Opinion
2 CA-JV 2022-0079
11-15-2022
In re Termination of Parental Rights as to A.V.A. and A.M.,
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellee Jason M. Randle Palmer & Bernays, Tucson By Uri G. Palmer Counsel for Appellee Sarina V.A.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20210053 The Honorable Joan Wagener, Judge
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellee Jason M.
Randle Palmer & Bernays, Tucson By Uri G. Palmer Counsel for Appellee Sarina V.A.
Judge Brearcliffe authored the decision of the Court, in which Presiding
Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1 Appellants A.V.A., born August 2009, and A.M., born December 2012, appeal from the juvenile court's order denying a petition for termination of the parental rights of their father, Jason M. They contend that the court's ruling was not supported by the evidence and that it erred by making a best-interests determination "without having first made a finding of parental unfitness." 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). Jason and the children's mother, Sarina V.A., were married in 2011. Thereafter, Jason moved to Texas for work, and Sarina filed for dissolution of the marriage in 2014. After the dissolution the trial court ordered parenting time for Jason, subject to his use of a Soberlink device. In August 2020 Jason visited the children and the following day Sarina received a report from Soberlink that he had tested positive for alcohol before the visit. Sarina filed a motion for an emergency change in parenting time, which was granted. The court in the dissolution proceeding ordered Jason to subscribe to real-time reporting from Soberlink as a condition of continued visitation, but allowed phone calls. Jason could not afford the Soberlink reporting and failed to pay, so his account was cancelled in September 2020. Jason had no further visits with the children, and his visitation was later suspended by the court.
According to testimony at the termination hearing, Soberlink is a "device . . . connected to [a] phone" that uses "facial recognition" and a breathalyzer to record and report the presence of alcohol. "[T]here was a monthly subscription cost," with options for "next-day . . . and real-time reporting."
¶3 In January 2021, Jason sought treatment for alcoholism. He entered an inpatient program for "detox" and continuing intensive outpatient treatment, with which he is compliant.
¶4 In April 2021, Sarina filed a petition to terminate Jason's parental rights on grounds of abandonment and Jason's inability to discharge his parental responsibilities due to a history of alcohol abuse. See A.R.S. § 8-533(B)(1), (3). Jason was served with the petition in June. At a contested hearing on the petition, evidence showed that Jason, although "inconsistent" and calling "at the wrong time and date when the girls were not available," attempted some phone contact with the children. He sent the children a few cards, sent gifts for Christmas in 2021, and gave each child a necklace. According to statements he and the children made to the investigator who did a social study on the family, he and the children also had exchanged letters through his mother, with whom the children have a good relationship.
¶5 After the hearing, the juvenile court determined that although Sarina had "established prima facie evidence of abandonment," Jason had rebutted that evidence. The court therefore concluded Sarina had not proven the alleged grounds by clear and convincing evidence or that termination was in the children's best interests. The children timely appealed that decision.
¶6 To sever a parent's rights, the juvenile court must find there is clear and convincing evidence at least one of the statutory grounds for termination exists, and that a preponderance of the evidence establishes severing the parent's rights is in the children's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005). We do not reweigh the evidence on appeal; rather, we 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). And, as previously noted, we view the evidence in the light most favorable to upholding the court's order. See Christy C. v. Ariz. Dep't of Econ. Sec, 214 Ariz. 445, ¶ 12 (App. 2007).
¶7 The children first argue the juvenile court erred in denying the petition for termination on the ground of abandonment. They contend that the court abused its discretion in finding Jason had rebutted the prima facie evidence of abandonment presented at the hearing because there was insufficient evidence to support such a finding. According to A.R.S. § 8-531(1):
The children do not challenge the juvenile court's determination that the ground of chronic substance abuse under § 8-533(B)(3) was not proven.
"Abandonment" means 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.When a prima facie case of abandonment is presented, it creates a presumption in favor of the moving party. Id.; see also In re Pima Cnty. Juv. Action No. S-1182, 136 Ariz. 432, 433 (App. 1983) (concluding father's evidence sufficient to "rebut the presumption" of abandonment). The burden then shifts to the parent to rebut the presumption of abandonment. See Ariz. R. Evid. 301.
¶8 In regard to rebutting a presumption, our supreme court has "adopted the 'bursting bubble' theory of presumptions." Golonka v. Gen. Motors Corp., 204 Ariz. 575, ¶ 48 (App. 2003). Under this theory, "even if the fact-finder might disbelieve the rebuttal evidence, the 'bubble is burst,' and the existence or non-existence of the presumed fact must be determined as if the presumption had never operated in the case." Id. Because nothing in the "legislative enactment" of the abandonment presumption "compels a conclusion that the presumption shifts the burden of persuasion" as to abandonment, that presumption merely shifts the burden of producing evidence. Id. ¶ 50.
