Opinion
No. 2 CA-JV 2013-0079
01-07-2014
KATRINA S., Appellant, v. CHRISTOPHER S. AND H.S., Appellees.
Solyn & Lieberman, PLLC, Tucson By Melissa Solyn Counsel for Appellant Bradley J. Armstrong, Tucson Counsel for Appellee Christopher S.
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. S203144
The Honorable Lisa Abrams, Judge
AFFIRMED
COUNSEL
Solyn & Lieberman, PLLC, Tucson
By Melissa Solyn
Counsel for Appellant
Bradley J. Armstrong, Tucson
Counsel for Appellee Christopher S.
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge:
¶1 Katrina S., mother of H.S., born in December 2004, appeals from the juvenile court's June 2013 order denying her petition for termination of the parental rights of Christopher S., H.S.'s father. We affirm for the reasons stated below.
¶2 The juvenile court may not terminate a parent's rights unless the court finds the record contains clear and convincing evidence that at least one of the statutory grounds for termination exists. See A.R.S. § 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 7, 110 P.3d 1013, 1015-16 (2005). When reviewing an appeal from an order denying a motion to terminate a parent's rights, we view the evidence in the light most favorable to sustaining the juvenile court's ruling. See 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). We will not disturb the ruling unless the factual findings upon which it is based are clearly erroneous. Id.
¶3 Katrina and Christopher were divorced in April 2008. Katrina was awarded full custody of H.S., subject to Christopher's parenting time. In January 2011 Katrina filed a motion to modify Christopher's parenting time based on allegations that he had been abusing alcohol, engaging in domestic violence with his new wife D., and not properly caring for H.S. In February 2011, the trial court held a hearing on that motion; Christopher did not appear. Katrina
informed the court that Christopher had been arrested and charged in federal court with drug trafficking. Unbeknownst to Katrina at the time, Christopher apparently was in federal custody.
¶4 On February 9, 2011, Pima County Superior Court Judge Howard Hantman entered an order in the dissolution action granting Katrina's petition to modify parenting time, prohibiting Christopher from having any contact with H.S., including "contact in person, third-party, telephone, and mail" or at her school. Christopher ultimately was convicted of possession of marijuana with intent to distribute and sentenced to a prison term of twenty-five months. He was released in August 2012.
¶5 In November 2012, Katrina filed a petition for termination of Christopher's parental rights to H.S. on the grounds of abandonment and mental illness and/or chronic abuse of drugs or alcohol. See A.R.S. § 8-533(B)(1), (B)(3). Abandonment is defined by statute as "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision," and includes "minimal efforts to support and communicate with the child." A.R.S. § 8-531(1). The statute further provides that "[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." Id. Section 8-533(B)(3) provides that a parent's rights may be terminated on the ground that "the parent is unable to discharge parental responsibilities because of . . . chronic abuse of . . . alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period."
¶6 After a two-day hearing, the juvenile court made extensive factual findings on the record and concluded Katrina had failed to sustain her burden of proving the allegations of the petition. The court summarized the history of the parties' relationship, their divorce in April 2008, Christopher's use of alcohol, his varied and sometimes erratic employment history, and his prosecution, conviction and incarceration for a federal drug offense. The court found Christopher had "actively ask[ed] for time with" H.S., although he "was not necessarily consistent with his
parenting time." The court found, too, that Katrina had remarried and husband Matthew has a "loving relationship" with H.S. and cares for her "as if she [were] his daughter." The court noted Christopher had expressed sincere appreciation for the love, guidance and support Matthew had provided for H.S., and found he does not want to remove Matthew from H.S.'s life.
¶7 The juvenile court further summarized the testimony and other evidence regarding child support enforcement proceedings against Christopher, noting he was over $20,000 in arrears. The court also acknowledged Katrina's concerns about Christopher's use of alcohol, allegations of domestic violence involving Christopher's new wife, and that Christopher was arrested and incarcerated on federal drug charges in early 2011. As the juvenile court further found, in February 2011, Katrina obtained an order from Judge Hantman in the dissolution/child custody proceeding prohibiting Christopher from having any contact with H.S.
