Opinion
No. 1 CA-JV 15-0252
02-02-2016
TIMOTHY R., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.D., Appellees.
COUNSEL Robert D. Rosanelli, Phoenix Counsel for Appellant Arizona Attorney General's Office, Tucson By Cathleen E. Fuller Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD 510963
The Honorable Karen L. O'Connor, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli, Phoenix
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined. THUMMA, Judge:
¶1 Timothy R. (Father) appeals from the superior court's order terminating his parental rights to N.D. Father argues the court abused its discretion by finding termination was appropriate based on abandonment. Because Father has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the evidence in a light most favorable to sustaining the superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207 ¶ 2 (App. 2008).
¶2 N.D.'s mother (Mother) became pregnant with N.D. in early 2012, and soon after moved and terminated contact with Father. Although Father searched for Mother through social media, he was unable to contact her for the remainder of the pregnancy. N.D. was born September 30, 2012 and Father learned of the birth soon after.
Mother's parental rights to N.D. were terminated in January 2015, and she is not a party to this appeal.
¶3 When N.D. was three months old, Mother invited Father to spend three days at her apartment to spend time with N.D. After the first night, however, Mother had Father leave. Father later returned to the apartment to attempt to visit N.D., but Mother had moved. Father did not have any more contact with Mother or N.D., and in February 2013, he moved to Florida.
¶4 In March 2013, Father was convicted in Florida of burglary and placed on probation for two years. Later in 2013, Father was convicted of additional felonies in Florida, his probation was revoked and he was sentenced to 30 months in prison with an early release date of November 11, 2015.
¶5 Back in Arizona, in April 2013, the Arizona Department of Child Safety (DCS) received reports of violence between Mother and N.D.'s maternal grandmother. DCS took N.D. into care, alleging Mother was under the influence of cocaine, had threatened to throw N.D. into traffic and failed to provide N.D. with basic necessities and supervision. DCS filed a petition alleging N.D. was a dependent child, alleging Father was unable to parent due to a failure to maintain a normal parental relationship with N.D. N.D. was found dependent as to Father in early July 2013, and the court adopted a family reunification case plan.
¶6 Father learned N.D. was in DCS custody in December 2013. Because Father was incarcerated in another state at that time, DCS was not able to provide him any services. A DCS case manager contacted Father in January 2014 to inform him he could contact N.D. by sending letters to the case manager and that Father should participate in any services available to him in Florida. For more than a year, Father made no attempt to communicate with N.D. or his case manager. Finally, in February 2015, Father sent N.D. two letters.
¶7 In February 2014, the superior court changed the case plan to severance and adoption. In March 2014, DCS filed a motion to terminate, claiming Father had abandoned N.D. An adjudication hearing was held in July 2015, with Father appearing telephonically from prison in Florida. Father admitted he knew N.D. was in DCS custody as early as December 2013 and that he made no attempt to contact N.D. or DCS, until sending two letters in February 2015. The DCS caseworker testified that Father did not provide any support for N.D., made no attempt to contact him for more than a year, sent no cards or gifts, sent only two letters after DCS had moved to terminate his parental rights and had not attempted to contact N.D. again since that time.
¶8 Father testified that he wants to parent N.D. upon his release from prison and that he is willing to participate in any programs required for him to do so. Although he recognized he should have written letters more often, Father claimed he failed to maintain a relationship with N.D. because Mother kept the child from him and because he was in prison.
¶9 After taking the matter under advisement, the superior court terminated Father's parental rights. This court has jurisdiction over Father's timely appeal pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235, 12-120.21(A)(1) and -2101(A)(10) (2016) and Arizona Rules of Procedure for the Juvenile Court 103-04.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶10 As applicable here, to terminate parental rights, a court must find by clear and convincing evidence that at least one statutory ground articulated in A.R.S. § 8-533(B) has been proven and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," this court will affirm an order terminating parental rights so long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted).
¶11 "Evidence sufficient to justify the termination of the parent-child relationship shall include . . . [t]hat the parent has abandoned the child." A.R.S. § 8-533(B)(1). "'Abandonment' means the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). It "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." Id.
¶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. Imprisonment does not provide a legal defense to a claim of abandonment, but it is a factor to be considered. Id. at 250 ¶ 22. "[W]hen circumstances prevent the . . . father 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" to maintain his parental interests. Id. (citation omitted).
¶13 In this case, the record shows Father made two attempts to contact N.D. shortly after his birth. For more than a year after that, however, Father made no other attempts to visit, and only wrote two letters. Father wrote both letters in February 2015, nearly one year after DCS moved to terminate his parental rights and at a time the trial on the motion to terminate was being scheduled.
¶14 Father argues that he would have provided support and maintained contact with N.D. but for his imprisonment and Mother's actions. The evidence does not support this argument. Although Father's circumstances prevented him from maintaining an ideal relationship, it was still his responsibility to maintain contact with N.D. and establish the best relationship possible under the circumstances. See Michael J., 196 Ariz. at 250 ¶ 22. Father failed to do so.
¶15 DCS contacted Father in January 2014 to inform him that N.D. was in foster care and that Father could contact him through DCS. Father waited more than a year before making any attempt to contact N.D. Then, the only contact Father made was to write two letters in one month. At the time of the hearing in July 2015, Father had not sent any additional letters. Two letters, when faced with an impending termination trial and after more than a year without any contact, are less than "minimal efforts to support and communicate with the child." See A.R.S. § 8-531(1). On this record, the court did not err in granting the motion to terminate Father's parental rights.
Although not challenged by Father on appeal, the superior also properly found termination was in N.D.'s best interests. See Kent K., 210 Ariz. at 288 ¶ 41. Consistent with the evidence presented at the hearing, the court found N.D. was in a stable, permanent home with a potential adoptive family that meets all of his needs. --------
CONCLUSION
¶16 The superior court's order terminating Father's parental rights to N.D. is affirmed.