Opinion
2 CA-JV 2022-0111 2 CA-JV 2022-0112
02-24-2023
In re Termination of Parental Rights as to D.B.,
Daniel R. Huff and Laura J. Huff, Tucson Counsel for Appellants Nicole B. and Austin B. Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant D.B. Domingo DeGrazia, Tucson Counsel for Appellee Grant P.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20210116 The Honorable Jane Butler, Judge
Daniel R. Huff and Laura J. Huff, Tucson Counsel for Appellants Nicole B. and Austin B.
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant D.B.
Domingo DeGrazia, Tucson Counsel for Appellee Grant P.
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, Judge:
¶1D.B., born February 2016, his mother, Nicole B., and her husband, Austin B., appeal from the juvenile court's order denying a petition to terminate the parental rights of D.B.'s father, Grant P., on abandonment grounds under A.R.S. § 8-533(B)(1). They assert the court "misapplied the statute and case law." We affirm.
¶2We view the facts in the light most favorable to upholding the juvenile court's ruling. Michael J. v. Ariz. Dep't of Econ. Sec, 196 Ariz. 246, ¶ 20 (2000). Grant and Nicole were in a romantic relationship while both lived in Washington. Nicole became pregnant in 2015. Although Grant was incarcerated during most of Nicole's pregnancy, they had regular contact throughout. Shortly before D.B.'s birth, however, Nicole told Grant's mother that she would not let Grant have custody. She did not place Grant's name on D.B.'s birth certificate. But Grant's family nonetheless maintained contact with D.B. for several months, including providing child care. Grant has been incarcerated periodically throughout D.B.'s life, most recently from September 2019 to May 2022.
¶3In mid-2016, Nicole moved to Arizona with D.B. She obtained an order of protection, which prohibited Grant from contacting her or D.B., and she obtained similar protective orders through late 2020. Although Grant attempted to contest the first such order, he did not timely request a hearing. Additionally, a Washington court imposed a no-contact order. That order was set to expire in 2023. After moving to Arizona, Nicole cut off virtually all contact with Grant's family.
¶4In 2016, Grant filed actions in Washington to establish paternity and parenting time, but his first counsel failed to pursue the claims and they were dismissed. Grant testified he could not afford to continue his claims, and the evidence showed his family had spent $11,000 on legal fees and hired a private investigator to locate Nicole. In May 2017, Grant sought to send money and gifts to support D.B. by contacting D.B.'s maternal grandfather but was refused. Grant wrote a letter to D.B. in November 2021, but it was returned as undeliverable. He also emailed Nicole, who reported him for violating the Washington no-contact order, resulting in criminal charges against Grant.
¶5In July 2021, Nicole and Austin petitioned to terminate Grant's parental rights to D.B. They alleged termination was warranted because Grant had abandoned D.B., citing § 8-533(B)(1), and because his incarceration had deprived D.B. "of a normal home . . . for a period of years," citing § 8-533(B)(4). Ultimately, however, they pursued only the abandonment ground. After a four-day termination hearing, the juvenile court denied the petition. It found that "[Grant]'s actions, his own and those by and through his relatives acting as [his] agents," had attempted "to create his part" in D.B.'s life. And, citing Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), the court further found Nicole's conduct had interfered with Grant's efforts to maintain a relationship with D.B. It noted that Nicole, "over a period of years," had refused mail and gifts and had otherwise avoided "personal and legal contact." The court also noted that the various protective orders had prevented Grant from having contact with D.B. This appeal followed.
¶6To terminate a parental relationship, the juvenile court must find by clear and convincing evidence at least one of the grounds for termination in § 8-533(B), and also by a preponderance of the evidence that termination is in the child's best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 8 (2018). "The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). We do not reweigh the evidence and will look only to determine if there is reasonable evidence to sustain the court's ruling. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004). We will affirm the juvenile court's ruling unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 9 (2016).
¶7To establish that Grant had abandoned D.B., Nicole and Austin were required to show he had failed "to provide reasonable support and to maintain regular contact with [D.B.], 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. "[Abandonment is measured not by a parent's subjective intent, but by the parent's conduct ..... Michael J., 196 Ariz. 246, ¶ 18. "What constitutes reasonable support, regular contact, and normal supervision varies from case to case." In re Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 96 (1994). Because the concept of abandonment and terms like "reasonable support" or "normal parental relationship" are imprecise and elastic, these are questions of fact left to the juvenile court to resolve. In re Maricopa Cnty. Juv. Action No. JS-4283, 133 Ariz. 598, 601 (App. 1982); see also Michael J., 196 Ariz. 246, ¶ 20 (abandonment is primarily fact question).
