Francisco R. v. Dcs, M.M.

NOTICE: NOT FOR PUBLICATION.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
FRANCISCO R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.M., Appellees.
No. JV 14-0161
FILED 11-25-2014
Appeal from the Superior Court in Maricopa County
No. JD507796
The Honorable James P. Beene, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel J. Huff
Counsel for Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
FRANCISCO R. v. DCS, M.M.
Decision of the Court
G E M M I L L, Judge:
¶1 Francisco R. (Father) appeals the juvenile court’s order
terminating his parental rights to his son, M.M., arguing the evidence failed
to support termination under the statutory ground of abandonment. For
the reasons that follow, we affirm the severance of Father’s parental rights
to M.M.
¶2 M.M. was born in early 2008. Father arrived at the hospital a
couple hours after delivery, by which time D. M. (“Mother”) had filled out
the paperwork, giving M.M. her last name. Father did not sign anything
at the hospital acknowledging that he was the father and his name was not
included on the birth certificate.
¶3 Father claims that he repeatedly informed Mother that he
wanted his name to appear on the birth certificate, but he did not take any
legal action when she would not agree to it. Paternity was established in
October 2013, as part of the severance proceedings.
¶4 At the time of M.M.’s birth, Father lived with Mother and her
two other children at a house owned by M.M.’s maternal grandmother
(“Grandmother”). In May of 2008, Father was arrested for violating his
probation resulting from a conviction for possession of marijuana. Father
was subsequently sent to state prison until he was deported to Mexico in
February 2010.
¶5 In early 2009, while Father was in prison, Grandmother wrote
a letter to Father, informing him that M.M. had been taken by Child
Protection Services (“CPS”), now the Department of Child Safety (“DCS”).1
Father called Grandmother and was reassured that Mother was doing
everything she could to get him back. Father contends he additionally
attempted to call DCS, but lacked the contact information to discover where
M.M. was in order to obtain an address or phone number. Therefore,
because he lacked the contact information, Father admitted that he did not
1 CPS was formerly a division of the Arizona Department of Economic
Security (ADES). Effective May 29, 2014, the Arizona legislature repealed
the statutory authorization for creation of CPS and for ADES’s
administration of child welfare and placement services under title 8, and
transferred such powers, duties, and purposes to the newly established
DCS. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54.
2
FRANCISCO R. v. DCS, M.M.
Decision of the Court
send anything to or have any contact with M.M. from April 2008 until
March 2010.
¶6 Approximately a month after Father’s deportation in
February 2010, at which time Mother had regained custody of M.M., she
took M.M. to visit Father in Mexico for several weeks, and Father spent time
playing with and taking care of M.M. This was the last in-person contact
Father had with M.M. In April 2010, Father was arrested when he tried to
enter the United States illegally and was sentenced to 57 months in federal
custody.
¶7 Father made contradictory statements at the severance
hearing regarding his contact with M.M. following his arrest in April 2010.
On direct examination Father claimed to have called M.M. at least three
times between April 2010 and November 2011 (once from each of three
places he was incarcerated). On cross-examination, however, Father said
that he did not speak with his son on the phone until October or November
of 2011.
¶8 In November of 2011, DCS again took custody of M.M. and
Father stopped contacting Mother after being told that she had provided
DCS with his contact information. In October 2012, DCS filed a severance
motion alleging that Father failed to maintain a normal parental
relationship with M.M. by not providing reasonable support or normal
supervision and by not maintaining regular contact. Father did not call
DCS in order to get in touch with M.M. until 2013, after the severance
motion had been filed. Since January 2013, Father has written letters to,
been in phone contact with, and provided some amounts of money for
M.M.
¶9 The juvenile court conducted a contested severance trial in
April 2014. The court issued its ruling in June 2014 terminating Father’s
parental rights regarding M.M. on the ground of abandonment. Father
timely appeals and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 8-235, 12-120.21(A)(1), and -2101(A)(1).
¶10 Father argues the juvenile court’s finding that Father has
abandoned M.M. is erroneous and unsupported by the facts. We will
uphold the juvenile court’s termination of parental rights “absent an abuse
of discretion or unless the court’s findings of fact were clearly erroneous,
i.e., there is no reasonable evidence to support them.” Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (internal
3
FRANCISCO R. v. DCS, M.M.
Decision of the Court
quotation omitted). We emphasize that we do not re-weigh the evidence
on appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53
P.3d 203, 207 (App. 2002) (“The resolution of such conflicts in the evidence
is uniquely the province of the juvenile court as the trier of fact; we do not
re-weigh the evidence on review.”). If there is any reasonable evidence to
support the trial court’s order, we affirm. Id.¶11 The parent-child relationship may be terminated based on
clear and convincing evidence that the parent abandoned the child, in
accordance with 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 The Arizona Supreme Court has held that “abandonment is
measured not by a parent’s subjective intent, but by the parent’s conduct:
the statute asks whether a parent has provided reasonable support,
maintained regular contact, made more than minimal efforts to support and
communicate with the child, and maintained a normal parental
relationship.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249–50, ¶
18, 995 P.2d 682, 685–86 (2000).
¶13 The record reveals a period of time between Father’s arrest in
May 2008 and DCS taking custody of M.M. in early 2009 for which Father
offers no reason for not providing any support or making any contact with
M.M., notwithstanding his incarceration status. Our supreme court in
Michael J. emphasized that “incarceration alone . . . does not justify a failure
to make more than minimal efforts to support and communicate with [a]
child.” 196 Ariz. at 250, ¶¶ 21-22, 995 P.2d at 686. Father acknowledges he
did not have contact with M.M from his arrest in May 2008 until March
2010, though he blames his lack of communication on not knowing the
contact information for DCS. It was for the juvenile court to evaluate and
determine the weight to give to Father’s argument that he did not have
contact information for DCS. Because this court does not re-weigh evidence
4
FRANCISCO R. v. DCS, M.M.
Decision of the Court
and the juvenile court’s determination is reasonably supported by the
evidence, we conclude the juvenile court did not abuse its discretion by
finding that Father failed to maintain a normal relationship during the
period from May 2008 to March 2010.
¶14 Father’s contradictory statements (that he did not speak to
M.M. on the phone following his April 2010 arrest until October or
November of 2011 and that he spoke with him at least three times in that
period) are also reviewed subject to the evidentiary test described above.
Because the juvenile court’s determination is reasonably supported by the
evidence, we further conclude the court did not abuse its discretion by
finding that Father failed to maintain a normal relationship during the
period from April 2010 to October 2011.
¶15 We recognize that Father began, in the months prior to the
severance hearing, sending letters to and support for M.M., but the juvenile
court is not required to place great weight on last minute compliance
efforts. See Matter of Appeal in Maricopa Cnty. Juvenile Action No. JS-501568,
177 Ariz. 571, 577, 869 P.2d 1224, 1230 (1994) (finding mother’s successful
addiction recovery “too little, too late”).
¶16 To summarize, the two time periods listed by the court both
exceed the prima facie six month abandonment standard of A.R.S. § 8-
533(B)(1). Sufficient evidence in the record supports the juvenile court’s
findings that Father did not provide reasonable support or normal
supervision and did not maintain regular contact during these periods,
even considering his incarceration. On this record, we conclude the
juvenile court did not abuse its discretion in terminating Father’s parental
rights based on abandonment.2
¶17 Accordingly, we affirm the juvenile court’s termination of
Father’s parental rights.
:gsh
2 Father does not challenge the best interests finding on appeal.
5