Opinion
No. 1 CA-JV 20-0037
07-30-2020
DONTAE M., Appellant, v. SHIRLEEN M., M.M., D.M., Appellees.
COUNSEL Maricopa County Legal Defender's Office, Phoenix By Jamie R. Heller Counsel for Appellant Roland Arroyo, Attorney at Law, Waddell Counsel for Appellee Shirleen 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JS19866
The Honorable Joshua Yost, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Legal Defender's Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Roland Arroyo, Attorney at Law, Waddell
Counsel for Appellee Shirleen M.
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.
McMURDIE, Judge:
¶1 Dontae M. ("Father") appeals the juvenile court's judgment terminating his parental rights to his two children in common with Shirleen M. ('Mother"), M.M. and D.M. (collectively, the "children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father married in 2007, and the children were born in 2008 and 2010. In 2012, Mother and Father separated, and Mother moved with the children to California. Over the next year, Father had intermittent contact with the children when he would visit them in California, or Mother would bring them to Father. But communication and contact between Father, Mother, and the children broke down in 2013 when father was arrested and incarcerated in Illinois pending trial on drug-related charges. Mother maintained some contact with members of Father's family, including his sister and his daughter from another relationship, "Jojo."
¶3 After Father was acquitted of the criminal charges and released in early 2015, Father's sister arranged a three-way telephone call between Mother and Father. During the call, Father asked to see the children in person, but Mother related that she would instead reintroduce him to the children through phone or video contact. After the phone call, communication between Mother and Father broke down again, and Father had no direct contact with Mother or the children from that point forward. Mother and the children remained in intermittent contact with Jojo.
¶4 Around the time of the three-way call, Mother met her current husband ("Stepfather"). Eventually, Mother and Stepfather began a relationship and married after Mother obtained a default divorce from Father. Mother and the children live in Arizona with Stepfather and his son from another relationship.
¶5 In December 2018, Mother filed a petition to terminate Father's parental rights alleging, among other things, that Father had abandoned the children under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1). The court held a two-day evidentiary hearing on Mother's petition in November and December 2019. During the hearing, Mother testified that Father had no contact with the children after a few visits in 2012, denied that she had attempted to prevent Father from having
access to the children, and asserted she had provided Jojo with her Arizona address and phone number.
¶6 Mother also testified that she decided to file the petition to terminate Father's parental rights so that Stepfather could adopt the children. Mother opined Stepfather was "amazing" with the children. He supported the children financially, participated in the children's school life and extracurricular activities, and had formed a bond with the children. Stepfather also testified he viewed the children as his own and wanted to adopt them. Both Mother and Stepfather testified that the children called Stepfather "Dad."
¶7 In response, Father argued that Mother's intentional interference in his relationship caused him to lose contact with the children. See Calvin B. v. Brittany B., 232 Ariz. 292, 296-97, ¶¶ 21-26 (App. 2013). To support his theory, Father and several members of his family testified Mother changed her phone number several times to avoid them, including immediately after the three-way call. They also testified Mother had blocked Father's sister on social media and either failed to reach out to Father or his family to inform them of her location or provided information the family believed was fake. Father also asserted that he had attempted to hire a lawyer in California to assist him in locating Mother, but that his relationship with the lawyer deteriorated, and he did not want to hire anyone else to search for Mother.
¶8 During his testimony, Father admitted he was aware of Jojo's contact with Mother and the children, including video calls, but refused to engage in them because he wanted to see the children in person. Father also admitted that Jojo informed him of Mother's Arizona address and that he was aware Jojo had been given Mother's phone number. When confronted about this information, Father explained that he thought the address was not Mother's and that he was "frustrated and tired" with looking for Mother. He indicated that he did not try to call Mother's number and decided to leave contacting Mother to other members of his family. Father explained that he believed it was Mother's responsibility to reach out to him to have contact with his children because "[s]he left."
