Opinion
2 CA-JV 2012-0136
05-22-2013
JESUS A., Appellant, v. STEPHEN J., MADGA J., and EDUARDO S.-M., Appellees.
Michael Villareal Florence Attorney for Appellant Donaldson Stewart, P.C. By Laura B. Monte Chandler Attorneys for Appellees Stephen J. and Magda J. Cooper & Rueter, L.L.P. By Matthew Lara Casa Grande Attorneys for Appellee Eduardo S.-M.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 28, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100SV201200043
Honorable Craig A. Raymond, Judge Pro Tempore
AFFIRMED
Michael Villareal Florence
Attorney for Appellant
Donaldson Stewart, P.C.
By Laura B. Monte
Chandler
Attorneys for Appellees
Stephen J. and Magda J.
Cooper & Rueter, L.L.P.
By Matthew Lara
Casa Grande
Attorneys for Appellee
Eduardo S.-M.
HOWARD, Chief Judge. ¶1 Stephen J. and Magda J., paternal uncle and aunt of Eduardo S.-M., born in October 2003, filed a petition to terminate the parental rights of the child's father, Jesus A., on the grounds of abandonment and mental illness, mental deficiency and chronic substance abuse. See A.R.S. § 8-533(B)(1), (B)(3). After a contested severance hearing, the juvenile court granted the petition and terminated Jesus's parental rights, finding clear and convincing evidence established Jesus had abandoned Eduardo and a preponderance of the evidence showed termination was in the child's best interest. Jesus challenges that ruling on appeal, arguing there was insufficient evidence to support it. We affirm the juvenile court's ruling for the reasons stated below. ¶2 On an appeal from an order terminating parental rights, we view the evidence in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005). Thus, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002). ¶3 The record and the evidence presented at the parental severance hearing support the court's summary of the facts that led to the filing of the petition to terminate Jesus's rights. Briefly, Eduardo's mother died in an automobile accident in September 2007. Before her death, however, she and Jesus had been unable to care for Eduardo properly, living a life that was unstable in part due to their use of drugs and drug addiction. Magda is Jesus's sister. The court found that, from the time she was seventeen years old and Eduardo was two, "Magda essentially started playing the role of the mother [Eduardo] could rely on . . . ." According to the court, Magda and her husband Stephen, "became the maternal and paternal role models for [Eduardo]" and "provided [him] with the psychological, emotional and financial support he needs throughout his life." They sought and obtained ILP status in August 2009 and filed a petition to terminate Jesus's parental rights on the grounds of abandonment and mental illness/chronic drug and substance abuse in May 2012. ¶4 A parent's rights may be terminated if the juvenile court finds "[t]hat the parent has abandoned the child." A.R.S. § 8-533(B)(1). Section 8-531(1), A.R.S., provides:
"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.¶5 Following a two-day hearing on the petition to terminate, the juvenile court made detailed findings regarding the relevant factual history and concluded that Jesus had abandoned Eduardo; no purpose would be served by restating the ruling in its entirety. See Jesus M., 203 Ariz. 278, ¶ 16, 53 P.3d at 207-08, citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Rather, because there is reasonable evidence supporting the ruling, we adopt it. Id. ¶6 On appeal, Jesus asserts there was insufficient evidence supporting the juvenile court's conclusion that he abandoned Eduardo based on the definition of abandonment in § 8-531. He maintains the uncontradicted evidence established Stephen and Magda have not permitted him to have contact with Eduardo since July 2010. He argues they relied on "a strict reading of an In Loco Parentis (ILP) agreement to deny all visitation for two years," notwithstanding his "great improvement and a drug free lifestyle in 2012." He also points to testimony by the Child Protective Services (CPS) investigator that he "was now a good parent and able to care for his young daughter." He notes other favorable evidence as well, including evidence that he sent gifts to Eduardo for his birthday and Christmas, and contends Stephen and Magda "declined to accept these gifts once they terminated contact." Although he insists he told Stephen and Magda he would help support his son, he essentially concedes he provided no such support, asserting Stephen and Magda "thwarted" his attempts to do so and never asked for any financial assistance. ¶7 By pointing to evidence that was favorable to him, Jesus is essentially asking us to reweigh the evidence. But "the juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). We will not reweigh the evidence and substitute our judgment for that of the juvenile court. Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205. The court was well aware of such evidence and any conflicts in the evidence. The court resolved those conflicts against Jesus, expressly finding Jesus's testimony and that of his current wife was not credible, noting their testimony "was significantly impeached by . . . witnesses" Magda and Stephen presented. The court's ruling included findings regarding Jesus's drug-related lifestyle and criminal conduct, which contributed to his failure to develop a relationship with Eduardo. The court noted in particular the testimony of the CPS investigator that was not so favorable. ¶8 Finally, the juvenile court noted that the Memorandum of Understanding or Conciliation Court Agreement entered in the ILP case in May 2010 required Jesus to submit to weekly tests for drug usage in order for Jesus to have greater visitation with Eduardo. The court concluded, "Simply stated, father couldn't do it." Thus, the court reasonably rejected any claim that Magda and Stephen were to blame for Jesus's failure to have contact with Eduardo because of their "strict" reading of the agreement. Rather, there was reasonable evidence supporting the court's finding that Jesus "has made only token effort to see his child since his release from the Department of Corrections in 2010" and that he had "done little or nothing to assert any type of visitation right in the ILP case." That evidence included Magda's testimony about the little effort Jesus put into establishing a relationship with Eduardo and his failure to maintain a normal parent/child relationship for a period that exceeded six months. ¶9 We also reject Jesus's contention that there was insufficient evidence to support the juvenile court's finding that a preponderance of the evidence established severance of Jesus's parental rights was in Eduardo's best interest. Termination of a parent's rights is in a child's best interest if the child would benefit from the severance or be harmed by the continuation of the relationship with the parent. In re Maricopa Cnty Juv. Action No. JS500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Related to this finding, the court noted the "benefit of permanency and stability which [Magda and Stephen]" [had] provided for so many years is what is in [Eduardo]'s best interest." This and other findings relevant to the issue of Eduardo's best interest are supported by the record. In that regard, Magda testified that she is ready, willing and able to adopt Eduardo in order to provide him with permanency. She testified further that she and her husband have always supported Eduardo and are able to offer him a safe, stable home. She expressed her concern that, if the court did not terminate Jesus's rights, it would affect Eduardo's stability, in light of the fact that the child's "biological father" would be "in and out of his life whenever he feels like it." ¶10 For the reasons stated, we affirm the juvenile court's order terminating Jesus's parental rights to Eduardo.
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JOSEPH W. HOWARD, Chief Judge
CONCURRING: _____________
PETER J. ECKERSTROM, Presiding Judge
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MICHAEL MILLER, Judge