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
REBECCA S.,
Appellant,
v.
AMBER S., KYLE R., VICTORIA
P.,
Appellees.
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1 CA-JV 11-0092
DIVISION ONE
FILED: 10/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication –
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Navajo County
Cause No. S0900SV201000028/S0900GC201000077
The Honorable Michala M. Ruechel, Judge
AFFIRMED
Law Office of Michelle L. Ratner
by
Michelle L. Ratner
Attorney for Appellant
Flagstaff
Riggs, Ellsworth & Porter, P.L.C.
Show Low
by
Michael R. Ellsworth
Attorney for Appellees
________________________________________________________________
B A R K E R, Judge
¶1
Appellant, Rebecca S. (“Mother”), appeals the superior
court’s order terminating her parental rights to her daughter,
Victoria,
Statutes
on
grounds
(“A.R.S.”)
of
abandonment
section
under
8-533(B)(1)
Arizona
(2010).
Revised
For
the
following reasons, we affirm.
Facts and Procedural Background
¶2
Mother gave birth to Victoria in October 2007.
time,
Mother
was
living
in
Utah
with
Victoria,
At the
Victoria’s
father, and T.S., another of Mother’s children.
Soon after the
birth
litigation
of
Victoria,
Mother’s
ex-husband
began
obtain full-custody of his three children with Mother. 1
to
Mother
sent Victoria to stay with her parents in Arizona because she
could not prepare for the litigation involving her ex-husband
while caring for the newborn.
Victoria eventually came back to
live with Mother in Utah.
¶3
In
arrested
and
the
Spring
being
of
2008,
investigated
when
and
Victoria’s
charged
for
father
child
was
abuse
allegations, Mother again sent Victoria, along with T.S., to
live with her family in Arizona.
Mother sent the children away
because she did not want them to be in the environment created
by the arrest and investigation.
1
Victoria lived with Mother’s
Mother’s ex-husband is the father of three children
for whom he is fighting for custody in a separate case. He is
not Victoria’s father.
2
sister and brother-in-law (“Appellees”) in Arizona until July
2008.
¶4
In
July,
Mother
enlisted
the
police
Victoria and T.S. from Appellees in Arizona. 2
police
with
her
because
she
was
to
retrieve
Mother brought the
apprehensive
about
the
Appellees would react; she wanted “[t]o keep the peace.”
way
Mother
first went to her mother’s house, and when she did not find the
children there, she took the police to Appellees’ house.
After
the incident in July, Victoria and T.S. stayed with Mother in
Utah until November or December of 2008. However, because Mother
was working during Christmas and had to place Victoria in fulltime day care, she decided to send the girls back to her parents
in Arizona for Christmas.
¶5
she
After Mother completed her schooling in January 2009,
moved
daughters.
to
Kingman
to
be
closer
to
her
family
and
her
However, Mother was unable to find work, so she
moved back to Utah and did not take the children with her.
In
early 2009, Mother was pregnant and sick during the course of
her
pregnancy,
and
she
September
2009.
Feeling
Victoria,
Mother
continued
underwent
that
to
she
leave
2
a
was
Caesarean
unable
Victoria
in
section
to
the
care
care
in
for
of
At the trial, Mother testified that she believed she
was sending her children to live with her parents. However, it
was apparent that the children spent the majority of their time
living with Appellees.
3
Appellees in Arizona where Victoria has lived from December 2008
to the present.
¶6
Between
December
2008
limited contact with Victoria.
and
June
2010,
Mother
had
During this time Mother called
her mother to ask about Victoria, but she did not communicate
with Victoria directly while Victoria was in Arizona.
sent
clothing
instances,
support.
and
but
other
she
did
items
not
send
the
Victoria
regular
on
cards
isolated
or
monetary
In November 2010, Mother had a visit with Victoria.
The visit did not go well.
and
for
Mother
two
were
unable
Victoria did not recognize Mother
to
bond.
Mother
missed
two
scheduled visits with Victoria in January and February.
other
As to
the visitation scheduled in January, Mother was unable to attend
due to illness.
Weather delays during her travel from Utah to
Arizona prevented her from attending the visitation scheduled in
February.
¶7
In
November
2009,
Mother
signed
a
consent
to
guardianship to allow Appellees to obtain medical care and other
care for Victoria.
Appellees did not file the consent or seek
guardianship of Victoria for about eight months.
On July 30,
2010, Appellees filed a petition for temporary appointment as
guardians
for
Victoria.
The
petition
requested
emergency
appointment without notice, citing Appellees’ fear that Victoria
would
be
taken
by
her
father’s
4
family.
The
court
granted
emergency guardianship to Appellees without restrictions and set
a hearing for August 24, 2010.
¶8
Prior to the hearing on August 24, Mother filed an
objection to the petition for guardianship; she stated that her
family
had
guardianship
misled
in
her
November
when
she
2009.
signed
At
the
the
consent
hearing,
the
to
court
appointed a Guardian Ad Litem for Victoria and set a further
hearing on the Guardianship for September.
Appellees
filed
a
Petition
for
In September 2010,
Termination
of
Parent
Child
Relationship, and the court combined the termination matter with
the guardianship matter.
At the combined hearing on November 9,
2010,
leave
Mother
agreed
Victoria in place.
to
the
temporary
guardianship
of
Mother was not represented at the hearing,
but she advised the court she understood her rights and had not
been forced, threatened, or coerced into the agreement. 3
The
Guardian Ad Litem agreed that the temporary agreement was in
Victoria’s best interests.
¶9
In
December
custody of Victoria.
2010,
Mother
filed
a
motion
to
regain
On January 6, 2011, the court held a
hearing, heard argument, and denied the motion finding that the
guardianship
3
was
in
Mother was
severance matter.
