Opinion
No. 1 CA-JV 14-0199
12-18-2014
STEPHEN B., Appellant, v. GRICELDA W., A.B., Appellees.
COUNSEL David W. Bell, Attorney at Law, Mesa Counsel for Appellant Gillespie, Shields & Durrant, Mesa By Elijah K. Nielson Counsel for Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. JS17249
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL David W. Bell, Attorney at Law, Mesa
Counsel for Appellant
Gillespie, Shields & Durrant, Mesa
By Elijah K. Nielson
Counsel for Appellee
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. KESSLER, Judge:
¶1 Stephen B. ("Father"), appeals the superior court's termination of his parental rights to A.B., his eleven-year-old child. Father argues that the court erred in severing the relationship based on abandonment because Father had filed an action seeking emergency custody of A.B. before Gricelda W. ("Mother") filed a petition for severance against him and that Mother blocked his limited efforts to have contact with A.B. He also argues severance is not in A.B.'s best interests because A.B.'s desire to be adopted by his long-term Stepfather and the possibility of such adoption "does not provide an increase in permanency and stability" for A.B. and there is no "readily apparent detriment in preserving" Father's parental rights. For the following reasons, we affirm the superior court's judgment severing Father's parental rights to A.B.
FACTUAL AND PROCEDURAL HISTORY
We review the facts in the light most favorable to affirm the trial court. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2011).
¶2 A.B. was born in 2003. Father, who was not married to Mother, refused to have his name be placed on the birth certificate. Mother and Father separated in 2007.
¶3 It is undisputed that Father had little or no contact with A.B. since 2008 and no contact since 2010. Tragically, in 2013, A.B.'s sibling died in the hospital after an accident. A.B.'s sibling was also Father's biological child with Mother. While A.B.'s sibling was in the hospital, Father filed an emergency petition in the family court seeking sole legal decision-making authority and primary residential custody over the children. At an ex parte hearing in July 2013 at which Father appeared, the family court denied Father's petition "because Father is not legally established as the Father of the minor child." Nonetheless, Father was permitted to see A.B.'s sibling at the hospital upon Mother's agreement.
¶4 Both before and after Father's custody petition in 2013, he did not take any action to see A.B. nor have any regular contact with A.B. or A.B.'s sibling. Father admitted that he had only seen A.B. twice since 2008 and that he never acknowledged A.B. on his birthday or otherwise, including on A.B.'s birthday shortly after Father filed the custody petition. Father admitted he never tried to communicate with A.B. though letters or gifts or make contact with A.B. through Mother or other family members despite knowing their whereabouts. In addition, Father testified that he never paid child support for A.B. and did not seek parenting time before 2013. Father stated he has five children and explained that his work history and income is sporadic, he is largely supported by his fiancé, and he only pays child support when he has a job because the payment is directly garnished from his paycheck. Finally, Father acknowledged that there was no legal reason why he was unable to contact or communicate with A.B., such as an order of protection and he knew where A.B. and other family members lived.
¶5 Several months after Father filed his custody petition, Mother petitioned for severance on the basis of abandonment, Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1) (2014), alleging Father did not have contact with A.B. since 2008, never paid child support, and was unwilling or unable to discharge parental responsibilities.
¶6 Mother and maternal grandmother testified regarding incidents of domestic violence between Mother and Father that required police involvement, Father's sister testified that the couple had loud arguments in front of family, and Father confirmed that the couple had loud arguments in front of the children. Mother testified that A.B. hardly remembers Father and to the extent he does his memories are unpleasant.
¶7 A social study established that Mother and Stepfather became a couple when A.B. was three years old. Throughout the next seven or eight years, Stepfather raised A.B. as his child, assisting Mother in the cost and care of parenting A.B. Stepfather wanted to adopt A.B. In the opinion of the case worker conducting the social study, A.B. was in a safe and stable home with Mother and Stepfather who have been providing, and are able to continue providing, for A.B.'s financial, emotional, and educational needs, and thus, severance of Father's rights was appropriate because A.B. can be adopted by Stepfather.
The couple married in 2010 and have a child together.
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¶8 Father agreed A.B. was in a good and stable situation with Mother and Stepfather, and stated that he would not want to remove A.B. from their care to live with Father. Father explained his petition was originally filed in response to the tragedy involving A.B.'s sibling because he wanted to be able to see his child at the hospital.
