Opinion
No. 2 CA-JV 2019-0060
08-06-2019
AUNDRE O., Appellant, v. ANGELA M. AND I.O., Appellees.
COUNSEL The Stavris Law Firm PLLC, Scottsdale By Christopher Stavris Counsel for Appellant The Law Office of Rebecca R. Johnson, Safford By Rebecca R. Johnson Counsel for Appellee Angela M. Law Office of Josi Y. Lopez P.C., Safford By Josi Y. Lopez Counsel for Appellee I.O.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Greenlee County
No. SV201800012
The Honorable Monica L. Stauffer, Judge
AFFIRMED
COUNSEL The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant The Law Office of Rebecca R. Johnson, Safford
By Rebecca R. Johnson
Counsel for Appellee Angela M. Law Office of Josi Y. Lopez P.C., Safford
By Josi Y. Lopez
Counsel for Appellee I.O.
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 In this private severance proceeding, Aundre O. challenges the juvenile court's order terminating his parental rights to his eight-year-old daughter, I.O., on the ground of abandonment. See A.R.S. § 8-533(B)(1). We affirm.
¶2 A juvenile court may terminate a parent's rights if it finds any statutory ground for severance by clear and convincing evidence and finds, by a preponderance of the evidence, that severance is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision, and we will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009) (citation omitted). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We review issues of law de novo. Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, ¶ 1 (App. 2008).
¶3 After a termination adjudication hearing, the juvenile court granted the termination petition that Angela M., I.O.'s mother, filed in November 2018, finding as follows:
Aundre . . . has not provided normal supervision over [I.O.] since the child was 6 months old. When [I.O.] was 6 months old to 13 months old [Aundre] was not part of the child's life, [but] he saw [her] a couple of times. [He]
did not see the child at all from the ages of 1 to about 3 ½ years due to his incarceration. [Aundre] had few visits with [I.O.] after his release from [prison] as follows: a visit in May of 2014, February of 2015, August of 2015, November of 2015, December of 2015, April 2016 and finally, the last time he saw her July 20 of 2017. [Aundre]'s last visit with the child was approximately 16 months prior to the filing of the [p]etition to terminate his rights.The court found Aundre had "sent a few gifts over the last several years," and it detailed his telephone communications with I.O., finding that, although Aundre had at least ten phone calls with I.O. in 2018, "[a]ll but 3 of these occurred after the Petition for Termination was filed."
¶4 The juvenile court acknowledged that Aundre, who lives in Maricopa County, suffers from debilitating symptoms related to his diagnosis with Aggressive Multiple Sclerosis, some of which limit his ability to travel long distances by vehicle. But, quoting Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, ¶ 22 (2000), the court noted that "when 'circumstances prevent [a parent] from exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary.'" The court found Aundre had not done so, stating, "For years, . . . Aundre . . . never requested the Court's assistance in establishing parenting time nor did he request an adjustment from the Court due to his disability."
¶5 With respect to I.O.'s best interests, the juvenile court found termination of Aundre's rights would free her for adoption by her step-father, John M., which would provide her with "additional stability and permanency" and would formalize John's obligations to her, such that his custody and financial responsibility for her would be assured in the event that Angela died or became incapacitated. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 17 (2016) (holding prospective adoption "can provide sufficient benefits to support a best-interests finding" in private termination proceeding).
¶6 Citing this court's decision in Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 1 (App. 2013), and relying primarily on his own testimony, Aundre argues the termination order should be reversed because Angela "restricted" his attempts to contact I.O. In Calvin B., this court stated, "[A] parent who has persistently and substantially restricted the other parent's interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child." Id. But in that case, we found the juvenile court's findings had "disregard[ed]" evidence that the father had repeatedly sought enforcement of his visitation rights and had "successfully petitioned the court to hold [the mother] in contempt for not allowing him the visitation granted by prior order." Id. ¶¶ 28-29. We concluded that, in contrast to the father in Michael J., "Calvin [had] 'vigorously assert[ed] his legal rights' to see his son." Id. ¶ 29 (quoting Michael J., 196 Ariz. 246, ¶ 22 (alteration in Calvin B.)). Aundre did not make the same showing here. When asked about a break in his "text" communications with Angela between February and June 2018, he said that, during that time, he had been attempting to obtain "paperwork to address the visitation rights." But after he encountered a "very hostile" clerk who failed to send him the required forms, he "got extremely stressed out" and did not follow up, adding that stress causes his illness to "become more active."
¶7 Aundre also argues "his medical condition and the symptoms that he suffers due to his illness present just cause for the difficulty in maintaining a normal relationship with his child." As he did below, he suggests, without citation to any authority, that "[t]his reasonably could be seen as a discriminatory effect and violation under the Americans with Disabilities Act." Although he does not directly challenge the juvenile court's detailed factual findings, he thus "contends that insufficient evidence was presented" to support termination on the ground of abandonment. We cannot agree.
