Opinion
2 CA-JV 2022-0081
12-13-2022
In re Termination of Parental Rights as to A.G.
Domingo DeGrazia, Tucson Counsel for Appellant Gabriel Y. The Next Chapter Family Law Center, Tucson By Richard M. Wintory Counsel for Appellee Jahnie G. Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20200169 The Honorable Janet C. Bostwick, Judge
Domingo DeGrazia, Tucson Counsel for Appellant Gabriel Y.
The Next Chapter Family Law Center, Tucson By Richard M. Wintory Counsel for Appellee Jahnie G.
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor 1
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Appellant Gabriel Y. challenges the juvenile court's order of June 14, 2022, terminating his parental rights to his daughter, A.G., born February 2012, on the ground of abandonment. See A.R.S. § 8-533(B)(1). On appeal, Gabriel argues the court abused its discretion because there was insufficient evidence to support termination. He contends that he "made more than minimal efforts to support and communicate" with A.G. and that A.G.'s mother, Jahnie G., "actively interfered with [his] efforts." We affirm.
¶2 We view the evidence in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec, 218 Ariz. 205, ¶ 2 (App. 2008). After being convicted of aggravated assault and unlawful flight from law enforcement for fleeing while driving after drinking, Gabriel was incarcerated for approximately the first six years of A.G.'s life. During that time, his family members, primarily his mother, spent time with A.G., but Jahnie asked them not to talk to A.G. about Gabriel, wanting to tell A.G. herself "when the time was right." Gabriel wrote letters to A.G., some sent directly to Jahnie and some "passed" through his mother to Jahnie.
¶3 A few years before Gabriel's release, Jahnie began a paternity action in which Gabriel participated, although his request for visitation was denied due to his incarceration. After his release in 2018, Gabriel petitioned for visitation in the paternity action. He was granted visitation, beginning with therapeutic parenting time, after which Jahnie supervised visits until the trial court ordered unsupervised visits. Visits initially went well, but Gabriel was late to or missed visits and there was an incident in which A.G. believed Gabriel was drinking and driving. A.G. ultimately did not want to be forced to see Gabriel. Gabriel paid court-ordered child support from March 2019 to October 2019 and bought gifts for A.G.
¶4 In January 2020, Gabriel was again arrested after he struck a man while driving and left the scene-the victim ultimately died. Gabriel was convicted of leaving the scene of an accident causing physical injury and sentenced to two years' imprisonment. Jahnie sought and obtained a 2 temporary order to stop Gabriel's parenting time. The court set a hearing on the order for January 17, but Gabriel did not appear and the order was extended "until further order of the Court."
¶5 Gabriel asked family members to give A.G. a present on his behalf for her birthday in February. After they did, Jahnie "asked [them] not to do that anymore, because she felt it wasn't appropriate." In April, Gabriel's mother filed a petition in the paternity proceeding seeking third-party visitation with A.G., and the trial court granted supervised visitation. It ordered Gabriel's mother not to "give the child letters, notes, emails, texts or any other types of communications from" Gabriel and not to discuss his situation with her. Gabriel was ordered to appear for a hearing in this proceeding but failed to do so. After his incarceration in January 2020, according to Jahnie, Gabriel also failed to "communicate with [A.G.] at all."
At the evidentiary hearing, Gabriel testified first that he had sent two cards, between January 2020 and May 2021, and later testified he had sent four, through his mother, although he had not retained any evidence of having sent them.
¶6 Jahnie filed a petition for termination of Gabriel's parental rights in December 2020. He called her that same month, but she refused to speak to him. He called a few times more, and Jahnie sought and obtained an order of protection prohibiting him from contacting her except through counsel or legal proceedings. The order did not prohibit contact with A.G. After a multiple-day evidentiary hearing on the petition to terminate, the juvenile court granted the petition on the ground of abandonment. It found that, after his arrest in January, Gabriel had failed to "assert his rights" and had "stopped all contact" with A.G.
¶7 On appeal, Gabriel contends the juvenile court abused its discretion in terminating his parental rights because there was insufficient evidence of abandonment. He argues he "made more than minimal efforts to support and maintain regular contact" with A.G. but Jahnie "took steps to limit [his] ability to contact" A.G.
¶8 To sever a parent's rights, the juvenile court must find by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that severing the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005). We do not reweigh the evidence on appeal; rather, we 3 defer to the court's factual findings because, as the trier of fact, that court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep 't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). Consequently, we will affirm the order if reasonable evidence supports the factual findings upon which the order is based. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002).
¶9 In order to establish that Gabriel had abandoned A.G., Jahnie was required to show he had failed "to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). This "includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child." Id. And, "[f]ailure 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. When a parent is incarcerated, "he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary." Michael J. v. Ariz. Dep't of Econ. Sec, 196 Ariz. 246, ¶ 22 (2000) (quoting In re Pima Cnty. Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994)).
¶10 In arguing the juvenile court abused its discretion in determining he had abandoned A.G., Gabriel focuses on favorable testimony rather than the contrary evidence cited by the court. But we do not reweigh the evidence, Jesus M., 203 Ariz. 278, ¶ 12, and will defer to the court's resolution of conflicting inferences if supported by the record, In re Pima Cnty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). As detailed above, the record supports the court's determination that Gabriel had "chosen not to have contact with [A.G.] or assert his rights since January 7, 2020." And, we agree with the court that in contrast to the father in Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 29 (App. 2013), on which Gabriel also relies, he "has not pursued his rights to the best of his ability." Further, although Jahnie did not facilitate interaction between Gabriel and A.G. after his incarceration, reasonable evidence supports the court's conclusion that she "did not persistently or substantially restrict interaction" with A.G., as did the mother in Calvin B. Id. ¶ 21.
¶11 For these reasons, we affirm the juvenile court's order severing Gabriel's parental rights. 4