¶9 The superior court found clear and convincing evidence that Father abandoned A.B. The court noted that Father had the ability to keep in contact with the children and there was no evidence of any legal impediments to such contact. It also noted Father had many ways to contact Mother including through other family members to facilitate contact with A.B. The court found no evidence that Father tried to "vigorously pursue his parenting rights or to have any contact with [A.B.] at least since 2010," when A.B. was five years old, and only had contact a handful of times since A.B. was three years old. The court found Father had not given any support for A.B.'s care or made any contact with A.B. "for at least three years and thus, abandoned A.B. within the meaning of A.R.S. §§ 8-531(1) (2014) and -533(B) (1) (2014).
¶10 The court also found by a preponderance of the evidence that severance was in A.B.'s best interests both because maintaining the relationship would be detrimental to A.B. and severance would benefit A.B. The court noted that but for the tragic accident with A.B.'s sibling, "there is no indication that [Father] would have ever stepped up and tried to parent [A.B.]." The court found maintaining Father's rights and reintroducing him to A.B. would be detrimental to A.B.'s emotional and mental health and welfare. Specifically the court referenced testimony about past domestic violence between Mother and Father, screaming and arguing in front of the children, the involvement of police on multiple occasions, and evidence regarding A.B.'s memories of domestic violence and the negative effects of such violence.
¶11 Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003), and -2101(A)(1) (Supp. 2013).
DISCUSSION
¶12 To justify the severance of a parental relationship, one of the statutory grounds provided in A.R.S. § 8-533(B) must be found by clear and convincing evidence, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000), and the court must find by a preponderance of the evidence that severance of the relationship is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). Because the juvenile court is in the best position to weigh evidence and judge credibility, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). We will affirm a lower court's findings of fact when there is any reasonable evidence in the record that justifies the decision. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009) (internal quotation marks and citation omitted). I. Father's family court petition for custody does not per se preclude a finding of abandonment pursuant to A.R.S. § 8-533(B)(1).
¶13 We disagree with Father's argument that the superior court erred by finding Father abandoned A.B. for purposes of A.R.S. § 8-533(B)(1) because he filed an emergency custody motion seeking sole legal decision making authority over A.B. and to be A.B.'s primary residential parent after at least three years of no contact with A.B. or Mother and with no attempt to contact or support A.B. after the custody motion was denied. We also find little support for his suggestions that Mother blocked Father's efforts to contact or support A.B., Mother having denied blocking such contact and Father conceding he did not seek to actively stay in contact with A.B. before or after the filing of his custody petition.
¶14 As the definition of abandonment makes clear, whether abandonment has occurred within the meaning of the statute involves a factual inquiry and analysis based on the circumstances in a given case:
the 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) (emphasis added); see also Matter of Appeal In Pima County Severance Action No. S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985) (holding that issues of abandonment and intent are generally questions of fact to be resolved by the trial court).
¶15 A parent must provide "reasonable support," and maintain "regular contact," including providing "normal supervision." A.R.S. § 8-531(1). Father does not attempt to rebut the evidence establishing abandonment and acknowledges that he has not provided support for A.B. or maintained contact with A.B. for much of A.B.'s life including no contact for at least three years. See supra ¶¶ 3-4.
¶16 Father relies on Calvin B. v. Brittany B., G.B., 232 Ariz. 292, 293, ¶ 1, 304 P.3d 1115, 116 (App. 2013) to contend: "[Mother] cannot block [Father's] access to the child while claiming abandonment." However, this case is unlike Calvin B. because in that case the mother had continuously thwarted the father's efforts to parent the child at issue. Id. at 296-97, ¶¶ 21-25, 304 P.3d at 1119-20. Here there is no evidence to suggest the same. Mother denied such obstruction and to the extent there is conflicting testimony, we defer to the superior court to resolve such conflict. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. The evidence showed that Father knew at least where maternal grandmother lived as well as other family members and he admits that he did not make efforts to contact or support A.B. or otherwise assert his parental rights. The record supports the superior court's finding that Father was not prevented from maintaining contact with A.B.
¶17 Calvin B. is also distinguishable because the father in that case had "consistently 'done something' to assert his right to have contact with his son." Id. at 298, ¶ 29, 304 P.3d at 1121. Even if the evidence here established the existence of certain obstacles preventing Father from parenting A.B., a parent must demonstrate he or she has made efforts to overcome such obstacles and has attempted to fulfill parental responsibilities. Id. at 296, ¶ 20, 304 P.3d at 1119 ("When circumstances prevent . . . the father from exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary.") (internal quotation marks omitted)). Here, Father did not consistently or "vigorously assert" his parental rights and as the superior court found, had "truly minimal" contact with A.B. See 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.").
