Opinion
No. 1 CA-JV 16-0107
11-22-2016
ANGELICA D., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.D., Appellees.
COUNSEL Mohave County Legal Defender's Office, Kingman By Eric Devany Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015JD201300065
The Honorable Richard Weiss, Judge
AFFIRMED
COUNSEL Mohave County Legal Defender's Office, Kingman
By Eric Devany
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Christopher T. Whitten joined. CATTANI, Judge:
The Honorable Christopher T. Whitten, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Angelica D. ("Mother") appeals the superior court's ruling terminating her parental rights to her daughter K.D. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 K.D. was born in California in August 2008. Mother was a Mexican citizen who, at the time, had lived in the United States for more than 10 years.
¶3 In early 2013, Mother returned to Mexico to visit a sick relative, taking K.D. with her. In May, Mother sent K.D. back to live in the U.S., first with a friend and then with K.D.'s adult sister ("Sister"). Mother did not, however, provide Sister with the legal documentation necessary to act as K.D.'s guardian to enroll K.D. in school or secure medical care. In the absence of a legal caregiver, the Department of Child Safety ("DCS") took K.D. into care in late 2013. Sister immediately informed Mother of K.D.'s removal.
¶4 After contacting Mother in September 2013, DCS was unable to reach her again for months, and Mother continued to have only limited contact with DCS throughout the dependency proceedings. Her contact with K.D. was similarly sparse and sporadic. Mother had no in-person visits with K.D. after removal. She attempted to enter the U.S. several times, but was detained and deported on each occasion.
¶5 DCS arranged telephonic visits facilitated by a translator in 2014. Although Mother called in on a few occasions, she did not maintain contact for months at a time. DCS would reinstate the conference line when contacted by Mother, but the cycle repeated itself.
¶6 Mother did not provide K.D. with any monetary support throughout the proceedings. She sent K.D. some drawings and a birthday email in the weeks leading up to the severance hearing, but otherwise did not send cards or gifts.
¶7 DCS moved for severance on grounds of abandonment. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1). After an evidentiary hearing at which Mother testified telephonically, the superior court found that Mother had abandoned K.D. and that severance would be in K.D.'s best interests, and thus terminated Mother's parental rights to K.D.
Absent material revisions after the relevant date, we cite a statute's current version.
At the same hearing, the court found K.D. to be dependent as to Mother based on neglect. Mother does not challenge the dependency ruling. The court also terminated K.D.'s father's parental rights, but he is not a party to this appeal. --------
¶8 Mother timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶9 The superior court may terminate the parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance, and a preponderance of the evidence shows severance to be in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the court's severance ruling for an abuse of discretion, deferring to its credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶10 One statutory ground for severance is that "the parent has abandoned the child." 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). Abandonment is assessed objectively based on the parent's conduct, not her subjective intent. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18 (2000). The key consideration is whether the parent, under the unique circumstances of the case, "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." Id. at ¶¶ 18, 20; see also A.R.S. § 8-531(1).
¶11 Mother argues that the superior court erred because her conduct reflects her efforts to stay in contact with K.D. and maintain a parental relationship; she does not challenge the superior court's best interests finding. She cites her repeated attempts to enter the U.S., her telephonic visits with K.D., and the birthday email she sent. But Mother did not provide any support for K.D. for a period of years, and her contact with K.D. was inconsistent at best. Over the two and one-half years K.D. had been in out-of-home care, Mother never saw her in person, spoke to her on the phone on only a few occasions, sent only a few drawings, and dropped out of contact entirely for months at a time. Although we have no cause to doubt Mother's sincere desire to maintain her relationship with K.D., the record supports the court's finding that Mother failed to maintain regular contact, failed to provide support or supervision, and failed to maintain a normal parental relationship with K.D.
¶12 Mother suggests that DCS obstructed her efforts to contact K.D., that her case manager never offered services or otherwise attempted to help her, and that DCS did not provide a phone number at which to call K.D. As our supreme court has noted, although DCS "may not unduly interfere with" a parent's efforts to maintain a relationship with a child, "[t]he burden to act as a parent rests with the parent, who should assert [her] legal rights at the first and every opportunity." Id. at 251, ¶ 25. Here, the record reflects that, although DCS offered Mother the opportunity to maintain consistent contact with K.D., Mother failed to engage more than occasionally. And although Mother faced immigration-based obstacles to returning physically to the U.S. to care for K.D., she was nevertheless obligated to "act persistently to establish the relationship however possible," and the superior court reasonably concluded that she had failed to do so. Id. at 250, ¶ 22. Accordingly, the court did not abuse its discretion by finding severance to be warranted based on abandonment.
CONCLUSION
¶13 The judgment is affirmed.