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
JOSEPH R.,
)
)
Appellant, )
)
v.
)
)
)
Lynn H., ANTHONY R.,
)
)
Appellees. )
)
__________________________________)
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
1 CA-JV 11-0004
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 103(G) Ariz.R.P.
Juv. Ct.; Rule 28
ARCAP)
Appeal from the Superior Court in Yavapai County
Cause No. P1300SV201000004
The Honorable Robert M. Brutinel, Judge
AFFIRMED
Law Office of Timothy V. Nelson
By
Timothy V. Nelson
Attorneys for Appellant Joseph R.
Chandler
Law Office of Patricia O’Connor
By
Patricia A. O’Connor
Attorneys for Appellee Lynn H.
Chino Valley
O R O Z C O, Judge
¶1
Joseph
R.
(Father)
appeals
the
juvenile
court’s
termination of his parental rights to Anthony R. (Child) based on
abandonment and disputes the court’s finding that termination is
in Child’s best interests.
FACTS AND PROCEDURAL HISTORY
¶2
Child was born in October 1999 to Father and Maggie R.
(Mother).
Mother reported that Father had “been unemployed for
sometime” and while serving in the military, Father sustained an
injury, which caused him to start taking pain medications.
In
December 2009, Father and Mother had a disagreement which became
physical.
After
this
argument,
Mother
and
Child
left
the
family’s home in Pennsylvania and drove to Arizona to stay with
her mother (Grandmother).
¶3
In January 2010, Mother sent Father an email stating
that she wanted Grandmother to adopt Child.
Father indicated
that he did not agree with Grandmother adopting Child.
Father
was permitted telephone access to Child until March 2010 at which
time
Grandmother
changed
her
telephone
number
because
of
threatening messages left on her answering machine by Father.
Father wrote “about five letters” to Child and sent a birthday
card, but not until after severance proceedings were initiated.
¶4
In
April
2010,
Grandmother
filed
this
action.
Grandmother alleged that Father neglected and willfully abused
Child and was unable to care for Child because of his dependence
on prescription medication.
At the time of trial, Father had not
sent any support for Child.
During Father’s court ordered social
2
history interview he stated that he was currently unemployed, but
received $100 per month from the Army Reserves.
¶5
The court held an initial severance hearing in August
2010 and Father appeared telephonically.
At this hearing the
court told Father he must appear at the trial and advised him
that
his
failure
to
appear
at
trial
could
result
in
the
termination of his parental rights.
¶6
The court sent the parties to mediation in September
2010.
as
During mediation, Father agreed to have contact with Child
recommended
occurred
after
by
the
the
therapist.
mediation,
Only
and
one
based
on
telephone
the
call
therapist’s
recommendation there were no other telephone calls between Father
and Child.
The court set trial for November 2010.
Father did
not appear personally or telephonically at the trial and the
court decided to go forward with the trial.
¶7
At trial, Grandmother indicated that she had filed a
motion to amend the original petition to terminate to include the
ground
of
abandonment.
The
court
granted
the
motion.
Grandmother and Mother testified at trial and the court admitted
exhibits which included a home study, a letter from Father, and
Mother’s consent for Grandmother to adopt Child.
¶8
The court found that Father had abandoned Child and
that severance was in Child’s best interest.
The court ordered
the termination of the parental relationship between Father and
3
Mother
with
Child
and
placed
Child
in
the
legal
custody
of
Grandmother pending a petition for adoption.1
¶9
Father timely appealed.
We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (A.R.S.) section 12-120.21.A.1 (2003).
DISCUSSION
¶10
Father
terminating
argues
Father’s
on
appeal
parental
that
rights
the
to
court
erred
Child
based
in
on
abandonment and in finding that termination of Father’s parental
rights was in the best interest of Child.
proceeding,
we
accept
the
juvenile
findings are clearly erroneous.
court’s
In a termination
ruling
unless
Maricopa Cnty. Juv. Action No.
JS-4374, 137 Ariz. 19, 21, 667 P.2d 1345, 1347 (App. 1983).
will
uphold
these
findings
supported by the evidence.
the
on
appeal
unless
they
are
We
not
Maricopa Cnty. Juv. Action No. A-
25525, 136 Ariz. 528, 533, 667 P.2d 228, 233 (App. 1983).
In
granting a termination order, the order must be supported by
clear and convincing evidence that establishes at least one of
the statutory grounds in A.R.S. § 8-533 (Supp. 2010).
Michael J.
v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d
682, 685 (2000).
The court must also find by a preponderance of
the evidence that termination is in the best of the child.
1
Kent
Mother has not appealed the termination of her parental
rights.
4
K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018
(2005).
Abandonment
¶11
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.
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 (2007).
parent's
subjective
“[A]bandonment is measured not by a
intent,
but
by
the
parent's
conduct:
the
statute asks whether a parent has provided reasonable support,
maintained regular contact, made more than minimal efforts to
support and communicate with the child, and maintained a normal
parental relationship.” Michael J., 196 Ariz. at 249-50, ¶ 18,
995 P.2d at 685-86.
for
the
initial
In this case, Father appeared telephonically
severance
jurisdiction of the court.
hearing
and
submitted
to
the
When Father failed to appear for
trial, after being warning and acknowledgment of the warning, the
court properly struck Father’s denial, pursuant to Arizona Rule
of Procedure for the Juvenile Court 66.D.2.
¶12
In addition, the evidence presented before the court
indicated that Father: had not sent any support for Child, had
5
anger issues, and “never had a normal parent relationship” with
Child.
At trial there was also evidence that Father had sent
“about five” letters to Child after the severance proceedings
were initiated.
Father also failed to seek advice on how to
obtain visitation with his son and his “attitude and concern
about [Child] appear[ed] lax at best.”
We find the court did not
err in finding that Father abandoned Child.
Best Interests of Child
¶13
court
When
must
a
find
court
by
terminates
a
one’s
preponderance
parental
of
the
termination is in the child’s best interest.
rights,
evidence
the
that
See A.R.S. § 8-
533.B; Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018.
“[A]
determination of the child’s best interest must include a finding
as to how the child would benefit from a severance or be harmed
by the continuation of the relationship.”
Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990).
For example, evidence that there is an adoptive plan in place is
sufficient to support a finding that the child would benefit from
severance in the case of abandonment, such that severance would
be in the child’s best interest.
Id. at 6, 804 P.2d at 735; see
also James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶
18, 972 P.2d 684, 689 (App. 1998).
¶14
At trial, the family court heard evidence that Child
had lived with Grandmother since December 2009, and that she was
6
able to meet Child’s social, academic, emotional and financial
needs.
Grandmother testified that she planned to adopt Child.
The court also heard evidence that Grandmother had placed Child
in counseling to assist in his development.
court
did
not
err
in
finding
that
Thus, we find the
termination
of
Father’s
parental rights was in the best interest of Child.
CONCLUSION
¶15
For the above mentioned reasons, we affirm the court’s
termination of the parent child relationship between Father and
Child.
/S/
___________________________________
PATRICIA A. OROZCO, Presiding Judge
CONCURRING:
/S/
____________________________________
DONN KESSLER, Judge
/S/
____________________________________
MICHAEL J. BROWN, Judge
7