¶9 In January 2020, the juvenile court issued an order terminating Father's parental rights to the children. The court found Mother had proven the abandonment ground by clear and convincing evidence based on Father's lack of contact with the children for nearly six years. In doing so, the court rejected Father's argument that Mother had interfered with his ability to continue his relationship with the children. The court
found Father had not made active efforts to assert his rights to the children when presented with opportunities to do so, and that "Mother's actions [did] not rise to the level of interference required to establish a defense to abandonment." The court concluded: "Mother moved to Arizona with her children and she and Father lost track of each other. This is a far cry from an intentional act of interference." The court also found that termination of Father's parental rights was in the children's best interests because the children would benefit from adoption by Stepfather. The court opined:
Based on the evidence presented, the children are adoptable because there is a step-father who is ready, willing and able to provide them with the day to day love and support they need. The court heard testimony that step-father is "awesome with the kids." He takes them to dance and sports without being asked. He works and takes care of the family financially. He provides stability so Mother can work outside the home. He treats his step-children and his biological children the same. The children have bonded to him and love him.
Father appealed, and we jurisdiction under A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶10 Father does not dispute that the abandonment ground was proven by clear and convincing evidence. But he challenges the juvenile court's finding that termination of his parental rights was in the children's best interests. Father contends the court erred by (1) ignoring evidence that Mother had engaged in conduct designed to undermine his and his family's attempts to build a relationship with the children; and (2) failing to account for the benefit provided by allowing the children to have a relationship with Father and his family. Father claims that terminating his rights so that Stepfather can adopt the children will not provide a benefit because Stepfather "was not going to treat the children differently if [Father's] rights were not terminated."
¶11 "Because the juvenile court is in the best position to weigh evidence and assess witness credibility, we accept the juvenile court's findings of fact if reasonable evidence and inferences support them, and will affirm a severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). Once the juvenile court finds a parent unfit under at least one statutory ground for termination, "the interests of
the parent and child diverge," and the court proceeds to balance the unfit parent's "interest in the care and custody of his or her child . . . against the independent and often adverse interests of the child in a safe and stable home life." Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 35 (2005). "[A] determination of the child's best interest must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). The court "must consider the totality of the circumstances existing at the time of the severance determination, including the child's adoptability and the parent's rehabilitation." Alma S. v. DCS, 245 Ariz. 146, 148, ¶ 1 (2018).
It is well established in state-initiated cases that the child's prospective adoption is a benefit that can support a best-interests finding. A child may likewise reap benefits from adoption, warranting a best-interests finding primarily on that basis, even in a private severance action and when the child is not a ward of the state.
Demetrius L., 239 Ariz. at 4-5, ¶ 16 (citation omitted).
¶12 Here, the juvenile court found the children would benefit from termination of Father's parental rights, observing: "[T]he children are adoptable because there is a step-father who is ready, willing and able to provide them with the day to day love and support they need." Reasonable evidence supports this finding. Stepfather testified that the purpose of Mother seeking termination of Father's parental rights was to allow him to adopt the children. Testimony presented at the termination hearing established Stepfather is already fulfilling the role of a parent in the children's lives. He sees the children as his own, provides for them financially, aides them both in their schoolwork and extracurricular activities, and attends parent-teacher conferences at the children's school. Under these circumstances, permitting termination to allow Stepfather to adopt the children would add permanency and stability to the parent-child relationship that Stepfather and the children have already developed. See Demetrius L., 239 Ariz. at 5, ¶ 20. It also promotes the children's well-being by formalizing Stepfather's right to exercise custody and control of the children in the future. See id. at ¶ 17. These are benefits that support a best-interests finding in favor of termination, especially considering Father's lack of a relationship with the children.
¶13 Father's assertions on appeal do not undermine this conclusion. The court did not ignore the evidence. Instead, it considered
and rejected Father's claims and specifically found Mother did not intentionally interfere with Father's—and, by extension, his family's—relationship with the children. And although the presence or opportunity to grow a bond between a parent or a parent's family and a child is a factor that may weigh against a best-interests finding, it is not dispositive. Thus, Father's arguments are a request for this court to reweigh the evidence underlying the court's findings, which we will not do. See Alma S., 245 Ariz. at 151, ¶ 18 ("The appellate court's role is not to weigh the evidence." (quoting State v. Fischer, 242 Ariz. 44, 52, ¶ 28 (2017))). Accordingly, the court did not abuse its discretion by finding that terminating Father's parental rights was in the children's best interests.
CONCLUSION
¶14 We affirm the juvenile court's judgment.