Nicole P. v. ADES, Esperanza M.

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE NICOLE P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ESPERANZA M., and ESTRELLA P., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 11/18/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-JV 10-0032 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD507082 The Honorable Raymond P. Lee, Judge AFFIRMED Sandra L. Massetto Attorney for Appellant Phoenix Terry Goddard, Attorney General Phoenix By Amanda Holguin, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security N O R R I S, Judge ¶1 Nicole court s order P. ( Mother ) terminating her timely appeals parental the juvenile relationship Esperanza M. and Estrella P. (collectively, daughters ). with On appeal, Mother argues the evidence was insufficient to show, first, Mother abandoned daughters; second, Mother was unable to remedy the situation causing daughters to be in out-of-home placement for 15 months or longer; and third, termination was in daughters best interests. Because substantial evidence supported the court s factual findings, we affirm the court s termination order. FACTS AND PROCEDURAL BACKGROUND ¶2 Child Protective Services ( CPS ) began investigating Mother after police arrested Esperanza s father for murder in November 2004. At that time, Flor B. ( Grandmother ) obtained custody of Esperanza, who was born in May 2004. gave Grandmother power of attorney over consented to her guardianship of Esperanza. Esperanza was living with Grandmother, In 2005, Mother Esperanza and later In May 2006, while Mother gave birth to Estrella. ¶3 revoke In January 2007, the court granted Mother s motion to the custody. guardianship Several months and placed later, Esperanza however, the in Mother s court granted emergency custody of daughters to Grandmother in Arizona because Mother had moved to Wisconsin with daughters to resolve a past criminal matter. 1 Mother did not appeal this order. 1 At the time of the termination hearing, Mother had failed to resolve her criminal matter -- she is on probation in Wisconsin until December 2010. 2 ¶4 Later that year, a guardian ad litem ( GAL ) for daughters petitioned the court for dependency, alleging Mother was unable or unwilling to parent daughters. 2 protective hearing, the juvenile court At a preliminary adjudicated daughters dependent and committed them to Arizona Department of Economic Security ( ADES ) care. 3 with Grandmother in Since July 2007, daughters have lived Arizona, and Mother has remained in Wisconsin, visiting daughters only three times and failing to maintain consistent contact with them. ¶5 After a trial, the juvenile court terminated Mother s parental rights, finding by clear and convincing evidence two statutory grounds for terminating parental rights -- first, abandonment under Arizona Revised Statutes ( A.R.S. ) section 8533(B)(1) (Supp. 2009) and, second, out-of-home placement for 15 months or longer under A.R.S. § 8-533(B)(8)(c). found by a preponderance of the evidence The court also that terminating Mother s parental rights was in daughters best interests. 2 Specifically, the GAL alleged Mother was unable to provide housing and basic needs for daughters, had unresolved criminal charges in Arizona and Wisconsin, and had possible mental health and drug abuse issues. 3 The court also recommended Mother participate in services. Mother partially complied by submitting to a bonding assessment, psychological evaluation, urinalysis testing, and some individual and family counseling, but she failed to attend parenting classes tailored to providing for daughters special needs, among other suggested services. 3 DISCUSSION I. Abandonment Pursuant to A.R.S. § 8-533(B)(1) ¶6 Mother contends the evidence was insufficient to show Mother abandoned daughters. supports the juvenile We disagree. court s We find the evidence finding Mother abandoned daughters. 4 ¶7 The relationship demonstrating juvenile upon a court finding statutory may terminate clear ground and the parent-child convincing for termination evidence and a preponderance of the evidence demonstrating termination is in the child s best interests. Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010); see A.R.S. § 8-533(B). may terminate abandoned the the Under A.R.S. § 8-533(B)(1), the court parent-child child, 5 as relationship measured by the if the parent s parent conduct. 4 We will not disturb the juvenile court s decision to terminate parental rights unless the court abused its discretion or its findings were clearly erroneous. Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (quoting Maricopa Cnty. Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996)). 5 Under A.R.S. § 8-531(1) (2007), abandonment is defined as: [T]he 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 4 Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). ¶8 Mother visited daughters only three times after July 2007 6 and failed to call consistently 7 or send cards, gifts, or financial support regularly to daughters. 