Opinion
No. 1 CA-JV 18-0424
05-21-2019
MATTHEW M., Appellant, v. PRECIOUS M., A.M., J.M., Appellees.
COUNSEL David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Lazenby Law Firm PLLC, Phoenix By Christopher R. Lazenby Counsel for Appellee, Precious M.
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JS 517742
The Honorable Veronica W. Brame, Commissioner
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Lazenby Law Firm PLLC, Phoenix
By Christopher R. Lazenby
Counsel for Appellee, Precious M.
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
BROWN, Judge:
¶1 Matthew M. ("Father") appeals the juvenile court's order terminating his parental rights to his biological children, twins A.M. and J.M., pursuant to a petition filed by the children's mother, Precious M. ("Mother"). For the following reasons, we affirm.
BACKGROUND
¶2 Father and Mother were never married but lived together for four months in the fall of 2012. Father moved out in December and the children were born several months later. Father visited the children a few times during the first month of their lives, but then failed to maintain regular contact or provide financial support. In 2015, Mother filed a pro per petition to terminate Father's parental rights, alleging several grounds under Arizona Revised Statutes ("A.R.S.") section 8-533(B), including abandonment. The juvenile court dismissed the petition without prejudice.
¶3 In August 2016, the family court issued an order requiring Father to pay child support of $120 per month and granting him parenting time for two hours twice a week with the possibility of expanded hours and eventually overnight visits. Although Father participated in several visits between August and October 2016, none were overnight, and after November 2016, Father did not participate in any other visits. As for the child support order, Father never made any of the required payments.
¶4 In March 2018, Mother filed a petition to terminate Father's parental rights, alleging abandonment under § 8-533(B)(1) and that termination would be in the best interests of the children because her husband ("Stepfather") wanted to adopt them. At an evidentiary hearing on the contested severance, the juvenile court heard testimony from Mother, Polly Thomas (a licensed clinical social worker), Stepfather, and Father.
¶5 Mother testified that Father saw the children "approximately 15 times" before the parenting time order was issued in 2016. She also
testified that in November 2016, Father informed her by email that he would not be able to exercise his parenting time and would let her know when he could resume. Father subsequently arranged to pick up the children for an overnight visit on November 25, 2016, but Stepfather took the children back home because Father did not have car seats for them in his vehicle. The next email Mother received from Father regarding parenting time was sent January 11, 2017, and stated, "I will be resuming my parenting time here shortly. I will let you know when." Mother heard nothing else from Father about parenting time until after she filed the petition for termination in March 2018.
¶6 Mother further testified that under the parenting time order, she provided Father with email updates concerning the children; he regularly replied but rarely initiated communication. Related to these emails, Mother admitted she did not pass along messages Father sent such as "Dad misses you [and] tell them I love them" because the children did not know who he was, and she thought "he should have told them in person." Regarding support, Mother testified Father had not provided any form of support for the children, including the court-ordered child support, since they were born. She said he had asked at least once whether the children needed or wanted anything for Christmas, but there is no evidence Father sent, or attempted to send, any gifts. Finally, Mother addressed the children's relationship with Stepfather, stating she believed termination was in the children's best interests because he was "the only father that they know" and termination would allow him to adopt the children.
¶7 Father testified the last time he had contact with the children was in October 2016, explaining he did not attempt to enforce his parenting time after the failed November 2016 visit because he was homeless and thought it would not be in the best interests of the children to see him in that condition. Father admitted he did not let Mother know he was homeless, nor did he resume his visits as soon as he began receiving assistance from Veteran Affairs and was able "to get back on [his] feet." As to his lack of support and communication with the children, Father acknowledged he had not paid any child support, explaining he had been unable to afford the payments until recently, and he believed Mother would not have passed along any gifts or letters to the children nor would she have passed along messages such as "happy birthday." He added, however, that he is currently employed full-time and would be willing and able to pay child support if his rights were not terminated.
¶8 The parties stipulated to the contents of Polly Thomas' home study report that concluded Father had failed to maintain a parent-child
relationship and recommended termination of his parental rights. But Thomas acknowledged at trial that in preparing her study, she had been unable to contact Father and did not attempt to make an appointment through his counsel, so the study did not contain "Father's point of view."
¶9 The juvenile court granted Mother's petition, finding that Father abandoned the children and termination was in the children's best interests. Father timely appealed.
DISCUSSION
¶10 To terminate parental rights, a court must find by clear and convincing evidence at least one of the statutory grounds in § 8-533(B) and must find by a preponderance of the evidence that termination is in the children's best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). The "resolution of conflicting evidence is 'uniquely the province of the juvenile court' . . . even when 'sharply disputed' facts exist." Id. at 151, ¶ 18 (citations omitted). Thus, we will affirm if reasonable evidence and inferences support the court's findings of fact and the termination order is not clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).
¶11 Father argues the juvenile court erred "in finding that the facts alleged were sufficient to justify termination [due to abandonment]." 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.
