Opinion
1 CA-JV 12-0281
06-11-2013
NANCY N., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, S.F., Appellees.
Thomas C. Horne, Attorney General By Eric Devany, Assistant Attorney General Attorneys for Appellee Robert D. Rosanelli, Attorney at Law By Robert D. Rosanelli Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD507040
The Honorable Peter A. Thompson, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Eric Devany, Assistant Attorney General
Attorneys for Appellee
Mesa Robert D. Rosanelli, Attorney at Law
By Robert D. Rosanelli
Attorney for Appellant
Phoenix NORRIS, Judge ¶1 Nancy N. ("Mother") appeals the juvenile court's order terminating her parental rights to S.F. ("Child"). On appeal, Mother argues the evidence does not support the juvenile court's findings she had abandoned Child under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1) (Supp. 2012) and it was in Child's best interests to terminate Mother's parental rights. Because substantial evidence supported the court's findings, we disagree with both arguments, and therefore affirm the juvenile court's termination order.
We have amended the caption pursuant to this court's Administrative Order 2013-001
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological mother of Child, who was born with serious medical conditions. Child requires care "24 hours a day" and constant monitoring because she needs gastrostomy tube feeding, a ventilator "to breathe for her," daily breathing treatments, and "staggered" doses of medication. ¶3 In November 2007, Mother and her husband were having financial difficulties in Arizona and decided to relocate to Syria. Mother contacted Child Protective Services ("CPS") because she could not take Child to Syria, and intended to leave Child with a family friend who had been Child's nurse for several years. ¶4 On November 28, 2007, CPS took Child into custody and placed her with the family friend. On November 29, 2007, the Arizona Department of Economic Security ("ADES") filed a dependency petition, alleging Mother was unable and unwilling to parent and was abandoning Child. In December 2007, Mother left for Syria, with no plan to return, and did not give CPS her location or contact information in Syria. ¶5 In February 2008, the juvenile court found Child dependent as to Mother, and subsequently, approved a case plan of family reunification. In March 2008, Mother briefly returned to the United States to "take care of [her] taxes." During the trip, she visited Child for three days. In August 2008, the juvenile court changed the case plan to long-term foster care. ¶6 In May 2009, CPS determined the family friend, due to health issues, could no longer care for Child. In September 2009, CPS placed Child with a foster home licensed to provide care for children with developmental disabilities. After being placed with foster parents, Child experienced significant improvements in her overall health. ¶7 After approximately two years in Syria, Mother returned to the United States and moved to Tennessee to start a business. In March 2010, she moved to Arizona to pursue another business opportunity. After Mother's return, the foster mother gave her "unfettered access" to Child. Mother, however, made only short visits, approximately once a month to see Child. For the next two years -- before the court changed the case plan to severance and adoption in July 2012 Mother brought Child only two gifts and did not provide Child with any clothing or financial support. ¶8 After ADES moved to terminate Mother's parental rights on abandonment grounds in August 2012, Mother started to visit Child once a week, and brought Child more toys and two gift cards for $10 and $20. Following a two-day contested severance hearing, the juvenile court found Mother had abandoned Child, and termination was in Child's best interests.
The court also called the case plan an "[a]lternative [p]lanned [p]ermanent [l]iving [a]rrangement.
DISCUSSION
¶9 A juvenile court may terminate parental rights upon finding that clear and convincing evidence demonstrates at least one statutory ground for termination and a preponderance of evidence shows termination is in the best interests of the child. Raymond F. v. Ariz. Dep't. of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010). We will not disturb the juvenile court's decision to terminate parental rights "absent an abuse of discretion or unless the court's findings of fact were clearly erroneous, i.e., there is no reasonable evidence to support them." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (citation omitted). ¶10 Section 8-531(1) defines abandonment as
the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providingA.R.S. § 8-531(1) (2007) (emphasis added). Under A.R.S. § 8-533(B)(1), the court may terminate parental rights if the parent "has abandoned the child," as measured objectively by the parent's conduct. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (2000) (test for abandonment is "whether a parent has provided reasonable support, maintained regular contact, made more than minimal efforts to support and communicate with the child, and maintained a normal parental relationship"). ¶11 Mother first argues she had not abandoned Child when she was in Syria from December 2007 to January 2010. Specifically, Mother argues she had made "appropriate provisions" for Child by leaving her with the family friend, and while in Syria, had "kept in communication" with the family friend and visited Child once. The record, however, does not support these arguments. ¶12 As the record amply reflects, while in Syria, Mother failed to make proper arrangements for Child, have regular contact with her, or provide reasonable support. Mother left Child with the family friend without any plan of returning to the United States, and did not arrange a guardianship or other legal authorization for Child's care. During this two-year period, other than one three-day visit, Mother did not have any contact with Child. As the CPS case manager testified, Mother did not send Child any gifts, clothing, letters, or provide Child with financial support. Mother also never contacted CPS to inquire about Child's well-being, and did not even give CPS any emergency contact information. Although