Opinion
No. 2 CA-JV 2017-0207
04-09-2018
ERICA D., Appellant, v. DEDRA G., ROBERT S., AND R.S., Appellees.
COUNSEL E.M. Hale Law, Show Low By Elizabeth Hale Counsel for Appellant Flores & Clark P.C., Globe By Daisy Flores Guardian Ad Litem for R.S.
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NOT FOR PUBLICATION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 Graham County
No. SV201700013
The Honorable D. Corey Sanders, Judge Pro Tempore
AFFIRMED
COUNSEL E.M. Hale Law, Show Low
By Elizabeth Hale
Counsel for Appellant Flores & Clark P.C., Globe
By Daisy Flores
Guardian Ad Litem for R.S. MEMORANDUM DECISION Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Erica D. appeals from the juvenile court's order terminating her rights to her son, R.S., born in April 2016, pursuant to a private petition filed by Dedra G., the then fiancée of R.S.'s father, Robert S. Erica argues the court erred by finding she had abandoned R.S. pursuant to A.R.S. § 8-533(B)(1), and that termination was in his best interests. We affirm.
Section 8-533(A), A.R.S., provides: "[a]ny person . . . that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, a foster parent, a physician, the department or a private licensed child welfare agency, may file a petition for termination of the parent-child relationship . . . ." We also note that although the record does not appear to contain a document formally joining Robert as Dedra's co-petitioner, at the beginning of the severance hearing the juvenile court stated, "[S]o I think we had actually joined in [Robert as a petitioner] too, at one point," to which R.S.'s attorney responded, "We did." In addition, the court noted in its severance ruling it had joined Robert as a co-petitioner, and Erica's disclosure statement likewise listed both Dedra and Robert as the petitioners and listed as an uncontested material fact that "Petitioner, Dedra [], is a person with an interest in the welfare of the child."
R.S.'s guardian ad litem filed an answering brief on appeal asking that we affirm the juvenile court's termination order.
¶2 A juvenile court may terminate a parent's rights only if it finds by clear and convincing evidence that a statutory ground for severance exists, and finds by a preponderance of the evidence that severance is in the child's best interests. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). On review, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002).
¶3 We view the evidence in the light most favorable to upholding the juvenile court's ruling. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000). R.S., who tested positive for methamphetamine and marijuana at birth, was removed from Erica's care and placed with Robert shortly thereafter. Erica continued to use illegal drugs and was "[p]retty unstable" for the next six months, was incarcerated for three months after that, and then participated in various drug rehabilitation programs for approximately six months until June 2017. In May 2017, Dedra petitioned to terminate Erica's rights to R.S. on the grounds of abandonment, neglect and abuse, mental illness or history of chronic substance abuse, and deprivation of civil liberties due to a conviction. After a two-day contested severance hearing held in October and November 2017, the juvenile court terminated Erica's parental rights on abandonment grounds and found termination was in R.S.'s best interests.
¶4 Evidence presented at the severance hearing established the following: when Erica was not in rehabilitation, she did not make "much effort" to see R.S.; when she did visit him, Robert would not hear from her "for weeks or months at a time" afterward; closer to the severance hearing, she would fail to show up for scheduled visits with R.S.; Erica did not send R.S. any gifts or cards while she was in rehabilitation, although she provided some gifts for his first birthday; and, she never provided him any meaningful financial support. Erica had spent a total of approximately ten hours with R.S. since he was born. R.S. had always resided with Robert and Dedra, and he calls Dedra "mom."
¶5 Pursuant to § 8-533(B)(1), termination of parental rights is warranted if "the parent has abandoned the child." Section 8-531(1), A.R.S., defines abandonment 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."The concept of abandonment and terms such as 'reasonable support' or 'normal parental relationship' are somewhat imprecise and elastic. Therefore, questions of abandonment . . . are questions of fact for resolution by the [juvenile] court." In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4 (1990).
¶6 In its November 2017 ruling terminating Erica's parental rights, the juvenile court found "[a]lthough the testimony is in conflict as to how many visits [Erica] had with [R.S.] after her release from treatment . . . it appears that [Erica] spent no more than a total of ten hours with [R.S.] since his birth," and "[a]t no time has [Erica] ever been with [R.S.] without supervision by a third-party adult." The court also noted Erica essentially abandoned R.S. "for all practical purposes before her treatment began," and "never sought to establish normal parenting time with [him] until after she was served with the petition to terminate her parental rights [in June 2017]." It further found Erica had "not paid any support or provided any gifts or other emotional support" to R.S. other than gifts provided with the financial assistance of the maternal grandmother. The court noted that R.S. views Dedra as his "primary mother figure" and does not recognize Erica as his mother. It also determined Erica never sought to establish a relationship with R.S. during her six-month treatment, her absence did not deprive R.S. of a normal home "only because [Dedra] filled the emotional vacuum," and the bond between R.S. and Dedra is "unquestionably strong."