¶8 Finally, the juvenile court found, "There is [n]o doubt that father has made numerous missteps." The court observed, however, that Christopher had not contacted H.S. while he was incarcerated because "he needed to better himself and stabilize . . . [a]nd . . . he could not have had a normal life relationship with" her. But, the court noted, Christopher contacted Katrina in October 2012, after he was released from prison. The court also found that if Christopher had contacted H.S., he would have been in violation of Judge Hantman's order. The court added, "navigating in a Family Law case while in federal custody without an attorney is . . . exceptionally difficult."
¶9 The juvenile court acknowledged Katrina had "assumed responsibility for raising [H.S.] on her own, and now with the support of her current spouse." "However," the court added, "non-payment of child support, a felony prior and a history of alcohol consumption does not lend itself to meeting the burden of proof necessary to support the Court taking the most extreme action available in Juvenile Court, which is severance of parental rights." The court commented that it would be far less complicated if
Christopher's rights could be terminated so that Matthew could adopt her. But, the court observed, "severance cannot be granted because it uncomplicates relationships that have been forged by past decisions." The court concluded that Katrina had not sustained her burden of proving abandonment or chronic alcohol abuse as grounds for terminating Christopher's parental rights to H.S.
¶10 On appeal, Katrina contends the juvenile court erred by finding she had failed to prove Christopher had abandoned H.S. She points to the evidence she contends was clear and convincing. She also asserts Christopher's incarceration from January 2011 to August 2012, "does not preclude a finding of abandonment," relying to a large degree on our supreme court's decision in Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 995 P.2d 682 (2000), in suggesting the court here found otherwise. And, she argues, the court erred in crediting Christopher's testimony that he had not taken action to establish a relationship with H.S. while in prison because he wanted to improve himself and become more stable. Katrina contends that testimony was "disingenuous, at best," and reflected his subjective intent, which was irrelevant under Michael J.
¶11 Katrina essentially asks this court to reweigh the evidence on appeal, which we will not do. See Lashonda M., 210 Ariz. 77, ¶ 13, 107 P.3d at 927 (appellate court does not "reweigh the evidence presented"). The juvenile court is the trier of fact and is in the best position to weigh evidence based on its observations of the parties and witnesses and its assessment of their credibility. Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205. We will not substitute our judgment for that of the juvenile court. See id.
¶12 The juvenile court was well aware of the evidence that Katrina points to, including the evidence that Christopher was in arrears in his child support obligation. But the court resolved the conflicts in the evidence and its extensive factual findings reflect that it considered the relevant evidence and applied to the facts the correct legal standards, including the elements of the severance statute and the burden of proof. We have no basis for interfering with the court's conclusion that the evidence fell short of proving Christopher had abandoned H.S.
¶13 Nor did the juvenile court misapply Calvin B. v. Brittany B., 232 Ariz. 292, 304 P.3d 1115 (App. 2013), as Katrina suggests. The court stated it had considered Calvin B. which reasoned that "a parent may not restrict the other parent from interacting with their child and then petition to terminate the latter's rights for abandonment." The court further noted, also accurately, that there are similarities between the two cases. Exercising its discretion, however, the court added that "in this case, as to the clear and convincing evidence associated with abandonment, I cannot find that when someone has a Court order that specifically restricts their contact that that can be used as a ground for abandonment. And in fact, the Court of Appeals says that it cannot."
¶14 We do not believe the juvenile court viewed Calvin B. as creating a per se rule that prevents a court from terminating a parent's parental rights on the ground of abandonment any time there is an order in place that prevents the parent from having contact with the child. Rather, given the factual findings that preceded this portion of its ruling, it appears the court considered the totality of the circumstances before concluding Katrina did not sustain her burden. Among the factors the court considered was the relationship that had existed between Christopher and H.S. before Christopher was incarcerated and before the order was obtained, the bond that existed between them, and the fact that Christopher contacted Katrina in October 2012. And, as we previously noted, the court found it would have been difficult for Christopher to do anything about the order from prison.
¶15 Based on the record before us, which includes a transcript containing approximately sixteen pages of detailed factual findings that the juvenile court made orally at the end of the severance hearing for which there is reasonable support, we cannot say the juvenile court abused its discretion by denying Katrina's petition for termination of Christopher's parental rights to H.S. We therefore affirm the court's order.