Robert v. Gabriela N., et al

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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 ROBERT V., ) ) ) ) ) ) ) ) ) ) Appellant, v. GABRIELA N., MICHAEL V., Appellees. 1 CA-JV 10-0097 DIVISION ONE FILED: 11-02-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Yuma County Cause No. S1400JS20090356 The Honorable John N. Nelson, Judge AFFIRMED Law Offices of Kelly A. Smith By Kelly A. Smith Attorneys for Appellant Yuma Metcalf & Metcalf, PC By Janet H. Metcalf Attorneys for Appellee Gabriela N. Yuma N O R R I S, Judge ¶1 court s Robert order V. ( Father ) terminating son, Michael V. ( Son ). his timely parental appeals the relationship juvenile with his On appeal, Father argues we should vacate the termination order because: (1) Gabriela N. ( Mother ) failed to present clear and convincing evidence showing Father had intentionally abandoned Son, (2) the juvenile court failed to make the necessary factual findings to determine termination was in Son s best interests, and (3) Father s court-appointed counsel was substantiate ineffective. Father s Because arguments, the we record affirm fails the to court s termination order. FACTS AND PROCEDURAL BACKGROUND ¶2 2000. Son was born to Mother and Father on November 27, On January 8, 2003, the superior court dissolved Mother and Father s marriage, awarded Mother primary custody of Son, and granted Father visitation rights. For the next seven years, Father saw Son infrequently -- once or twice a week for two months after the divorce, less frequently for the remainder of 2003, and for the last time in November 2005 for only a few hours at Son s fifth birthday party. ¶3 In 2009, after becoming current on his child support payments, Father moved to modify parenting time. Father s petition rights. At trial, both Father and Mother testified along with several other and simultaneously witnesses. Mother moved to Mother opposed introduced sever into Father s evidence a social study report prepared by Nancy Friends, a court-appointed licensed professional counselor. After trial, the juvenile court terminated Father s parental rights, finding by clear and 2 convincing evidence Father had abandoned Son, a statutory ground for terminating parental rights under Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1) (Supp. 2009). found by a preponderance of the The court also evidence that terminating Father s parental rights was in Son s best interests. DISCUSSION I. Sufficiency of the Evidence: Abandonment and Best Interests ¶4 The juvenile court may terminate parental rights upon finding clear and convincing evidence demonstrating a statutory ground for termination demonstrating and termination is a preponderance in the of child s the best evidence 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). A. Abandonment Pursuant to A.R.S. § 8-533(B)(1) ¶5 Father contends Mother failed to present clear and convincing evidence Father had intentionally abandoned Son. We disagree. ¶6 Under A.R.S. § 8-533(B)(1), the juvenile court may terminate the parent-child relationship if the parent abandoned the child. As an initial matter, under A.R.S. § 8-531(1) (2007), the statutory ground of abandonment no longer requires the intent to abandon. 1 Rather, abandonment is measured by a 1 Under A.R.S. § 8-531(1), abandonment is defined as: 3 parent s conduct. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). ¶7 Here, the record amply supports the juvenile court s finding that Father, through his conduct, abandoned Son. 2 juvenile court found Father last saw Son briefly at The Son s birthday party in 2005, and before that only when Son was three years old. Father thus had not seen Son since November 2005, nor made any effort to contact Son between 2005 and 2009 -- well over the six months required for a prima facie abandonment case. Although Father argues Mother conditioned his right to see Son on Father becoming current on all child support, the juvenile court rejected this argument testimony to the contrary. is in the best position finding more credible Mother s The juvenile court, not this court, to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed [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 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. 2 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)). 4 facts. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). Thus, on this record, the juvenile discretion court did not abuse its in determining Father abandoned Son. B. Best Interests Pursuant to A.R.S. § 8-533(B) ¶8 Father further contends the juvenile court failed to make the necessary factual findings to conclude termination was in Son s best interests. He argues the court was not in the position to determine termination was in Son s best interests because it did not make specific factual findings as to how Son would benefit from the termination continuation of Father s rights. 3 ¶9 In termination, addition the to juvenile or be harmed by the ground for We disagree. finding court a statutory must determine by 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). the child s best When determining whether termination is in interests, the court need not use specific benefit or harm language, but need only identify facts to support its conclusion. See In re Appeal in Maricopa Cnty. Juv. 3 Father does not challenge, however, the factual bases for the court s findings. 5 Action No. JS-500274, 167 Ariz. 1, 5-6, 804 P.2d 730, 734-735 (1990). ¶10 In its preliminary findings and final order, the court explained in detail its bases for concluding Son would benefit from the termination. 4 Whether [termination] is in the child s best interests is a question of fact for the juvenile court to determine. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). the juvenile court s factual findings evidence supports those findings. 205. Thus, the juvenile court unless We will accept no reasonable Id. at 280, ¶ 4, 53 P.3d at made the necessary findings required to conclude terminating Father s parental rights was in Son s best interests. II. Ineffective Assistance of Counsel ¶11 Father also argues we should vacate the termination order because his court-appointed counsel was ineffective. We assume, without deciding, the law permits relief for ineffective assistance of counsel in termination proceedings and review Father s claim under the standard of Strickland v. Washington, 4 Son currently lives in a stable home with Mother and his stepfather, who wants to adopt Son, and Son wants to take his stepfather s last name. Courts have found the immediate availability of an adoptive home or existing placement meeting the child s needs may support a best interests finding. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. Further, Son and Father do not share a bond due to the length of Father s absence, and Son has not asked about Father since November 2005. 6 466 U.S. 668 argument, (1984). requesting Therefore, we adopt we a reject Father s different initial standard: that ineffective assistance of counsel occurs when a parent has been denied an adequate manner as the Arizona opportunity result Department of of to be counsel s Economic heard in conduct. Security, a In this meaningful John court that standard in favor of the Strickland standard. 320, 325, ¶ 18, 173 P.3d 1021, 1026 (App. 2007). M. v. rejected 217 Ariz. We agree with the court in John M. and apply the Strickland standard. ¶12 To prevail on his claim of ineffective assistance of counsel, Father must show both: (1) counsel s actions were professionally unreasonable and (2) such actions prejudiced him. Strickland, 466 U.S. at 688, 691-92. juvenile court s [Father] can sufficient termination demonstrate to undermine that order We will not reverse the unless, counsel s confidence in at alleged the a minimum, errors outcome of were the severance proceeding and give rise to a reasonable probability that, but for different. counsel s errors, the result would have been John M., 217 Ariz. at 325, ¶ 18, 173 P.3d at 1026 (citation omitted). ¶13 We reject Father s ineffective assistance of counsel claim as not colorable. Father fails to specify how calling Nancy Friends to testify would have amplified the conclusions in her report. Moreover, even assuming additional family members 7 could testify about Father s lack of intent to abandon Son and his belief regarding child support, Father fails to specify in detail precisely what they would have said. Father intended above. to Finally, abandon Father Son is suggests Further, whether irrelevant, he would as discussed have provided additional explanation as to why he did not maintain contact with Son, his statement to Mother s mother that he would win Son s love when Son grows participate in CPR classes. up, and his unwillingness to He had an adequate opportunity at trial, however, to provide these explanations 5 and, again, he fails to identify how these additional explanations (which he does not detail) would have changed the result. Thus, we fail to see how any of Father s attorney s actions prejudiced him. See id. In the absence of prejudice, Father has failed to establish his ineffective assistance of counsel claim. 5 In response to questions about why he did not continue his attempts to see Son, Father only replied he believed Mother conditioned contact on the payment of child support -- testimony the juvenile court rejected. 8 CONCLUSION ¶14 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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