Opinion
No. 1 CA-JV 17-0282
12-21-2017
BOBBY C., Appellant, v. DEPARTMENT OF CHILD SAFETY, D.C., Appellees.
COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JS518105
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Jennifer M. Perkins joined. JONES, Judge:
¶1 Bobby C. (Father) appeals the termination of his parental rights to D.C. (Child). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the termination order. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008).
¶2 Child was removed from his mother's care in December 2015 when he was six months old and placed with his paternal great-aunts (the Aunts). At the time, Father was in prison in California and had not had contact with Child for two months. Father was notified of the proceedings and requested a paternity test.
Child's mother's parental rights were terminated in a separate proceeding, and she is not a party to this appeal.
¶3 In August 2016, the Department of Child Safety (DCS) petitioned to terminate Father's parental rights on the grounds of abandonment. Father did not attempt any meaningful contact with Child until after the petition was filed. He then sent two letters to Child in December 2016 and began placing collect calls to the Aunts from prison. When DCS advised him it was unfair to place the financial burden of these calls on the Aunts, Father's phone contact stopped. He did not provide any financial support for Child and did not engage with the Aunts to inquire as to Child's well-being or otherwise learn about Child's likes, dislikes, and personality. Father was released from prison four days prior to the trial but made no attempt to contact DCS or the Aunts to arrange visitation with Child.
¶4 At the May 2017 trial, the DCS caseworker testified Father had no relationship with Child. However, Child was in a safe, loving home with the Aunts, who were meeting his needs and willing to adopt him. Father acknowledged his lengthy history of, and ongoing, criminal activities but requested the juvenile court give him an opportunity to demonstrate he could parent Child.
¶5 After taking the matter under advisement, the juvenile court entered an order finding DCS proved by clear and convincing evidence a prima facie case of abandonment, which Father had not rebutted. The court also found DCS proved termination was in Child's best interests by a preponderance of the evidence and entered an order terminating Father's parental rights. Father timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
Absent material changes from the relevant date, we cite a statute's current version. --------
DISCUSSION
¶6 Father argues the juvenile court erred in concluding he abandoned Child. We review the juvenile court's order for an abuse of discretion and will affirm so long as substantial evidence supports it. Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 12 (App. 2010) (citing Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App. 2007)).
¶7 Parental rights may be terminated where a parent abandons the child. A.R.S. § 8-533(B)(1). Under these circumstances, abandonment is defined as "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). Abandonment is proven where there is "a judicial finding that a parent has made only minimal efforts to support and communicate with the child." A.R.S. § 8-531(1). Furthermore, prima facie evidence of abandonment is established by proof a parent "[f]ail[ed] to maintain a normal parental relationship with the child without just cause for a period of six months." Id. Reading these provisions together, "in deciding whether a parent has abandoned a child as defined in [A.R.S.] § 8-531(1), a court should consider each of the stated factors — whether a parent has provided 'reasonable support,' 'maintained regular contact with the child' and provided 'normal supervision.'" Kenneth B., 226 Ariz. at 37, ¶ 18. The juvenile court measures abandonment not by the parent's subjective intent, but by that parent's conduct, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 18 (2000), and its evaluation "will depend on the circumstances of the particular case," Kenneth B., 226 Ariz. at 37, ¶ 19.
¶8 Father does not contest the juvenile court's finding that he lacked a normal relationship with Child for more than six months prior to the termination hearing. He argues instead that he has good cause for failing to do so because, he contends, DCS "thwarted" his efforts to contact Child when it advised him he should pay for the phone calls to him. Father did not present this argument to the juvenile court and we are not persuaded by it on appeal.
¶9 Although DCS "may not unduly interfere with [a parent]'s ability to develop [the parent-child relationship]," Pima Cty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 94 (1994) (citing Lehr v. Robertson, 463 U.S. 248, 261 (1983)), "[t]he burden to act as a parent rests with the parent, who should assert his legal rights at the first and every opportunity," Michael J., 196 Ariz. at 251, ¶ 25 (citing S-114487, 179 Ariz. at 98). In asserting his parental rights, Father was required to "do more than just wait to respond or oppose" a severance petition. S-114487, 179 Ariz. at 98-99. Rather, Arizona law requires a parent who is "prevent[ed] . . . from exercising traditional methods of bonding with his child," to "act persistently to establish the relationship however possible." Michael J., 196 Ariz. at 250, ¶ 22; see also S-114487, 179 Ariz. at 99 (requiring a parent to "affirmatively act to establish his rights"). Father did neither.
¶10 Indeed, Father's conduct belies any argument that his lack of relationship with Child resulted from DCS's suggestion that he bear the financial burden of contacting Child. The record reflects Father did not even attempt to contact Child until a year after Child was taken into care and then initiated contact only after the termination petition was filed. See S-114478, 179 Ariz. at 98 (concluding from a parent's failure to act until after a termination petition was filed that, "had [the petitioner] not acted, the evidence suggests the father would have continued to do nothing"). Although Father knew how to contact Child and his caregivers, he did not: fund his phone calls; continue his collect calls at the Aunts' expense; seek information regarding Child from other paternal family members, the DCS caseworker, or his attorney; or try to establish contact with Child, DCS, or the Aunts following his release from prison. This is not a case involving an evaluation of the magnitude of a parent's efforts; it is a much more straightforward case where there are simply no efforts to be weighed. "Even if every allowance is made for lack of sophistication and limited resources, [we are] not compelled to believe that the father was actually stymied by a single verbal rebuff." Yuma Cty. Juv. Court Action No. J-87-119, 161 Ariz. 537, 540 (App. 1989).
¶11 Father's conduct, viewed objectively, establishes he was content to allow the Aunts to care for Child in his absence and, in doing so, failed to rebut the prima facie case of abandonment presented by DCS. See Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, 510-11 (App. 2008) (rejecting a parent's claim that he had good cause for failing to maintain a relationship with the child where the parent did not take any action to locate the child for a period of years and made only minimal efforts to contact the child); S-114487, 179 Ariz. at 99 (rejecting the claim of good cause where the parent "contacted a few attorneys . . . to ask some questions," but "did not ask any of them how he could protect his rights," actually retain an attorney, send support, or make any inquiries); J-87-119, 161 Ariz. at 540 (considering "the father's failure to do anything except make one telephone call [as] powerful evidence of his intent" and rejecting the claim of good cause).
CONCLUSION
¶12 The order terminating Father's parental rights to Child is affirmed.