Opinion
No. 1 CA-JV 20-0061
08-27-2020
JOSHUA V., Appellant, v. LAURA W., R.V., Appellees.
COUNSEL Law Office of Florence M. Bruemmer, PC, Anthem By Florence M. Bruemmer Counsel for Appellant Jonathan D. Conant, Attorney at Law, PLC, Prescott By Jonathan D. Conant Counsel for Appellee Laura W.
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. V1300SV201980005
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant Jonathan D. Conant, Attorney at Law, PLC, Prescott
By Jonathan D. Conant
Counsel for Appellee Laura W.
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge D. Steven Williams joined. CATTANI, Judge:
¶1 Joshua V. ("Father") appeals from the superior court's order terminating his parental rights as to his daughter, R.V., based on the statutory ground of abandonment. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Laura W. ("Mother") married in 2015 and are the biological parents of R.V., born in July 2016. In October 2016, Mother asked Father to move out after Father threw hot water in R.V.'s face. A month later, Mother received an order of protection against Father after he was physically abusive toward her. Father violated the order of protection, and he was arrested, convicted, and sentenced to prison. While Father was incarcerated, Mother filed for divorce and was given full custody of R.V. Father was not given parenting time and was ordered to pay Mother $353 in child support per month.
¶3 While incarcerated, Father mailed letters for Mother and a birthday card for R.V. to the child's maternal grandparents' address. Because the order of protection was still in place, the grandparents turned the letters over to the police before Mother could read them. After the prosecuting attorney and Father's probation officer told Father not to contact Mother and R.V., he stopped all communication with them.
¶4 Father was released from prison in January 2019 but was rearrested less than a month later for assaulting a police officer. Father was again released from prison in April 2019. That month, Mother filed a petition to terminate Father's parental rights on the ground of abandonment. In December 2019, the superior court held a severance hearing in which Mother, Father, a court-appointed investigator, and Father's girlfriend testified. At the time of the hearing, Father owed over $10,000 in child support.
Mother's initial petition alleged abandonment and Father's criminal conviction as grounds for termination. Mother later amended her petition to only assert the ground of abandonment. --------
¶5 The superior court granted Mother's petition, finding that she had proven the statutory ground of abandonment and that termination would be in R.V.'s best interests. Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶6 Father contends that insufficient evidence supported the termination order and that severance was not in R.V.'s best interests. We review the termination of parental rights for an abuse of discretion and will affirm if the decision is supported by sufficient evidence from the record. Kenneth B. v. Tina B., 226 Ariz. 33, 36 (App. 2010). As the trier of fact, the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Oscar F. v. Dep't of Child Safety, 235 Ariz. 266, 269, ¶ 13 (App. 2014) (citation omitted).
¶7 The superior court may terminate a parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance and a preponderance of the evidence shows that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
I. Abandonment.
¶8 Father contends that there was insufficient evidence to support the statutory ground of abandonment.
¶9 The superior court may terminate parental rights when a "parent has abandoned [his or her] child." A.R.S. § 8-533(B)(1). Abandonment is defined as:
[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). Whether a parent has abandoned his or her child requires an objective analysis of the parent's conduct, not an analysis of the parent's subjective intent. Michael J. v. Ariz. Dep't of Econ Sec., 196 Ariz. 247, 250, ¶ 18 (2000). When traditional means of bonding with a child are unavailable, a parent must act persistently to establish a relationship with the child and must vigorously assert his or her legal rights. Id. at 251, ¶ 25.
¶10 Here, the superior court did not abuse its discretion by finding that Father had abandoned R.V. From October 2016 to December 2019, Father had no physical contact with R.V. Although Father sent her a birthday card in July 2017, he did not send her any other cards or gifts. And at the time of the hearing, Father owed more than $10,000 in child-support arrears. See Maricopa Cty. Juv. Action No. JS-3594, 133 Ariz. 582, 586 (App. 1982) (noting nonsupport as a factor to be considered in abandonment analysis and "when coupled with a failure to communicate or the absence of sending gifts, is sufficient to uphold a conclusion that the child has been abandoned").
¶11 Father cites Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), as support for his contention that he had cause for his lack of contact with R.V. He argues that the order of protection and his incarceration restricted his ability to maintain a normal parent-child relationship with his daughter. In Calvin B., we reversed the superior court's order terminating a father's parental rights on the ground of abandonment, reasoning that he had "consistently 'done something' to assert his right to have contact with his son." Id. at 298, ¶ 29. Despite "the hurdles that [the mother] erected to his ability to parent," the father sought to establish a fixed parenting-time schedule and "managed as many as ten visits with his son a year." Id. at ¶¶ 22, 25.
¶12 Here, in contrast, Father took no affirmative steps to have a relationship with R.V. Although Mother obtained an order of protection against Father, it expired in November 2017. After that point, Father failed to have any communication with R.V. And although Father asserts that this lack of communication was due in part to his incarceration, his imprisonment does not provide a legal defense for his "failure to make more than minimal efforts to support and communicate with his child." See Michael J., 196 Ariz. at 250, ¶ 21.
¶13 Father further argues that he failed to have contact with R.V. because people in authoritative positions, like his probation officer and the prosecuting attorney, told him to stay away from Mother. But once the protective order expired, Father was free to contact either R.V. or Mother. After the order of protection expired, Father could have brought an action to enforce his parental rights, but he did not do so. Accordingly, reasonable evidence supported the superior court's finding of abandonment.
II. Best Interests.
¶14 Father also contends that severance was not in the child's best interests. In addition to finding a statutory ground for termination, the superior court must find by a preponderance of the evidence that severance is in the child's best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). Once a court has found at least one statutory ground for severance, it may "presume that the interests of the parent and child diverge." Id. at 150, ¶ 12 (citation omitted). "[T]ermination is in the child's best interests if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Id. at ¶ 13. The "child's interest in stability and security" is the touchstone of the inquiry. Id. at ¶ 12 (citation omitted).
¶15 Here, citing Father's history of domestic violence and mental illness, the superior court found that it would be detrimental to expose R.V. to the instability and concerning behavior exhibited by Father. The court noted that "Father was wild-eyed, manic in his speech and mannerisms, agitated and physically unable to maintain coherent focus," which raised concerns about R.V.'s safety if she were to be placed in Father's care. Moreover, Father admitted that his lack of contact with R.V. was in her best interests.
¶16 Father nevertheless argues that termination was not in R.V.'s best interests because "there was no other person interested in adopting the [c]hild" and R.V. would be an orphan if Mother died. But Father offers no authority for his assertion that termination of a father's parental rights is not in a child's best interests unless the father is replaced. See Pima Cty. Juv. Sev. Action No. S-2462, 162 Ariz. 536, 539 (App. 1989) ("It is inconceivable that the legislature intended that a plan for adoption be a prerequisite to severance."). Overall, reasonable evidence supports the superior court's finding that severance was in R.V.'s best interests.
CONCLUSION
¶17 For the foregoing reasons, we affirm.