Mother testified she had called the family friend "[a]t least three, [or] four times" from Syria, she admitted she had not known CPS had placed Child with the foster parents until she returned to the United States. This record, thus, does not demonstrate Mother, during her time in Syria, "kept in communication" and maintained a normal parental relationship with Child. ¶13 Mother next argues that after she returned to Arizona in March 2010, she maintained "as much of an actual relationship with [Child] as [was] possible," given Child's disabilities. She contends she had made "sufficient efforts" by visiting Child "on a regular basis," and "[a]dditional efforts would not have had any impact on" Child. Based on our review of the record, we disagree with these arguments. ¶14 Child, although non-verbal, was capable of responding to her surroundings and forming a meaningful relationship with others through regular contact and interaction. The foster mother testified Child "knows what's happening" around her, "likes company," and "likes to cuddle and hug and play"; when people visit her, she will "turn[] around and look[] at them and start jabbering at them." The foster mother also testified Child "knows the difference between a stranger" and a regular visitor. After Mother returned to Arizona, Child did not recognize her because "she only came once a month," but after ADES filed the severance petition in August 2012, and Mother began to visit weekly, Child recognized her and "start[ed] jabbering [at her] right away." The foster mother further testified Child not only recognizes her, but "hugs" her and "turns to [her] voice." ¶15 Mother, however, failed to develop a meaningful relationship with Child after she returned to Arizona. Before ADES moved to terminate her parental rights, Mother only visited Child once a month and spent "15 to 20 minutes" with her. During those visits, Mother did not help Child with her feeding, breathing treatments, or bathing. Even after the foster mother had discussed with Mother a do-not-resuscitate order Child's doctor submitted during Child's hospitalization in 2010, Mother did not increase her visits with Child. ¶16 Further, Mother made minimal effort to meet Child's basic and special needs and demonstrate her willingness to be actively involved in Child's life. From March 2010 to August 2012, Mother gave Child only two toys and did not send her any clothing or money. As the foster mother testified, Mother said Child "[didn't] need anything," and gifts "[didn't] really matter" because Child "[didn't] understand anyway." Also, Mother attended only "two or three" of Child's medical appointments in the first year since she returned to Arizona, and had no contact with Child's treating physician for a "few years." ¶17 Although Mother had additional contact with Child after ADES filed the severance petition -- increasing her visitation and bringing Child more gifts -- her efforts were too little too late. As the foster mother testified, other than those modest efforts, Mother did not do anything "differently." Further, as the CPS case manager testified, Mother maintained only "[m]inimal" contact with CPS, never asked about Child's placement or requested to "reengage in [reunification] services," and did not take active measures to show she was "willing or able" to parent Child and wanted to reunify with her. Given this evidence, the juvenile court did not abuse its discretion in finding Mother had abandoned Child. ¶18 Additionally, on this record, the juvenile court did not abuse its discretion in finding ADES had demonstrated by a preponderance of the evidence termination was in Child's best interests. ¶19 Contrary to Mother's argument on appeal that Child's medical needs could be fully "met through physicians, [a] nurse and [a] caregiver," and thus, termination would serve "no purpose," the foster mother testified the level of care Child required was "more intense" than what Mother thought, and the foster mother was required to monitor Child constantly. As the foster mother testified, her efforts to be "proactive" about Child's care were successful because, under her care, Child had less hospitalization and could breathe without the ventilator "for several hours a day." While Mother received medical training and knew about Child's medical history, as discussed, she had not been to Child's medical appointments for years and had not assisted Child with her medical needs during the visits. ¶20 Further, as the CPS case manager testified, termination would benefit Child because it would provide Child permanency and stability, and allowed the foster parents to adopt Child and make medical decisions for her. Based on our review of the record, substantial evidence supported the juvenile court's findings Child was adoptable, the foster parents were "ready, willing and able to adopt," and they could meet all of Child's "medical, emotional, educational, social, physical and extensive special needs." Therefore, the juvenile court did not abuse its discretion in finding termination served Child's best interests by making her available for adoption in a "safe, permanent and stable home." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 14, 53 P.3d 203, 207 (App. 2002) (in determining child's best interests, court may consider availability of adoptive placement, or whether existing placement is meeting child's needs).
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.
On appeal, Mother suggests the test for abandonment is whether a parent's conduct "implies a conscious disregard" of parental obligations. Our supreme court, however, has expressly rejected the common law conscious disregard test. Michael J., 196 Ariz. at 249-50, ¶¶ 15-18, 995 P.2d at 685-86; see also Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶¶ 15-16, 243 P.3d 636, 639 (App. 2010) (recognizing change in law).
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CONCLUSION
¶21 For the foregoing reasons, we affirm the juvenile court's order terminating Mother's parental rights.
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PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ________________
MICHAEL J. BROWN, Judge
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JOHN C. GEMMILL, Judge