Opinion
No. 2 CA-JV 2017-0108
10-12-2017
JOSE V., Appellant, v. AMBER V., J.V., AND J.-V., Appellees.
COUNSEL Joel B. Feinman, Pima County Public Defender By Nicholas Knauer, Assistant Public Defender, Tucson Counsel for Appellant Carl M. Tootle, Tucson Counsel for Appellee Amber V. Pima County Office of Children's Counsel, Tucson By John Walters Counsel for Minors
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. S20160148
The Honorable D. Douglas Metcalf, Judge
AFFIRMED
COUNSEL Joel B. Feinman, Pima County Public Defender
By Nicholas Knauer, Assistant Public Defender, Tucson
Counsel for Appellant Carl M. Tootle, Tucson
Counsel for Appellee Amber V. Pima County Office of Children's Counsel, Tucson
By John Walters
Counsel for Minors
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Howard concurred. ESPINOSA, Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Jose V. appeals from the juvenile court's order terminating his rights to his daughter, born February 2006, and his son, born May 2008, pursuant to a private termination petition filed by the children's mother, Amber V. Jose argues the juvenile court erred by finding he had abandoned the children and that termination was in their best interests. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2, 365 P.3d 353, 354 (2016). Jose and Amber separated in June 2008, following an incident in which Jose threatened to take the children from Amber, after which she obtained an order of protection against him. Jose filed for divorce later that year. He moved to New York in late 2008 and had no meaningful contact with the children until after the divorce was finalized.
¶3 In March 2009, the family court ordered Jose to pay monthly child support. A judgment was entered against him in 2015 for over $50,000 of unpaid child support and arrears, and Jose has made no child support payments since that time, making his total obligation over $90,000 to date. The divorce decree was entered in November 2009, granting Amber sole physical and legal custody of the children. The family court found that, although Amber had provided Jose the opportunity for "frequent and meaningful, continuing contact with the children," Jose nonetheless has "no relationship" with them because he chose to relocate from Arizona to New York and made no effort to have frequent or meaningful contact with the children since moving. In the decree, the court noted that, other than a single "aborted telephone call," Jose had not attempted to contact the children.
¶4 After the divorce, Jose did maintain telephone contact with the children, but had no physical contact with them until 2013. Between September 2013 and July 2014, Jose visited the children five times. In 2014, the family court ordered that Jose was entitled to "video parenting time" of twenty minutes three days per week and to parenting time in Arizona for several days in December 2014. Jose did not visit Arizona again. In April 2015, his "electronic parenting time" was reduced to twice weekly; the order was silent as to physical visitation. The family court ordered Jose to attend therapeutic and reunification services at a facility in Arizona, which would include "therapeutic supervised visits." Although he participated in a telephone intake, he thereafter refused to continue, informing the facility he was unable to pay.
¶5 In 2016, Amber petitioned to terminate Jose's parental rights on the grounds of abandonment, neglect or abuse, and mental illness. After a two-day evidentiary hearing, the juvenile court terminated Jose's parental rights on abandonment grounds—concluding Amber had not demonstrated termination was warranted on the other grounds alleged—and found termination was in the children's best interests. This appeal followed.
Discussion
¶6 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶7 Pursuant to § 8-533(B)(1), termination of parental rights is warranted if "the parent has abandoned the child." A parent abandons a child if he or she fails "to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). "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." Id. "What constitutes reasonable support, regular contact, and normal supervision varies from case to case." Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20, 995 P.2d 682, 686 (2000), quoting In re Pima Cty. Juv. Action No. S-114487, 179 Ariz. 86, 96, 876 P.2d 1121, 1131 (1994). "Therefore, questions of abandonment . . . are questions of fact for resolution by the trial court." Id., quoting In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4, 804 P.2d 730, 733 (1990) (alteration in Michael J.). Although a finding of abandonment cannot be premised solely on the failure to provide support, a court need not ignore that factor when considering whether a parent has abandoned a child. In re Pima Cty. Severance Action No. S-1607, 147 Ariz. 237, 239, 709 P.2d 871, 873 (1985).
¶8 Jose argues the juvenile court erred in finding he had abandoned the children because his "persistent and vigorous efforts to maintain contact with [them] repel any notion of abandonment." He relies primarily on Calvin B. v. Brittany B., 232 Ariz. 292, 304 P.3d 1115 (App. 2013). In that case, this court concluded there was not clear and convincing evidence of abandonment because the father "had actively sought more involvement with [his] son than [the mother] would allow." Id. ¶ 22. The father maintained his relationship with his son for a year after he and the mother divorced. Id. After he filed a petition for joint custody, however, the mother began a successful campaign to limit his access to the child, including by obtaining orders of protection and by violating parenting-time orders. Id. ¶¶ 21-24. On appeal, the court found the evidence of abandonment insufficient, despite the father having failed to pay child support and having "inexplicably put off taking the parenting class" required to enforce his visitation rights. Id. ¶¶ 24-25. The court reasoned "[a] parent may not restrict the other parent from interacting with their child and then petition to terminate the latter's rights for abandonment." Id. ¶ 21. Further, the court noted, the father had consistently asserted his legal right to see his son and sought to maintain his relationship with him by pursuing visitation. Id. ¶¶ 27, 29.
