Opinion
No. 1 CA-JV 14-0346
06-11-2015
JONATHAN G., Appellant, v. TIFFANY G., M.G., S.G., Appellees.
COUNSEL Erika A. Arlington, Esq., PC, Flagstaff By Erika A. Arlington Counsel for Appellant Lundberg & Martinez, Bullhead City By David H. Martinez Counsel for Appellees M.G., S. G. Tiffany G., Kingman Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015SV201400011
The Honorable Richard Weiss, Judge
AFFIRMED
COUNSEL Erika A. Arlington, Esq., PC, Flagstaff
By Erika A. Arlington
Counsel for Appellant
Lundberg & Martinez, Bullhead City
By David H. Martinez
Counsel for Appellees M.G., S. G.
Tiffany G., Kingman
Appellee
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined. CATTANI, Judge:
¶1 Jonathan G. ("Father") appeals from the superior court's ruling terminating his parental rights as to M.G. and S.G. in this private severance action. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father have two children in common: M.G., born in March 2007, and S.G., born in March 2008. On the night of December 22, 2013, Father grabbed each child by the hair and pulled them upward onto their toes, shaking them violently. When the children's grandmother saw him, Father released the children and yelled at them to go to bed. The grandmother characterized the children as "obviously terrified at that point." Father disputed this version of events, claiming instead that he had grabbed the children by the back of their necks, not their hair, when they had tried to run from him, apparently at bedtime.
¶3 Less than one week later, Mother sought an ex parte order of protection against Father. The order of protection required that Father have no contact with Mother and that Father not go near Mother's home or work, but it did not otherwise restrict contact with the children.
¶4 Father had no contact with the children after December 2013, and made no efforts to contact them. He subsequently asserted that he understood that Mother's order of protection applied to the children as well. But Father did not send the children any cards, gifts, or letters, and he did not provide any financial support after December 2013. Nor did he contest or seek to modify the order of protection, or otherwise seek contact with the children through legal proceedings.
¶5 Father was later arrested in June 2014 and charged with two counts of burglary and one of theft. One week later, Mother filed a severance petition seeking to terminate Father's parental rights, as relevant here, on the basis of abandonment. After a contested hearing, the superior court found that Father had abandoned the children and that severance would be in the children's best interests, and entered a written order terminating Father's parental rights as to M.G. and S.G.
¶6 Father timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 8-235(A).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶7 The superior court is authorized to terminate a parent-child relationship if clear and convincing evidence supports at least one statutory ground for severance and a preponderance of the evidence shows that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review a severance order for an abuse of discretion, accepting the court's factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
¶8 One statutory ground for severance is abandonment, defined as:
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); see also A.R.S. § 8-533(B)(1). Abandonment is measured objectively on the basis of a parent's conduct, not his subjective intent. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (2000).
¶9 We have recognized that "[one] parent may not restrict the other parent from interacting with their child and then petition to terminate the latter's rights for abandonment." Calvin B. v. Brittany B., 232 Ariz. 292, 297, ¶ 21, 304 P.3d 1115, 1120 (App. 2013) (as modified). Nevertheless, 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"; the parent must "do something, because conduct speaks louder than words or subjective intent." Michael J., 196 Ariz. at 250, ¶ 22, 995 P.2d at 686 (citations omitted).
¶10 Here, Father does not dispute that he had not provided any support and had not contacted the children for just under one year at the time of the severance hearing, and he had not made any efforts to do so. Father nevertheless argues that the order of protection—or at least his understanding of the order of protection—prevented him from maintaining a relationship with the children.
¶11 But the order of protection by its terms only restricted contact with Mother, not with the children. Although Father testified that he would have reached out to the children but for his belief regarding the scope of the order of protection, that at most weighs on his subjective intent. See Michael J., 196 Ariz. at 249-50, ¶ 18, 995 P.2d at 685-86. And, Father's apparent misunderstanding of the scope of the order of protection notwithstanding, he never took any action—for instance, seeking to modify the order, an option noted on the order itself—to ensure a continued relationship with the children. Compare Calvin B., 232 Ariz. at 297-98, ¶¶ 22-29, 304 P.3d at 1120-21 (holding that a finding of abandonment was improper when an order of protection restricted access to both mother and child, father sought and obtained a parenting time order, and "throughout the child's life, [father] actively sought more involvement with their son than [mother] would allow"). Because Father failed to provide any support, failed to maintain any contact, and failed to make any efforts to do so for a year, the record supports the superior court's finding that Father abandoned the children.
¶12 Father also argues that Mother failed to present sufficient evidence that severance would be in the children's best interests. Termination of the parent-child relationship is in a child's best interests if the child would be harmed if the relationship continued or would benefit from the termination. Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. Multiple witnesses testified that Father was physically, mentally, and emotionally abusive toward the children, although they did not recount specific instances other than the December 22, 2013 incident. Although Father disputed the details, competent evidence showed that Father had physically harmed the children on at least one occasion and that the children were afraid of him. Even Father's characterization of the December 22, 2013 incident acknowledged that he had physically "grabbed [the children] by the back of their neck." To the extent Father's description contradicted Mother's version of events, we defer to the superior court's credibility determinations and its weighing of disputed facts. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). Although the evidence was not overwhelming, sufficient evidence supported the conclusion that the children would be harmed by a continued relationship with Father, and thus that severance would be in their best interests.
CONCLUSION
¶13 The severance order is affirmed.