the court noted Mother’s trial testimony that
she knew she could request permission from APD to contact W.G. Mother
also admitted her probation officer advised her to seek the family court’s
permission to have contact with W.G., but she never did so.
¶15 The court also addressed Mother’s age and maturity when
she relocated with W.G. to California, taking note of Mother’s testimony
that she “learned from this incident,” realized her actions “were wrong,”
and admitted “she was very young and did not understand the legal
ramifications” when she took W.G. to California. When considering
Father’s actions toward Mother, the court found his “actions were
reasonable under the circumstances” and “were justified by Mother’s
actions.” Mother asks this court to reweigh evidence and reassess witness
credibility on appeal, which we will not do. See Jesus M., 203 Ariz. at 280,
¶ 4. The court considered all relevant evidence when making its detailed
abandonment findings, and we find no error.
II. Best Interests
¶16 Mother also argues the court’s best interests findings were
erroneous. Termination is in a child’s best interests if the child will benefit
from the termination, or the child will be harmed if the court denies it. Alma
S., 245 Ariz. at 150, ¶ 13. In making the determination, the court evaluates
the totality of circumstances at the time of trial, considering factors such as
the availability of an adoption plan, the bond between the parent and the
child, and the negative effect on a child of the continued existence of a
statutory ground for termination. Id. at 150-51, ¶ 13; Dominique M. v. Dep’t
of Child Safety, 240 Ariz. 96, 98-99, ¶¶ 10-12 (App. 2016).
¶17 The court found termination was in W.G.’s best interests
because Mother has not seen W.G. for almost five years, W.G. has lived with
Father since October 2017, and he is strongly bonded to Father and Father’s
wife. W.G. considers Father’s wife to be his “mommy,” and Father’s wife
wishes to adopt W.G. The court also found that, absent termination, W.G.
would be harmed because Mother repeatedly made false allegations of
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IN RE TERM OF PARENTAL RIGHTS AS TO W.G.
Decision of the Court
abuse against Father that resulted in W.G. receiving unnecessary and
invasive medical treatment. The court’s best interests findings are
supported by the record.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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