Opinion
No. 1 CA-JV 18-0464
06-04-2019
MICHELLE H., Appellant, v. ROBERT S., M.S., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Michelle H. Law Office of Amber L. Guymon, PLLC, Chandler By Amber L. Guymon Counsel for Appellee Robert S.
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. JS518646
The Honorable Lindsey G. Coates, Judge Pro Tempore
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Michelle H. Law Office of Amber L. Guymon, PLLC, Chandler
By Amber L. Guymon
Counsel for Appellee Robert S.
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James P. Beene joined. CATTANI, Judge:
¶1 Michelle H. ("Mother") appeals from the superior court's order in this private severance action terminating her parental rights as to her daughter, M.S. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Robert S. ("Father") are the biological parents of M.S., born in July 2010. M.S. was born with multiple health issues and required significant medical attention at the beginning of her life. Mother was her primary caregiver and attended all of M.S.'s appointments and therapies until 2012. Father had weekly visitation but minimally attended M.S.'s medical appointments.
¶3 In September 2012, Father was granted an emergency modification suspending Mother's parenting time because Mother was in an abusive relationship that threatened M.S.'s safety. That same month, Mother, who had struggled with an opioid addiction for years, attended an in-patient substance-abuse treatment facility. Father then became M.S.'s primary caregiver.
¶4 Mother continued to struggle with opioid addiction and was only permitted limited parenting time. Consequently, in November 2015, Father was awarded sole legal decision-making authority. The family court imposed several preconditions for Mother to obtain equal parenting time, including taking regular drug tests, disclosing medical and pharmacy records, seeing a psychiatrist, and following her therapist's recommendations. Mother never met these preconditions or sought to have them modified.
¶5 Since the family court order has been in place, Mother has had only minimal contact with M.S. She last visited M.S. in June 2016, last sent a card in April 2017, and last provided any financial support—a $25 gift card—in April 2017. Because of this minimal contact and Mother's opioid addiction, in October 2017, Father filed a petition to terminate Mother's parental rights, alleging abandonment and substance abuse as grounds for severance. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1), (3).
¶6 After a five-day termination hearing, the court severed Mother's parental rights as to M.S., finding both statutory grounds as alleged and that termination was in M.S.'s best interests.
¶7 Mother timely appealed. We have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶8 Termination of parental rights requires clear and convincing evidence of a statutory ground set out in A.R.S. § 8-533(B), and proof by a preponderance of the evidence that termination is in the best interests of the child. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018). We view the evidence in the light most favorable to affirming the superior court's ruling and will not overturn the court's findings unless no reasonable evidence supports them. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
I. Abandonment.
¶9 Mother argues that the superior court erred by terminating her parental rights based on abandonment. Abandonment for these purposes is defined as "the failure of a parent to provide reasonable support and to maintain regular contact with the child," and it may include circumstances in which the parent has only made minimal efforts to communicate with her child. A.R.S. § 8-531(1). "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. Abandonment is measured by the parent's conduct, not subjective intent. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18 (2000).
¶10 Here, the evidence supports the superior court's finding that Mother abandoned M.S. Mother failed to maintain a normal parental relationship with M.S. for well over six months. Mother last visited M.S. in June 2016 and had no contact at all with M.S. for six months before Father filed the October 2017 severance petition.
¶11 Moreover, Mother lacked just cause for her absence. She was unable to exercise parenting time because she did not comply with court-imposed conditions relating to her drug and mental-health issues. Mother was employed, lived in an apartment, and made monthly payments on her vehicle. Although she now suggests that she was struggling financially to comply with the court order, she never requested relief from the family court based on an inability to pay for the required services.
¶12 Citing Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), Mother claims that termination was improper because Father refused to allow her access to M.S. In Calvin B., the mother restricted the father's ability to develop a relationship with their son and then petitioned to terminate the father's rights based on abandonment. Id. at 296-97, ¶ 21. Although the father had actively tried to be a part of his son's life, the mother refused to allow him to speak to their son and cancelled visitations. Id. at 297, ¶¶ 22, 24. This court held that, under those circumstances, the superior court erred by finding clear and convincing evidence of abandonment. Id. at ¶ 21.
¶13 Here, in contrast, Mother was required to comply with a family court order before she could exercise parenting time, and she failed to comply with that order or seek to modify its terms. And in its severance ruling, the superior court specifically found that Father had not acted unreasonably by requiring Mother to comply with the court order before he would allow her to exercise parenting time, especially considering Mother's history of inconsistent contact with M.S. and her opioid addiction.
¶14 Moreover, unlike the father in Calvin B. who consistently "[did] something" to assert his rights to his son, see 232 Ariz. at 298, ¶ 29, Mother went years without visiting M.S. Sending an occasional email or card to inquire about the status of one's child is not sufficient to "vigorously assert" parental rights and prevent a finding of abandonment. See Michael J., 196 Ariz. at 250, ¶ 22 (citation omitted). Accordingly, reasonable evidence supports the superior court's finding of abandonment.
Because sufficient evidence supports the superior court's finding of abandonment, we need not address Mother's arguments pertaining to the substance-abuse severance ground. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
II. Best Interests.
¶15 Mother next argues that the superior court erred by finding that termination of her parental rights was in M.S.'s best interests. Termination of parental rights is in the child's best interests if the child would benefit from severance or be harmed by a denial of severance. Alma S., 245 Ariz. at 150, ¶ 13. A prospective adoption is one such benefit that may support a best-interests finding. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4-5, ¶ 16 (2016).
¶16 Here, the evidence showed that M.S. was a bright, happy child who thrived with Father. Father's wife evidenced a strong relationship with M.S. and expressed interest in adopting her, which supports a finding of best interests. See id. at 5-6, ¶¶ 20-21. Although Mother claims that severance was not in M.S.'s best interests because Father's current marriage may end as quickly as Mother's marriage to Father, this argument simply challenges the superior court's assessment of conflicting evidence, and we do not reweigh the evidence on appeal. See Jesus M., 203 Ariz. at 282, ¶ 12. We thus affirm the superior court's best-interests finding.
CONCLUSION
¶17 For the foregoing reasons, we affirm.