Opinion
2 CA-JV 2023-0001
05-10-2023
In re Termination of Parental Rights as to K.C.,
E.M. Hale Law PLLC, Lakeside By Elizabeth M. Hale Counsel for Appellant Law Office of Jeremy J. Waite P.C., Safford By Jeremy J. Waite Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Graham County No. SV202200009 The Honorable Travis W. Ragland, Judge Pro Tempore
E.M. Hale Law PLLC, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Law Office of Jeremy J. Waite P.C., Safford
By Jeremy J. Waite
Counsel for Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 In this private severance proceeding, Scott R. appeals from the juvenile court's December 2022 ruling terminating his parental rights to his son, K.C., born in April 2018. He challenges the sufficiency of the evidence to support the court's findings that he abandoned his son, see A.R.S. § 8-533(B)(1), and that termination of his parental rights was in K.C.'s best interests. For the reasons set forth below, we reverse.
¶2 Before the juvenile court may terminate a parent's rights, it must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the facts in the light most favorable to sustaining the juvenile court's findings. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016).
¶3 Lisa C., K.C.'s mother, and Scott ended their relationship shortly after K.C. was born in April 2018. Scott did not see K.C. again until January 2019, when Lisa brought him to visit Scott in the rehabilitation facility where he was residing at the time. During the fourteen-month period between February 2019 and April 2020, Scott saw K.C. a few times per month, always in Lisa's presence. In March 2021, the juvenile court granted Scott's petition to establish paternity. Acknowledging that there was evidence that Scott had an alcohol abuse problem and that he had successfully completed "rehab," the court awarded the parents joint legal decision-making authority; designated Lisa the primary caregiver; created a parenting-time schedule for Scott to see K.C., permitting Lisa to request that he undergo four urinalysis tests during any three-month period; and ordered Scott to pay child support.
¶4 In September 2021, without a court order authorizing her to do so, Lisa unilaterally began prohibiting Scott from having contact with K.C., purportedly for her son's "protection and his safety." On September 17, 2021, when Lisa refused to bring K.C. to meet Scott for his scheduled visit, Scott called the Safford police, who documented the incident but did not contact Lisa. Scott sent Lisa text messages for several months after the incident, asking to see K.C. so he could give him a present or a hug, and asking her to tell K.C. that he loved him. Lisa did not respond to most of Scott's text messages, although she did inform him that she would not permit K.C. to be "around" drugs. In May 2022, Lisa filed a petition to terminate Scott's parental rights, alleging he had abandoned K.C., whom he had not seen since September 2021 (when Lisa failed to bring K.C. to the scheduled parenting-time exchange). See A.R.S. § 8-533(B)(1). On June 14, 2022, after several unsuccessful attempts in the prior months to secure the appropriate paperwork from the court, but before being served with Lisa's severance petition, Scott filed a petition to enforce the March 2021 parenting-time order. In that petition, he asserted Lisa had "refused to meet as scheduled for [his] visitation weekends and refuse[d] to let [him] speak to [his] son or see him at all."
Scott was not served with the petition to sever until June 24, 2022. He maintains, as he did at the severance hearing, that he was not aware Lisa had filed the petition to sever when he filed the petition to enforce his parenting time. He also testified that although he had attempted to file "paperwork" to enforce the March 2021 parenting-time order approximately three times before he filed the petition to enforce in June 2022, he was given the wrong paperwork in each instance.
¶5 In December 2022, following a two-day contested severance hearing held in September and November 2022, the juvenile court granted Lisa's petition. The court found that Scott had "not provided reasonable support, ha[d] sent no cards, gifts or letters, and . . . had no contact with the child for over six (6) months," and that Scott had "failed to maintain a normal parent child relationship, all without good cause." The court also noted that Scott had not paid any child support "since approximately July 2021 and [was] currently approximately $10,000.00 in arrears." The court concluded termination was in K.C.'s best interests, noting that he is adoptable and that Lisa's husband wanted to adopt him. This appeal followed.
At the conclusion of the first day of the hearing, which Scott failed to attend, the juvenile court permitted him to show good cause for his failure to appear. The court subsequently granted Scott's motion for good cause for non-appearance and continued the hearing for a second day in November 2022.
Lisa testified that her husband, who had been in K.C.'s life for two years, was a father figure to him and wanted to adopt him.
¶6 A parent abandons a child by failing "to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." 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." Id. "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. "[A]bandonment is measured not by a parent's subjective intent, but by the parent's conduct," Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 18 (2000), and "depend[s] on the circumstances of the particular case," Kenneth B. v. Tina B., 226 Ariz. 33, ¶ 19 (App. 2010).
¶7 On appeal, Scott contends the juvenile court abused its discretion by finding he abandoned K.C. He maintains Lisa "persistently and repeatedly prevented [him] from seeing his child, in violation of a court order and despite [his] repeated attempts to contact his son," so she could claim he had abandoned his child.
In his reply brief, Scott also asserts that Lisa argued at trial that the juvenile court should consider her allegations of substance abuse as a ground for severance, a ground he notes she had not alleged in her petition to terminate. However, he acknowledges that the court did not expressly address the substance abuse issue and did not rely on it in its ruling. In any event, because Scott did not raise this argument in his opening brief, we do not address it. See Marco C. v. Sean C., 218 Ariz. 216, n.1 (App. 2008) (appellate court will not address arguments raised for first time in reply brief).
¶8 In its ruling, the juvenile court provided a detailed summary of the facts it had considered, including the following:
That Father did file a Petition to Enforce on June 14, 2022.