The juvenile court found that although Erica was not incarcerated, "the circumstances of in-patient treatment, especially when such treatment is accomplished as a term of probation, could be analogous to incarceration when determining whether a parent has abandoned a child." The court thus considered the factors set forth in Michael J. as part of its analysis. 196 Ariz. 246, ¶ 29.
¶7 On appeal, Erica argues there was insufficient evidence she failed to maintain a normal parental relationship with R.S. without just cause while she participated in drug rehabilitation "to overcome her long term meth addiction." She contends severing her rights "is contrary to public policy and sends a negative message to other parents that have children but need to take time away from them to treat a drug addiction." She maintains that by "ensuring" R.S. had a home with Robert, providing him with necessary items, and attempting to file for visitation rights after she completed rehabilitation, she successfully rebutted any presumption of prima facie abandonment in § 8-531(1). Erica also asserts Robert had agreed she could resume parenting once she was able to "get some time clean."
To the extent Erica relies on a purported agreement with Robert to support her position on appeal, we note the juvenile court was not bound by any such agreement. --------
¶8 We conclude there was sufficient evidence to support the juvenile court's findings. Based on the facts described above, the evidence showed Erica never had any regular contact or communication with R.S., nor did she maintain a normal parental relationship with him. And rather than arranging for R.S.'s care while she continued to use drugs and participated in rehabilitation, the record instead shows that the Department of Child Safety (DCS) placed R.S. with Robert and prohibited Erica from having unsupervised visits with him. And notably, Erica acknowledged to the court that R.S. had "been without [her] as a mother for at least a year and a half." In summary, Erica's arguments do not negate the reasonable evidence supporting the court's factual findings that she abandoned R.S.
¶9 Moreover, although Erica argues Robert "continually restricted" her ability to see R.S. until she attended rehabilitation, we note that, in light of the conflicting evidence regarding her efforts to visit R.S., it was up to the juvenile court to resolve any such conflicts in the evidence. See Jesus M., 203 Ariz. 278, ¶ 12; see also Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004) (juvenile court in "best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts"). Additionally, while we acknowledge that "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," Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 1 (App. 2013), based on the record before us, that did not occur here.
¶10 Erica further contends there was insufficient evidence to support the juvenile court's finding that termination was in R.S.'s best interests, maintaining that Robert's criminal history and involvement with drugs, the manner in which he testified at the hearing, his "unconventional" living situation, and his alleged relationships with multiple women "present[] a situation that is harmful to R.S." In making its best-interests finding, the court must consider "how the child would benefit from a severance or be harmed by the continuation of the relationship." Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. at 5. The court here considered Robert's lifestyle, noting R.S. lives with "a total of 13 [people, including Robert and Dedra] in a four bedroom mobile home" under conditions which are "crowded, but safe." It also expressly acknowledged that Erica had presented evidence of Robert's criminal history and past involvement with drugs, but found "credible" Robert's testimony "that he has been drug free for a period of years and that he is an appropriate parental figure for his children."
¶11 In addition, among the factors the juvenile court properly may consider in its best interests determination is whether a child is adoptable and evidence "that an existing placement is meeting the needs of the child." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 19 (App. 2004). The court here not only found Erica's recent "relapse to illegal drug use does not bode well for her long-term sobriety," but also found termination was in R.S.'s best interests because he is an adoptable child who has a "close attachment" to Dedra, who intends to adopt him. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶¶ 16-17 (2016) (adoption plan for child may support best-interests finding in private termination proceeding). The court did not err in considering R.S.'s adoptability and in giving Dedra's expressed interest in adopting him the weight to which the court deemed it was entitled. Again, Erica is essentially asking us to reweigh the evidence, including the disputed testimony about her current lifestyle in addition to the court's consideration of her admission that she had twice tested positive for methamphetamine since she had completed rehabilitation. We will not do so. Jesus M., 203 Ariz. 278, ¶ 12.
¶12 We affirm the juvenile court's ruling terminating Erica's parental rights to R.S.