¶8 Termination of a parent's rights may be warranted by evidence that he "has abandoned a child," § 8-533(B)(1), with "[a]bandoned" defined as "the failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision," A.R.S. § 8-201(1). "Abandoned includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child." Id. Aundre seems to suggest that Angela was required to prove not only the elements of abandonment but the absence of "good cause" for Aundre's failure to make more than "minimal efforts" toward support and communication. This is not the law. See Michael J., 196 Ariz. 246, ¶ 18 ("[A]bandonment 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.").
¶9 The statute only refers to "just cause" in permitting a petitioner to establish "prima facie evidence of abandonment" by proving a respondent parent failed "to maintain a normal parental relationship with the child without just cause for a period of six months." § 8-201(1) (emphasis added). As this court has explained, "Prima facie evidence is not evidence at all but rather is a presumption of law that, in the absence of evidence to the contrary, allows the trier of fact to presume the existence of a fact based on proof of other facts." State ex rel. Horne v. AutoZone, Inc., 227 Ariz. 471, ¶ 21 (App. 2011), vacated in part on other grounds, 229 Ariz. 358 (2012). Aundre cites no authority, and we are aware of none, that suggests a petitioner is required to rely on this presumption in order to prove abandonment. Instead, she may simply present evidence directly, "as if the presumption . . . had never existed." Id. ¶ 22. Here, the juvenile court does not appear to have relied on any "prima facie" evidence under the statute, as it expressly found Aundre had not provided I.O. with "normal supervision . . . since [she] was 6 months old" and had not provided her with financial support "since 2016."
¶10 In any event, Aundre has developed no meaningful argument, supported by legal authority, that either his assertion of "just cause" for his failings or his invocation of the Americans with Disabilities Act (ADA) requires us to reverse the juvenile court's termination order. He has therefore waived our review of these issues. See Ariz. R. Civ. App. P. 13(a)(7)(A) (appellate brief must contain supporting legal authority); Ariz. R. P. Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applicable to juvenile appeals); Melissa W. v. Dep't of Child Safety, 238 Ariz. 115, ¶ 9 (App. 2015).
Notwithstanding Aundre's waiver, our own limited research reveals numerous decisions across the country concluding that "a violation of the ADA is not a valid defense to a permanent custody action." In re B.A., 73 N.E.3d 1156, ¶¶ 9-10 (Ohio Ct. App. 2016) (collecting cases); see also In re Doe, 60 P.3d 285, 291 (Haw. 2002) ("allegations of an ADA violation are not a defense to a termination proceeding"; "any purported violation may be remedied only in a separate proceeding brought under the provisions of the ADA"). --------
¶11 We recognize that "[t]he concept of abandonment and terms such as 'reasonable support' or 'normal parental relationship' are somewhat imprecise and elastic." In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4 (1990). Accordingly, "questions of abandonment . . . are questions of fact for resolution by the [juvenile] court." Id. To a large extent, Aundre is asking this court to reweigh the evidence, which we will not do. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). Instead, we defer to the juvenile court, which is "in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004).
¶12 Aundre also maintains the juvenile court "erred in concluding that severance was in [I.O.'s] best interest." As he acknowledges, "a finding of best interests [may be] based on either a benefit to the child from severance or some harm to the child if severance is denied." Demetrius L., 239 Ariz. 1, ¶ 16. In challenging the juvenile court's best-interests finding, he notes several "concern[s]" he has regarding the stability of Angela and John's relationship and past choices Angela has made, such as her alleged decision to leave I.O. in the care of Aundre's relatives "for an extended period of time." Again, Aundre is asking us to reweigh the evidence, which we will not do. See Jesus M., 203 Ariz. 278, ¶ 12.
¶13 "Ultimately," Aundre argues the juvenile court "erred" in finding termination of his parental rights to be in I.O.'s best interest because, he maintains, it "doesn't bring her anything" or "change anything for [her] betterment," as "[n]o evidence was presented that [her] day-to-day life would change if the petition were denied." This reasoning was expressly disavowed by our supreme court in Demetrius L., 239 Ariz. 1, ¶ 18 (holding court of appeals erred "by viewing too narrowly the prospects and prospective benefits of adoption," "that is, by focusing solely on whether adoption would change the child's living arrangement"). The juvenile court's best-interests finding was consistent with the considerations addressed in Demetrius L. and was supported by the record. We find no error or abuse of discretion.
¶14 In sum, the juvenile court's ruling includes its well-reasoned analysis of the evidence received in the context of the applicable law, and its findings are supported by the record. We find no abuse of discretion, and we see no need to restate the court's analysis in full detail here. See Jesus M., 203 Ariz. 278, ¶ 16, citing State v. Whipple, 177 Ariz. 272, 274 (App. 1993). Instead, we adopt it, and we affirm the court's termination of Aundre's parental rights.