Opinion
No. 2 CA-JV 2014-0088
12-02-2014
DIJON Y., Appellant, v. DEPARTMENT OF CHILD SAFETY AND A.Y, Appellees.
COUNSEL Platt & Merritt Law, PLLC, Coolidge By Melanie Merritt Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pinal County
No. JD201300052
The Honorable Brenda E. Oldham, Judge
AFFIRMED
COUNSEL
Platt & Merritt Law, PLLC, Coolidge
By Melanie Merritt
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.
KELLY, Presiding Judge:
¶1 Dijon Y. appeals from the juvenile court's order terminating his rights to his daughter, A.Y., born in November 2010, on the grounds of abandonment pursuant to A.R.S. § 8-533(B)(1). Dijon argues that, because he is in pre-trial custody for charges resulting from the death of A.Y.'s mother, he had just cause for his failure to maintain a normal parental relationship with A.Y. We affirm.
¶2 A.Y.'s guardian ad litem filed a dependency petition after Dijon was arrested for the April 17, 2013, shooting death of A.Y.'s mother. The petition alleged that Dijon had not established his paternity of A.Y. and that A.Y. was dependent as to him based on abuse and neglect. The juvenile court granted the petition, finding A.Y. dependent and setting a case plan of family reunification. Approximately six months later, the Department of Child Safety (DCS) filed a motion for termination of Dijon's parental rights on the basis of abandonment. After a contested hearing, the court severed Dijon's parental rights to A.Y., concluding Dijon had "failed to maintain a normal parental relationship with [A.Y.] without just cause."
¶3 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination of the parent's rights 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, 110 P.3d 1013, 1022 (2005). "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] 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, 219 P.3d 296, 303 (App. 2009) (citations 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. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶4 Pursuant to A.R.S. § 8-533(B)(l), the juvenile court was authorized to terminate Dijon's parental rights upon a finding that he had abandoned A.Y. Abandonment is:
[T]he 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.
¶5 Abandonment is measured objectively by examining the parent's conduct, not the parent's subjective intent. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 18, 995 P.2d 682, 685-86 (2000). Additionally, in determining whether the abandonment standard has been met, "a court should consider each of the stated factors—whether a parent has provided 'reasonable support,' 'maintain[ed] regular contact with the child[,]' and provided 'normal supervision.'" Kenneth B. v. Tina B., 226 Ariz. 33, ¶ 18, 243 P.3d 636, 640 (App. 2010), quoting § 8-531(1) (first alteration in
Kenneth B.). 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.'" Michael J., 196 Ariz. 246, ¶ 22, 995 P.2d at 686, quoting In re Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 97, 876 P.2d 1121, 1132 (1994).
¶6 Dijon argues on appeal that the juvenile court "fail[ed] to consider the 'just cause' exception," asserting that the court's abandonment finding was based entirely upon his pretrial detention. He contends that detention cannot alone support an abandonment finding and maintains "[t]here is no evidence" that he had abandoned A.Y. before that date, and that he "had a regular and ongoing relationship" with her. Moreover, he claims, as part of his criminal proceedings he had been ordered to have no contact with his daughter and thus could not have maintained any relationship with her.
¶7 Djion incorrectly suggests "just cause" constitutes an exception to abandonment as defined by § 8-531(1). Instead, a showing of just cause merely rebuts the presumption of abandonment based on a parent's failure to maintain a normal parental relationship for six months. § 8-531(1); see also Universal Underwriters Ins. Co. v. State Auto. & Cas. Underwriters, 108 Ariz. 113, 115, 493 P.2d 495, 497 (1972) ("prima facie evidence" creates rebuttable presumption of law). Although the juvenile court stated that Dijon had abandoned A.Y. without just cause and that he had not maintained a normal parental relationship with his daughter, it did not base its abandonment finding solely on the presumption in § 8-531(1). The court also found, consistent with the definition of abandonment, that Dijon had not provided reasonable support, maintained regular contact, or provided normal supervision to A.Y.
¶8 Even assuming, without deciding, that pretrial detention for the murder of the child's mother constitutes "just cause" for failing to maintain a parental relationship with the child, the evidence nonetheless supports the juvenile court's abandonment finding. Although Dijon claimed he had a nurturing and loving
relationship with A.Y. before her mother's death, the court was free to reject that testimony, particularly in light of other evidence presented. See In re Maricopa Cnty. Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994) (juvenile court "in the best position to measure the credibility of witnesses"). That evidence showed that Dijon had not established his paternity at A.Y.'s birth or attempted to do so at any time thereafter, provided money for food or clothes, or lived with A.Y. and her mother. And, after his arrest, he did not read or respond to letters from DCS concerning A.Y., inquire about A.Y.'s well-being, or attempt to provide support of any kind.
¶9 We affirm the juvenile court's order terminating Dijon Y.'s parental rights.