That Mother began denying Father Parenting Time in September 2021, due to Father being charged with a DUI, and pleading guilty to Possession of Drug Paraphernalia.
That Father did make a police report re: Mother's refusal to allow Parenting Time and did attempt to communicate with Mother to get his Parenting Time.
That Father's testimony was that he obtained the incorrect paperwork to enforce his parenting time from the Clerk's Office on multiple occasions. However, Father never filed any of those documents.
That Father had further police contact in June of 2022, involving a suspected Drug DUI. However, no charges have been brought regarding this matter.
That it took Father eight (8) to nine (9) months from the time he was originally denied Parenting Time, to file his Petition to Enforce.
That Mother did in fact deny Father parenting time, after Father was suspected of a DUI.
That Mother did not file a Petition to Modify Parenting Time based on her concerns.
¶9 The record shows that the juvenile court considered both Scott's and Lisa's conduct, including Scott's multiple efforts to see K.C. Parents prevented from exercising traditional means of bonding with a child must "act persistently to establish the relationship" and "must vigorously assert" their legal rights. Michael J., 196 Ariz. 246, ¶ 22 (quoting In re Pima Cnty. Juv. Action No. S-114487 , 179 Ariz. 86, 97 (1994)); see also Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 29 (App. 2013). "What constitutes reasonable support, regular contact, and normal supervision varies from case to case." Pima Cnty. No. S-114487 , 179 Ariz. at 96.
¶10 Based on the above fact findings, the juvenile court determined that Scott had not provided reasonable support for K.C. or had contact with him for more than six months. The court ultimately concluded that, "while Mother did in fact deny the Father Parenting Time, Father did not act persistently to establish his relationship with the child, nor did he vigorously assert his legal rights to the extent necessary."
¶11 We do not reweigh the evidence presented to the juvenile court. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). Because the concept of abandonment and terms like "reasonable support" or "normal parental relationship" are imprecise and elastic, these are questions of fact usually left to the court to resolve. In re Maricopa Cnty. Juv. Action No. JS-4283 , 133 Ariz. 598, 601 (App. 1982); see also Michael J., 196 Ariz. 246, ¶ 20 (abandonment is primarily fact question). However, even viewing the facts in the light most favorable to sustaining the court's findings here, Demetrius, 239 Ariz. 1, ¶ 2, we conclude there was insufficient evidence to support the court's conclusion that Scott had abandoned K.C. We therefore reverse the court's ruling as to abandonment. See Jordan C., 223 Ariz. 86, ¶ 18.
¶12 The record shows that, despite the seeming futility of his repeated efforts, Scott repeatedly tried to contact Lisa by text message asking to see K.C., requesting that Lisa tell K.C. that Scott loved him, and asking permission to bring him gifts. Each time Scott did so, he was acting to establish his relationship with K.C. through Lisa, the only medium of communication that he had with K.C. See Michael J., 196 Ariz. 246, ¶ 22. In addition, Scott called the police when Lisa refused to meet him for his scheduled visit with K.C. in an effort to enforce his parental rights. He tried on multiple occasions, albeit initially unsuccessfully, to file a grievance with the juvenile court to report Lisa's refusal to comply with the court-ordered parenting time schedule, ultimately seeking court intervention through his petition to enforce. In so doing, he was attempting to assert his legal rights to K.C. Id. Merely because Scott was not successful in overcoming the obstacles that Lisa erected does not mean he abandoned K.C. To the contrary, the record establishes that Scott acted sufficiently persistently to assert his parenting rights. See id. While some parents might have given up after trying repeatedly to contact the other parent, attempting to file something with the court, and calling the police, Scott did not.
¶13 This court has previously reversed a trial court's finding of abandonment under circumstances strikingly similar to those here. In Calvin B., 232 Ariz. 292, ¶ 21, we held 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." We also rejected the suggestion that a parent whose visitation rights have been obstructed has a duty to "file anything with the [s]uperior [c]ourt . . . to establish his right to parent," when an existing court order already granted an entitlement to such parenting time. Id. ¶ 26. Thus, in first attempting to do so, and then appropriately filing his petition, Scott asserted his parental rights more vigorously than the appellant in Calvin B.
¶14 We also echo that case in observing that Scott has not been a model parent. Id. ¶ 25 ("We do not mean to suggest that Calvin always was diligent in . . . fulfilling his corresponding parental responsibilities."). Indeed, as Scott acknowledges, he did not comply with the child support order. But, we have repeatedly held that failure to pay child support, standing alone, is not a sufficient reason to find abandonment. See, e.g., In re Pima Cnty. Action No. S-1607 , 147 Ariz. 237, 239 (1985); Calvin B., 232 Ariz. 292, ¶ 20; In re Yuma Cnty. Juv. Ct. Action No. J-87-119, 161 Ariz. 537, 539 (App. 1989). Viewing these facts in conjunction with Lisa's persistent and admitted refusal to allow Scott access to K.C. in defiance of the court-ordered parenting-time schedule, we conclude that Lisa failed to present clear and convincing evidence that Scott abandoned K.C.
Just as Scott did not immediately seek court intervention to compel Lisa to abide by the parenting-time order, Lisa never sought court intervention to enforce the child support order.
¶15 Scott also argues that severing his parental rights was not in K.C.'s best interests, as doing so "will permanently deprive K.C. of the love and care of his real father, potentially causing [him] psychological harm." However, in light of our ruling, we need not address whether termination is in K.C.'s best interests.
¶16 Accordingly, we reverse the juvenile court's order terminating Scott's parental rights to K.C.