¶18 Curiously, Father's legal argument is that "Mother has acted too late to assert her claim" and "[s]he had a period of years where she could have made a claim, but only did so after Father asserted his rights." Father concedes: "Had Mother filed her termination motion prior to July 2013, Father would have had no argument to overcome the abandonment claim." Father does not support his contention with legal authority or explain how his custody petition after at least three years of no contact and no contact after the petition was filed precludes a finding that Father falls squarely within the statutory definition of a parent who has abandoned a child.
¶19 After three years with no contact or support and only "a handful" of contact before that, Father's petition for custody is insufficient to establish that he vigorously asserted his parental rights or made efforts to provide support and maintain regular contact with A.B. See A.R.S. § 8-531; Pima County Severance Action No. S-1607, 147 Ariz. at 239, 709 P.2d at 873 (noting father took no further action to have contact with child after petition for visitation filed and dismissed by stipulation). Indeed, the superior court found that but for the tragedy involving A.B.'s sibling, "there is no indication that [Father] would ever have stepped up and tried to parent [A.B.]." See Matter of Appeal in Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 98, 876 P.2d 1121, 1133 (1994); ("The father only asserted his interests in response to the petition to sever. If the adoptive parents had not acted, the evidence suggests that the father would have continued to do nothing.").
¶20 Finally, we do not believe, as Father contends, that a finding of abandonment under circumstances such as those here will have the effect of discouraging parents once they are "finally ready to step up to their responsibilities." Indeed, a prima facie case of abandonment is established after six months of no contact. A.R.S. § 8-531(1). Here, Father was entirely absent for at least three years. A child need not wait for years for their parent to be "finally ready." Moreover, the evidence does not suggest that Father was "finally ready," to support, parent, and have contact with A.B. because he made little or no effort to do so either before or after filing the custody petition.
¶21 Father fails to establish that there was insufficient evidence to support the superior court's severance of his parental rights to A.B. or rebut the evidence establishing abandonment presented to the court. There is ample evidence in the record to support the superior court's finding of abandonment under A.R.S. §§ 8-533(B) (1) and -531(1).
II. The record supports severance is in the child's best interests.
¶22 To establish severance was in A.B.'s best interests, Mother was required to show A.B. would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004). An "adoptive plan is one well-recognized example of such benefit." Id.
¶23 Father relies on Jose M. v. Eleanor J., 234 Ariz. 13, 17-18, ¶ 23, 316 P.3d 602, 606-07 (App. 2014), to argue severance is not in A.B.'s best interest "[b]ecause it appears that A.B.'s living arrangement" with Mother and Stepfather "already offers stability and permanence." He argues that Stepfather's "interest in adopting," "without more," does not establish severance would result in increased stability or permanency for A.B. "to the degree necessary to demonstrate a benefit warranting severance of Father's parental rights." We disagree.
¶24 In Jose M., we concluded that adoptability alone may not be enough to make a best interest determination for a child that is already in a stable and permanent non-foster care environment. Id. Here, however, there are additional factors that support the superior court's determination that severance is in A.B.'s best interests.
¶25 Specifically, the record shows and the superior court found that there had been domestic violence in the past between Mother and Father that required police involvement, based in part on Father's testimony that the couple had loud arguments in front of the children. Mother also testified that A.B. does not remember Father and to the extent he does his memories are unpleasant.
¶26 Father maintains the court had no basis to find that reintroducing Father into A.B.'s life would compound the tragedy that A.B. has already endured by being abandoned and the recent loss of his sibling. He contends there is no "readily apparent" harm to maintaining his parental rights. However, the evidence supports the court's determination that A.B. had been subjected to domestic violence in Father's presence and that to the extent A.B. remembers Father, it is unpleasant.
¶27 Finally, the evidence establishes that A.B. desires to be adopted by Stepfather and become fully a part of their family including taking Stepfather's last name. Father's assertion of his right to exercise control over A.B., after years of absenteeism and abandonment, threatens A.B.'s current stability and the stability of the family in which he has been raised for most of his life. A preponderance of the evidence supports the superior court's determination that severance will both benefit A.B., in part by permitting adoption, and will protect A.B. from harm to his current stability and family.
CONCLUSION
¶28 For all the reasons stated above, we affirm the order of the trial court severing Father's relationship with A.B. Mother has requested an award of attorneys' fees and costs. She has failed to identify a substantive basis for an award of attorneys' fees. Accordingly, we deny her request for an award of fees. Freeman v. Sorchych, 226 Ariz. 242, 252-53, ¶ 31, 245 P.3d 927, 937-38 (App. 2011). However, we will award her taxable costs on appeal upon timely compliance with Ariz. R. Civ. App. P. 21.