8 Furthermore, although Mother precluded argues visiting her Arizona, financial the CPS situation case manager testified her CPS from would arrange visits for Mother if she requested, and, nevertheless, Mother could other means. have maintained Moreover, contact Mother could with have daughters through transferred her probation to Arizona thus facilitating contact with daughters, but Mother refused to consider this option because she would have to start all over again. Mother further argues CPS told Grandmother she was not required to allow Mother to speak to [daughters] by telephone. Although Grandmother testified CPS 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. 6 Mother paid for one visit, and CPS paid for another visit. 7 Mother would call every week for one month but then would fail to call for one to two months at a time. 8 Over the three years daughters lived with Grandmother, Mother sent only two Christmas and two birthday cards to daughters, sent photographs only twice, brought small gifts during one visit, and failed to provide any financial support. 5 told her she did not have to force daughters to speak to Mother, she testified she did not prevent Mother from speaking to daughters at any time. ¶9 We view the evidence in the light most favorable to affirming the judgment, Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009), and as the trier of fact in a termination proceeding, the juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). The record supports the court s finding Mother abandoned daughters because Mother consented to Grandmother s guardianship of Esperanza from 2005 to the end of 2006, did not appeal the 2007 emergency custody award to Grandmother, had only sporadic contact with daughters since July 2007, failed to maintain a normal parentchild relationship with daughters, and failed to take steps to strengthen emotional bonds with daughters. Thus, we hold the juvenile court did not abuse its discretion when it found Mother had abandoned daughters. 9 9 We need not address Mother s argument challenging the sufficiency of the evidence of the court s other reason for terminating Mother s parental rights - continuous, courtordered, out-of-home placement for at least 15 months under A.R.S. § 8-533(B)(8)(c). See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000) (only 6 II. Best Interests ¶10 to Mother further contends the evidence was insufficient show termination disagree. In termination, was addition the in daughters best to finding statutory juvenile court a must interests. ground determine by We for a preponderance of the evidence that terminating the parent-child relationship is in the child s best interests. See A.R.S. § 8- 533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). To prove termination is in the child s best interests, the petitioner must present credible evidence showing the child would benefit from a severance or be harmed by the continuation of the relationship. Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (quoting Maricopa Cnty. Juv. Action No. JS-500274, 180 Ariz. 348, omitted). the 352, 884 P.2d 234, 238 (App. 1994)) (emphasis Ultimately, however, [w]hether [termination] is in child s best interests juvenile court to determine. is a question of fact for the Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). ¶11 Mother argues it is in daughters best interests for them to be returned to her custody. In support, Mother notes the GAL reported seeing affection and a bond between Mother and need to find one statutory basis to affirm the juvenile court s termination of parental rights). 7 daughters, and the GAL expressed concerns about the breakup of the parental relationship. The juvenile court rejected this argument, noting Esperanza s somewhat angry interaction with Mother during attachment the between bonding assessment Mother and and daughters an overall because lack Mother of had failed to maintain a normal relationship with them. 10 ¶12 In its best interests analysis, the court considered the availability of an appropriate adoptive placement meeting daughters needs. See Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1292 (App. 1998). daughters reside significant with relationship committed to Mother s parental Grandmother Likewise, Grandmother, adopting can not and adopt healthy them. 11 rights them terminating with The would and they attachment court benefit give Mother s whom a who is terminating daughters them rights daughters of permanency and a normal life. have and found a Here, stable would because home. deprive Thus, the juvenile 10 We will accept the juvenile court s factual findings unless no reasonable evidence supports those findings. Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. 11 The court specifically noted each daughter had significant special needs -- Esperanza suffers from serious psychological problems and comprehensive neurological and behavioral deficits; Estrella is 25-50% delayed in perception, motor skills, cognition, and emotional development, and 50% delayed in communication -- and, accordingly, the court found placement with Grandmother the least restrictive placement consistent with the needs of the children. 8 court did not abuse its discretion when it found terminating Mother s parental rights was in daughters best interests. CONCLUSION ¶13 For the foregoing reasons, we affirm the juvenile court s termination order. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 9

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