Opinion
1 CA-JV 21-0380
05-17-2022
JESUS R., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.R., N.R., Appellees.
Popilek Law, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Tucson By Jennifer Blum Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD37749 The Honorable Lori Bustamante, Judge
Popilek Law, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Jennifer Blum
Counsel for Appellee Department of Child Safety
Judge D. Steven Williams delivered the decision of the court, in which Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
MEMORANDUM DECISION
WILLIAMS, JUDGE
¶1 Jesus R. ("Father") appeals the superior court's order terminating his parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
This court views the facts in the light most favorable to upholding the superior court's findings. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008).
¶2 Father and Martha M. ("Mother") are the parents of two children, born in 2012 and 2016 respectively, who are the subjects of this appeal. In 2019, Mother gave birth to a third child, fathered by another man, who was born substance exposed to opiates. The Arizona Department of Child Safety ("DCS") implemented an in-home safety plan which required an extended family member to act as a safety monitor. The following month, when the family member was no longer willing to assist, DCS removed the children from the home and initiated a dependency based upon Mother's substance abuse and Father's failure to provide for the children's basic needs.
Mother's parental rights were also terminated, but she is not a party to this appeal.
¶3 At the time of the children's removal, Father's whereabouts were unknown. DCS made attempts to locate Father and serve him with the dependency petition and related documents. On one occasion, DCS served Father's twin brother at an address linked to Father. The brother confirmed Father resided there. DCS also served Father by publication. By October 2019, the superior court found service complete and the children dependent.
¶4 Father never attended a court hearing; nor did he contact the children. In July 2021, DCS moved to terminate Father's parental rights on grounds of abandonment under A.R.S. § 8-533(B)(1). DCS attempted to serve Father by publication, but when Father appeared for court in October 2021, Father's counsel accepted service of the termination motion on Father's behalf. Father denied abandoning the children and the court set a termination trial for December 2021. DCS referred Father for services, including substance-abuse testing, but Father by and large refused to participate.
¶5 At trial, Father testified he was living with Mother and the children until DCS removed them, and that he then went to live with his grandmother. Father denied living with his brother at the address the dependency petition was served but said he was informed of the petition, as well as the DCS case worker's name. Father acknowledged he last saw the children in October 2019 and that he knew the children were placed with various relatives. Father stated he sent gifts to the children through his grandmother and called the superior court three times since November 2020 to inquire about the children. Father stated he tried calling DCS early on but never received a phone call back. When pressed about having no contact with DCS for the past two years to see his children, Father said he was busy working and "just maintaining [his] life." He said, however, he thought of the children every day.
¶6 The superior court found Father had abandoned the children and that severing the relationship was in the children's best interests. The court terminated Father's parental rights. Father timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶7 Parental rights are fundamental, but not absolute. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may terminate a parent's right in the care, custody, and management of their children "if it finds clear and convincing evidence of one of the statutory grounds for severance, and also finds by a preponderance of the evidence that severance is in the best interests of the children." Id. at 97-98, ¶ 7.
¶8 We review a termination order for abuse of discretion, accepting the court's factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," we will affirm an order terminating parental rights if reasonable evidence supports the order. Jordan C. v. Ariz. Dep't of Econ. Sec, 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)).
¶9 Father challenges the superior court's termination order, arguing (1) he was not properly served the dependency petition and (2) there was insufficient evidence he abandoned the children.
I. Sufficiency of Service
¶ 10 Because of Father's fundamental interest in the care, custody, and management of his children, when the State acts to terminate that right, due process requires "notice reasonably calculated, under all the circumstances, to apprise [Father] of the pendency of the action and to afford [him] an opportunity to present [his] objections." See Mara M. v. Ariz. Dep't. of Econ. Sec, 201 Ariz. 503, 507, ¶ 24 (App. 2002) (quoting Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 355 (App. 1994)).
¶ 11 Father does not challenge the legitimacy of service of the motion to terminate his parental rights, but instead only challenges service of the dependency petition. But Father did not appeal the dependency.
¶ 12 Father's counsel accepted service of the termination motion at a hearing Father attended in person. Father thereafter appeared at, and participated in, the termination trial. Father has shown no deficiency in service of process.
II. Abandonment
¶ 13 Father also challenges the sufficiency of evidence for the court's finding of abandonment. See A.R.S. § 8-533(B)(1). Abandonment means the following:
[T]he 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.A.R.S. § 8-531(1).
¶ 14 Father admits he had no contact with the children for two years. And while Father sent the children gifts through his grandmother, record evidence also supports the superior court's finding that Father failed to provide the children with any financial support. Father attributes his failures to the COVID pandemic as well as the DCS case worker not calling him back. But even if we take Father at his word, that he "did not have any intent to abandon the [c]hildren," abandonment is "measured not by a parent's subjective intent, but by the parent's conduct." Michael J. v. Ariz. Dept. of Econ. Sec, 196 Ariz. 246, 249, ¶ 18 (2000). Father was aware the children were removed from the home in 2019, yet he did not see them for two years. The court's characterization of Father's last-minute efforts as "insufficient to overcome the grounds of abandonment" was not made in error.
CONCLUSION
¶ 15 For the foregoing reasons, we affirm the superior court's order terminating Father's parental rights to the children.