¶8"[A] parent who has persistently and substantially restricted the other parent's interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child." Calvin B., 232 Ariz. 292, ¶ 1. Parents prevented from exercising traditional means of bonding with a child must "act persistently to establish the relationship" and "must vigorously assert" their legal rights. Michael J., 196 Ariz. 246, ¶ 22 (quoting In re Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 97 (1994)); see also Calvin B., 232 Ariz. 292, ¶ 29.
¶9 The appellants acknowledge that a parent may not interfere with the other parent's efforts to create or maintain a relationship with their child. They assert, however, that Grant's efforts nonetheless fall short of his obligation to establish a relationship with D.B. and assert his legal rights. They point to his failure to pursue his paternity and parenting time claims to completion and to contest the protective orders. They cite In re Pima County Severance Action No. S-1607, 147 Ariz. 237 (1985), for the proposition that Grant was required to "follow through" with his efforts to establish paternity and parenting time.
¶10 Pima Coun ty No. S-160 7 is distinguishable. The parent in that case filed a petition seeking additional visitation, which was later dismissed by stipulation; the terms of the stipulation were unknown. Id. at 239. The supreme court noted the parent "took no further legal action to ensure his visitation rights" but did not address whether the parent had given a reason. Id. Here, in contrast, Grant sought to establish paternity and visitation rights, and his family expended at least $11,000 to pursue that litigation with no result. The appellants acknowledged below that the attorneys Grant's family had hired were incompetent. Grant and his family lacked the financial means to renew their legal efforts. And Grant stated he saw little reason to continue in light of his incarceration. The appellants have cited no evidence and developed no argument that his belief was unreasonable. We cannot conclude that Arizona law requires a parent to exhaust their financial resources on legal efforts absent any indication those efforts would succeed.
The appellants assert Grant's efforts fell short because he did not contest the protective orders. They do not suggest, however, that he would have prevailed had he done so.
¶11 The appellants next argue that the juvenile court erred by finding Grant's relatives' efforts to maintain contact with Nicole and D.B. were material to whether Grant had abandoned D.B. They argue that a parent cannot "delegate his or her obligations for support and care for a child with the expectation that such a delegation is sufficient to avoid a finding of legal abandonment of the child." (Emphasis omitted).
¶12 But, as the appellants acknowledge, our supreme court has directed courts to view abandonment in light of the circumstances - that is, a parent does not abandon a child merely because traditional methods of bonding are not available. See Michael J., 196 Ariz. 246, ¶ 22. Grant could not avail himself of traditional approaches - his legal efforts were unsuccessful and the protective orders ensured he was unable to contact D.B. directly. The avenue of contact Nicole allowed Grant was through his family. Even then, she took substantial steps to limit that contact, including cutting off communication with family members who told Grant they had been in touch with D.B. In these circumstances, the juvenile court properly considered the efforts of Grant's family to maintain contact with D.B.
The appellants suggest Grant should have contacted D.B. through counsel. But Grant testified that his attorney never made clear to him "what actions [he] could take" to contact D.B. and that he was afraid of being charged with violating the protective orders.
¶13 Last, the appellants contend the juvenile court erred by finding Nicole had interfered with Grant's efforts to maintain a relationship. They assert, remarkably, that Nicole did not prevent Grant from contacting D.B. at all. We cannot agree, given that she obtained protective orders specifically preventing him from doing so. And she asserted her rights under those protective orders by reporting Grant for violating them.
¶14 Relatedly, the appellants argue that the juvenile court erred by relying on Calvin B. in its analysis of Nicole's interference. They correctly note the father in Calvin B. litigated both custody issues and protective orders. 232 Ariz. 292, ¶¶ 3, 5, 7. But that case does not purport to describe the minimum effort a parent must undertake to preserve parental rights. This argument, then, is little more than a rehash of the appellants' argument that the court erred in finding Grant had adequately asserted his parental rights- an argument we have rejected. We also reject their argument that Nicole could not interfere with Grant's ability to contact D.B. because she "could not interfere with that which did not already legally exist." Grant's unsuccessful efforts to litigate his parental rights do not lessen the effect of Nicole's interference.
¶15 We affirm the juvenile court's order denying the petition to terminate Grant's parental rights.