Opinion
2 CA-JV 2024-0007
07-01-2024
In re Termination of Parental Rights as to V.W.,
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant Minor V.W. The Huff Law Firm, Tucson By Laura J. Huff Counsel for Appellee Alex W. Bethany C., Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. S20230026 The Honorable Jane A. Butler, Judge Pro Tempore
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Appellant Minor V.W.
The Huff Law Firm, Tucson By Laura J. Huff Counsel for Appellee Alex W.
Bethany C., Tucson In Propria Persona
Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Judge:
¶1 V.W., born December 2013, appeals from the juvenile court's order denying her mother Bethany C.'s petition to terminate her father Alex W.'s parental rights on abandonment grounds under A.R.S. § 8-533(B)(1). We affirm.
¶2 We view the evidence in the light most favorable to upholding the juvenile court's order. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 12 (App. 2007). Alex and Bethany lived together with V.W. for almost the first three years of her life. In 2016, Bethany left with V.W. and did not return. Alex filed a paternity action in 2017 and was granted joint legal-decision making authority and parenting time. In February 2021, Bethany sent Alex a letter apologizing for COVID-19 having "prevented in person visits" and explaining that Alex's visits with V.W. would remain virtual. Alex was dissatisfied with the virtual visitations and stopped attending them after several visits.
¶3 In August 2021, Bethany successfully sought to modify legal decision-making authority and the parenting plan. Bethany was awarded sole legal decision-making authority, and Alex's in-person parenting time was suspended, limiting him to telephone calls and video chats with V.W. Those orders became final in November 2021.
¶4 Bethany filed a petition to terminate Alex's parental rights in February 2023 on the ground of abandonment, claiming Alex had not contacted V.W. on holidays or her birthday, "exercised his parenting time" since the November 2021 orders, or contributed financially to V.W.'s needs. Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating 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, ¶¶ 32, 41 (2005). Following a contested hearing, the juvenile court denied the petition, finding that Alex had not abandoned V.W. This appeal followed.
¶5 V.W. first contends the juvenile court conducted an "impermissible horizontal appeal" of the 2021 family court matter by allowing "considerable testimony" about Bethany's basis for modifying legal decision-making authority and parenting time. She further asserts that the court found Bethany's petition before the family court "unreasonable." A horizontal appeal occurs when a party requests "a second trial judge to reconsider the decision of the first trial judge in the same matter, even though no new circumstances have arisen in the interim and no other reason justifies reconsideration." Quinn v. Cardenas, 256 Ariz. 77, ¶ 16 (App. 2023) (quoting Powell-Cerkoney v. TCR-Mont. Ranch Joint Venture, II, 176 Ariz. 275, 278-79 (App. 1993)). That is not what happened here.
¶6 The juvenile court was not asked to, nor did it, reconsider the family court's order. Instead, the juvenile court permitted testimony regarding Bethany's allegations in the petition relevant to determining whether Bethany had wrongfully prevented Alex from exercising his parenting time. See Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 1 (App. 2013) (parent who "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"). The court was within its discretion to make such a determination. See Ariz. R. Evid. 401 (evidence relevant if it makes a fact of consequence more or less probable); Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, ¶ 13 (App. 2012) (evidentiary rulings reviewed for abuse of discretion).
¶7 V.W. next claims the juvenile court erred by concluding that Alex had not abandoned her. Specifically, she challenges the court's finding that Bethany prevented Alex from contacting her. She also asserts the court gave inappropriate weight to the wrong considerations and failed to focus on Alex's failure to maintain contact with her.
V.W. also contends the juvenile court failed to provide sufficient findings to support its conclusions. Even assuming A.R.S. § 8-538(A)'s requirement for written findings applies to the denial of a petition to terminate parental rights, the court's written order summarized the testimony, weighed the evidence, made credibility determinations, and ultimately found that Alex had not abandoned V.W. The court's factual findings are more than sufficient. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶ 15 (App. 2018) (order must set forth at least one "sufficiently
¶8 Abandonment is "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). It "includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child." Id. "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." Id.
¶9 The juvenile court found that Alex had not abandoned V.W., and that finding is supported by the record. In particular, the court explained that "although both parties [had] agreed to have video visits during the Covid pandemic, when [Bethany] returned to her in-person teaching job . . . in July 2021, she still required [Alex] to have only video visits," despite Alex's adamant opposition. The court further found that while the parenting time orders required the parties to keep each other apprised of changes to their contact information, Bethany changed her phone number without informing Alex or his family. Further, the court noted that Alex had testified to repeatedly sending gifts and cards to V.W. but that Bethany either had denied receiving them or had not given them to her. The court found Bethany to be "a poor historian" and "not credible." V.W.'s arguments amount to little more than a request that we reweigh the evidence. We are not permitted to do so. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004) ("A 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 resolve disputed facts.").
¶10 Finally, V.W. claims the juvenile court cited to "inadmissible attorney testimony, post-petition actions, and irrelevant evidence regarding [Alex]'s support" of her. Such "attorney testimony" includes the juvenile court's purported reliance on Alex's attorney's questions to Bethany rather than her actual testimony. Bethany denied the truth of the attorney's questions. However, the court's citation to the "attorney testimony" was in the context of its finding that Bethany was not a credible witness. Thus, the court did not rely on the substance of the "attorney testimony" but instead referenced the questions at issue in determining Bethany's credibility. specific finding to support each" conclusion of law but need not "list each and every fact relied upon in making its findings").
¶11 V.W. also contends the juvenile court erroneously relied on certain exhibits showing that Alex made child support payments only after Bethany's petition to terminate his parental rights had been filed. See Matter of Appeal in Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 8 (1990) (prima facie case of abandonment cannot be rebutted merely by post-petition attempts to re-establish a parental relationship). But there is evidence in the record showing that Alex paid some child support well before the petition was filed. Accordingly, any error in this regard does not undermine the court's factual findings.
¶12 We affirm the juvenile court's order denying Bethany's petition to terminate Alex's parental rights as to V.W.