¶9 As noted above, the juvenile court found that Sarina had "established prima facie evidence of abandonment." But, it then found Jason had rebutted that evidence with evidence that he had "made attempts to call the children" and had "sent gifts, cards and letters to the children beginning in May 2021." The court also noted Jason's inability "to afford the costs associated" with Soberlink. And it found that, although Jason had not sought modification of the order suspending his parenting time, any such effort "would have been futile" in view of the pending severance action.
¶10 The children argue that "the evidence does not support any of the [juvenile] court's findings." We disagree. As Jason points out, evidence relating to Jason's failed attempts to call the children and their exchanging letters through his mother, detailed above, was introduced at the hearing in the social study. Jason testified as to his inability to pay for Soberlink services. And, the court took judicial notice of the minute entry in which the dissolution court suspended parenting time pending resolution of the proceedings in the juvenile court. Thus, the children's arguments as to the lack of evidence amounts to a request for this court to reweigh the evidence presented at the hearing, which we will not do. See Jesus M., 203 Ariz. 278, ¶ 12.
¶11 We also disagree with the children's further contention that, even if supported by the evidence, these findings are not "sufficient to support the [juvenile] court's finding that the evidence of abandonment was rebutted." The presumption here, as with other presumptions, merely allows the party seeking a finding of abandonment to prevail if the other party sits silent. See State v. Lewis, 236 Ariz. 336, ¶ 15 (App. 2014) (citing Seiler v. Whiting, 52 Ariz. 542, 548 (1938)). As stated in Seiler,
a presumption so declared by the law is only raised by the absence of any real evidence as to the existence of the ultimate fact in question. It is not in and of itself evidence, but merely an arbitrary rule imposed by the law, to be applied in the absence of evidence, and whenever evidence contradicting the presumption is offered the latter disappears entirely, and the triers of fact are bound to follow the usual rules of evidence in reaching their ultimate conclusion of fact.52 Ariz. at 548-49. That is, as detailed above, once the opponent of a presumption produces evidence to rebut the presumption, even if that evidence might be disbelieved by a fact-finder, the "bubble" of the presumption is burst; the burden of persuasion remains with the petitioning party to establish abandonment by clear and convincing evidence. See Golonka, 204 Ariz. 575, ¶ 48; Kent K., 210 Ariz. 279, ¶ 32. Here, viewed in the light most favorable to upholding the juvenile court's ruling, see Christy C, 214 Ariz. 445, ¶ 12, Jason presented evidence he had not abandoned the children, and he thereby rebutted the presumption of abandonment.
¶12 We also reject the children's contention that the juvenile court erred by "rel[ying] on several post-petition actions to support its findings." In support of this argument they cite cases decided by our courts before the current definition of abandonment under § 8-531 was adopted. See In re Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 8 (1990); In re Maricopa Cnty., Juv. Action No. JS-1363, 115 Ariz. 600, 601-02 (App. 1977); 1998 Ariz. Sess. Laws, ch. 276, §§ 12, 14; 1996 Ariz. Sess. Laws, ch. 291, §§ 2, 3; 1994 Ariz. Sess. Laws, ch. 116, § 4. We need not determine the extent to which a court may consider such actions under the current statutory scheme, however, because much of the conduct on which the court relied took place before Jason received notice of the petition for termination.
¶13 The juvenile court's findings suggest it placed import on attempts to call the children, and, as the court noted, "[t]he record is not clear how many times he called" or when those calls occurred. Likewise, the court's finding that Jason "sent gifts, cards and letters to the children beginning in May 2021," a month before service of the petition for termination, is supported by the record. Although evidence about the cards varies, the record suggests that this may have begun even earlier than May. Jason's inability to afford Soberlink services, which led to the court-ordered end of visitation with the children well before the petition for termination was filed, is uncontradicted in the record. For all these reasons, we cannot say the court abused its discretion in determining Sarina had not established by clear and convincing evidence that Jason abandoned the children. See Michael J. v. Ariz. Dep't of Econ. Sec, 196 Ariz. 246, ¶ 12 (2000).
¶14 The children also argue the juvenile court abused its discretion in determining severance of Jason's parental rights was not in the children's best interests and erred "in making a best interest finding without first finding a ground for severance." Because we conclude the court did not abuse its discretion in determining Sarina had not carried her burden to establish a ground for severance, we need not address these arguments. See id. ("To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533 . . . .").
¶15 We affirm the juvenile court's ruling denying the petition for termination of Jason's parental rights.