In his opening and reply briefs, Jose relies on memorandum decisions issued in 2016. Pursuant to Rule 111(c)(1)(C), Ariz. R. Sup. Ct., a party may cite a memorandum decision "for persuasive value, but only if it was issued on or after January 1, 2015; no opinion adequately addresses the issue before the court; and the citation is not to a depublished opinion or a depublished portion of an opinion." Even if we agreed that "no opinion adequately addresses" the issues before us and that the cited memorandum decisions would be helpful in resolving those issues, id., Jose has nonetheless failed to comply with Rule 111(c)(3), because he has provided neither a copy of, nor a free-of-charge hyperlink to, the decision as required. We therefore do not consider those memorandum decisions in our review.
¶9 Calvin B. is readily distinguishable. In that case, unlike here, there was a finding that the mother had improperly restricted the father's access to the children. Id. ¶ 24. No such finding exists here and, to the extent Jose argues the juvenile court should have made such a finding, that argument is nothing more than a request that we reweigh the evidence, something we will not do. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002).
¶10 Nor do we agree with Jose's assertion that, like the father in Calvin B., he "persistent[ly]" attempted to maintain a parental relationship with the children. In contrast, Jose has persistently failed to take full advantage of his opportunities to interact with the children. He did not have meaningful contact with them for nearly a year following his separation from Amber, although the family court found he had ample opportunity to have done so. He instead chose to move to New York, thereby making visitation more difficult and expensive—a decision made despite his claim of having a limited income. He declined to participate in services that would have permitted physical visits. Although he complained he could not afford the services, he proposed no alternative. As a result, Jose has personally visited the children only six times since late 2008. Since 2014, Jose's contact with the children has been limited to video calls a few times a week.
Throughout his brief, Jose argues he has established "just cause" for his failure to have more frequent or meaningful contact with the children. He apparently relies on § 8-531(1), which states, in part, "[f]ailure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment." But this section does not suggest that "just cause" precludes a finding of abandonment. Even if we agreed Jose had established just cause, it would merely rebut the presumption of abandonment resulting from his failure to maintain contact with his children following his separation from Amber.
Jose blames his lack of physical visitation with the children on his claimed lack of financial resources. The juvenile court was free to discount this claim in light of evidence that Jose had vacationed in Europe, travelled from New York five times in a ten-month period and, at one point, offered Amber $40,000 to surrender custody of the children to him. Nor was the court required to accept his claim that he was unable to pay court-ordered child support. Nothing suggests Jose sought modification of that support amount.
Jose had additional electronic communication with his daughter in violation of the family court's order. This court suggested in Calvin B. that communication in violation of an order of protection could weigh against a finding of abandonment. 232 Ariz. 292, ¶ 27, 304 P.3d at 1121. Section 8-531(1) requires a parent to provide "normal supervision." Jose's daughter told a therapist that his continued texts and calls were unwanted and consisted largely of "order[ing]" her to call him and to keep her phone charged, and telling her she should leave Amber when she turns thirteen. This does not constitute normal parental supervision. --------
¶11 A parent's occasional contact by telephone or video does not preclude a juvenile court from finding the parent has abandoned a child. Section 8-531(1) requires that the parent's contact with the child include "normal supervision." In evaluating this requirement, a court "should look to see whether the parent has taken steps to establish and strengthen the emotional bonds linking him or her with the child." Kenneth B. v. Tina B., 226 Ariz. 33, ¶ 21, 243 P.3d 636, 640 (App. 2010). The family court found in the divorce decree that Jose had no relationship with the children. The juvenile court did not err in finding that Jose's subsequent communication—limited by Jose's decisions only to video contact—has done nothing to alter that. The child welfare consultant who conducted a social study observed that neither child had a parent-child relationship with Jose. His daughter said she was "[n]ot sure why [she]" would see him again, and his son stated he "wouldn't miss him" and "will never want to see him." For all of the above reasons, we conclude Jose has not demonstrated the court erred in finding he had abandoned the children.
¶12 Finally, Jose claims the juvenile court erred by concluding termination was in the children's best interests because there was no "prospective adoption" available. He reasons there was thus no "affirmative benefit" to the children resulting from termination. But Jose has cited no authority, and we find none, suggesting that a juvenile court is prohibited from finding termination is in a child's best interests if there is no pending adoption. We acknowledge that a court cannot merely "assume that a child will benefit from a termination simply because he has been abandoned." Demetrius L., 239 Ariz. 1, ¶ 14, 365 P.3d at 356, quoting Maricopa Cty. No. JS-500274, 167 Ariz. at 5-6, 804 P.2d at 734-35. But termination is in a child's best interests if the child would be harmed by allowing the relationship to continue. Id. ¶ 16. The juvenile court found that Jose's contact with the children was harmful. That determination is supported by the record. Thus, the court did not err in concluding that termination was in the children's best interests.
Disposition
¶13 The juvenile court's order terminating Jose's parental rights is affirmed.