¶12 Whether a parent has abandoned his or her child requires an objective analysis of the parent's conduct, not the parent's subjective intent. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 18 (2000). The juvenile court's order demonstrates that the court analyzed Father's objective conduct rather than his subjective intent in determining whether Father made more than minimal efforts to provide reasonable support, maintain regular contact, and provide normal supervision to the children.
The court supported its conclusion that Mother met her burden of proof with numerous factual findings, including (1) Father did not seek parenting time until 2016, when the children were three years old; (2) he "did not enforce parenting time at any time from 2017 to 2018" (3) he failed to provide any form of support since the children were born, even when he could afford to do so; and (4) he "states he wants to co-parent but did nothing to start the process."
¶13 Father asserts Mother "actively thwarted" Father's efforts to maintain a relationship with his children. Father raised this argument during the hearing, testifying that Mother was uncooperative and "actively tried anything and everything . . . to prevent [him] from ever seeing [his] children or having any sort of relationship with them." The juvenile court considered this argument and was not persuaded, finding the evidence established that Mother had maintained communication concerning the children with Father. Distinguishing Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), where we found termination improper because the mother had significantly interfered with the father's ability to maintain a normal parent-child relationship, the juvenile court explained that Father had not "vigorously asserted his legal rights" to see the children and Mother's "actions did not come close" to the interference we addressed in Calvin B.
¶14 Father contends Mother should have been more proactive in making sure he could communicate with the children. Father directs us to our recent decision in Alyssa W. v. Justin G., 245 Ariz. 599, 602, ¶ 13 (App. 2018), where we considered an appeal involving a private severance based on chronic alcohol abuse and held "in such a case, severance requires proof that services were offered . . . or that providing such services would be pointless." Father acknowledges the ground for termination was different in Alyssa W., but contends "the same logic [should] extend to the current matter." The holding in Alyssa W., however, does not apply to a termination based on abandonment. Here, although Mother could not "restrict [Father] from interacting with [the children] and then petition to terminate [his] rights for abandonment," Calvin B., 232 Ariz. at 297, ¶ 21, she was not required to show that Father had received or been offered any form of services that could have preserved the parent-child relationship between Father and the children, see Alyssa W., 245 Ariz. at 602, ¶ 15.
¶15 Father also asserts that his homelessness from October 2016 to October 2017 is "just cause" for his failure to maintain a normal parental relationship with the children. The court specifically considered Father's homelessness, finding the evidence demonstrated that "[e]ven when father got on his feet he still made the choice to have no contact, pay no child
support, send no gifts . . . or do anything to help the twins" and "[t]here was no request to enforce [p]arenting time." Reasonable evidence supports the court's conclusion. Father acknowledged he did not ever provide financial support to the children or send them any cards, gifts, or letters, even when he was not homeless. Furthermore, Father did not try to visit the children or contact them after he obtained a job and found a home in mid-2017. On these facts, the court's conclusion that Father's homelessness did not constitute just cause for his total lack of involvement in the children's lives was not clearly erroneous.
¶16 Father argues the totality of the circumstances do not support the court's finding that termination of his parental rights is in the best interests of the children. Termination is in a child's best interests if, considering the totality of the circumstances, the child will either benefit from severance or will be harmed if severance is denied. Alma S., 245 Ariz. at 150-51, ¶ 13.
¶17 Relying on Lawrence R. v. Arizona Department of Economic Security, 217 Ariz. 585, 587, ¶ 8 (App. 2008), Father asserts a best interests determination should be based on more than adoptability and argues the juvenile court "did not give proper weight" to other factors. Father is correct that the court must consider the totality of the circumstances, but Father's reliance on Lawrence R. for the proposition that adoptability alone cannot support a best interests finding is misplaced. Alma S., 245 Ariz. at 150, ¶ 14 (finding an argument substantively similar to Father's misconstrued Lawrence R.); Lawrence R., 217 Ariz. at 588, ¶ 8 (stating evidence of adoptability "does not require the fact finder to conclude that severance is in the child's best interests") (emphasis added). Furthermore, in Demetrius L., our supreme court explained that adoption "obligates the adopting parent legally and financially to the child" and "solidifies the adopting parent's right to exercise custody and control of the child in the future, serving to advance the child's wellbeing." 239 Ariz. at 5, ¶ 17.
¶18 We also reject Father's assertion that the juvenile court failed to consider the totality of the circumstances in evaluating bests interests. The court found that termination was in the children's best interests because Stepfather was meeting their "emotional, education, social and financial needs" and termination would permit him to adopt them. The court also explained that continuation of Father's parent-child relationship would be detrimental to the children because of Father's broken promises and failure to take any action to build a relationship with them since late 2016. Father does not challenge these findings on appeal, and they are supported by the record. We therefore conclude that reasonable evidence
supports the court's finding that termination of Father's parental rights was in the children's best interests.
CONCLUSION
¶19 We affirm the juvenile court's order terminating Father's parental rights.