Victoria’s
best
subsequently
5
interests.
appointed
A
counsel
severance
in
the
trial was set for March 3, 2011.
The parties waived a social
study.
¶10
After the two-day trial, the court granted Appellees’
petition
to
sever
and
petition
for
guardianship.
The
court
found by clear and convincing evidence that Mother had abandoned
Victoria pursuant to A.R.S. §§ 8-533, -531.
found
that
Mother
failed
to
maintain
a
The court further
normal
parent-child
relationship for a period of eighteen months without good cause,
had
de
minimus
contact
with
support and communication.
Victoria,
and
provided
minimal
The court found by a preponderance
of the evidence that severance of the parent-child relationship
was in the best interests of Victoria.
Mother timely appealed,
and we have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution and A.R.S. § 8-235(A) (2007).
Discussion
¶11
On appeal, we do not reweigh the evidence nor make
credibility
determinations;
instead,
we
examine
the
record
merely to determine whether there is sufficient evidence of the
grounds for termination.
Jesus M. v. Ariz. Dep’t. of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002)
(“The juvenile court, as the trier of fact in a termination
proceeding,
is
in
the
best
position
to
weigh
the
evidence,
observe the parties, judge the credibility of witnesses, and
make appropriate findings.”).
We will affirm a juvenile court’s
6
decision unless, as a matter of law, no reasonable fact-finder
could have found the evidence supported the statutory grounds
for termination or there are errors of law.
Denise R. v. Ariz.
Dep’t. of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d, 1263,
1266 (App. 2009).
¶12
Mother argues that (1) the procedure for finding the
legal concept of abandonment as defined by A.R.S. § 8-531 is
unconstitutional,
(2)
the
court
abused
its
discretion
by
allowing Appellees to sabotage return of the child to Mother,
(3) the court’s findings were unsupported by the evidence, and
(4) the court did not consider important issues when considering
best interests.
1. Constitutionality of Abandonment Statute
¶13
Mother challenges the constitutionality of the court’s
termination
abandonment.
of
the
parent-child
relationship
on
grounds
of
She argues that under Troxel v. Granville, 530
U.S. 57 (2000), the court failed to give special consideration
to her determination that leaving Victoria with Appellees was in
the child’s best interests.
The Fourteenth Amendment protects
the “fundamental right of parents to make decisions concerning
the care, custody, and control of their children.”
U.S. at 65.
Troxel, 530
The procedures for termination of the parent-child
relationship on the grounds of abandonment pursuant to A.R.S. §§
8-531, -533 respect these fundamental rights.
7
See Kent K. v.
Bobby M., 210 Ariz. 279, 282, ¶ 11, 110 P.3d 1013, 1016 (2005)
(Fundamental
rights
involved
in
severance
cases
“can
be
overridden only by the combined elements of statutorily defined
improper
behavior
interests.”).
of
a
the
parent
and
the
child’s
best
The statute defines abandonment as “the failure
parent
regular
by
to
contact
provide
with
the
reasonable
child.”
support
A.R.S.
and
§
to
maintain
8-531(1).
The
statute contemplates that circumstances may arise when a parent
would
decide
it
is
best
for
the
child
to
be
placed
in
the
custody of another person; thus, it provides that “[f]ailure 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. (emphasis added).
has been held to be constitutional.
This statute
See Michael J. v. Ariz.
Dep’t. of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12, 995 P.2d
682, 684-85 (2000) (recognizing that the fundamental right to
parent
can
be
terminated
if
the
court
finds,
by
clear
and
convincing evidence, one of the statutory grounds set out in §
8-533
and
that
the
termination
is
in
the
child’s
best
interests).
¶14
statute
The facts here do not support a determination that the
is
unconstitutional
as
applied,
section on sufficiency of the evidence.
as
discussed
in
the
The facts supporting
abandonment were not that Mother permitted a guardianship, but
8
that
she
failed
to
have
any
kind
of
reasonable
contact
or
relationship with Victoria during the time Victoria was with
Appellees.
A
parent
must
exercise
the
right in order for it to be protected.
fundamental
parental
See Troxel, 530 U.S. at
68 (stating that the State will not interfere with the “private
realm of the family” “so long as a parent adequately cares for
his or her children”).
Thus, we find no error.
2. Court’s Exclusion of T.S.’s Letter
¶15
Mother
discretion
in
next
contends
allowing
Victoria to Mother.
that
Appellees
the
to
court
sabotage
abused
the
its
return
of
Mother develops this argument as a claim
that the court erred in excluding from evidence a letter written
by T.S..
will
not
Unless the juvenile court abused its discretion, we
disturb
evidence.
the
court’s
ruling
on
the
admissibility
of
In re Jonah T., 196 Ariz. 204, 208, ¶ 15, 994 P.2d
1019, 1023 (App. 1999).
¶16
To
interests,
show
that
Mother
severance
introduced
was
not
evidence
in
that
Victoria’s
two
of
best
Mother’s
brothers, who were living either with Mother’s mother or in the
area, were being charged or investigated for child molestation.
To
further
support
this
argument,
Mother
sought
to
admit
a
letter written by T.S. containing a description of events she
experienced
mother.
while
The
court
living
with
determined
Appellees
that
9
there
and
with
was
not
Mother’s
sufficient
indicia
of
reliability
admit the letter.
under
the
circumstances,
and
did
not
T.S. had written the letter “a couple of
weeks” before the trial.
Mother testified that T.S. “wanted to
write a letter to the courts, because she knew [Mother] was
fighting
for
Victoria.”
When
T.S.
testified
telephonically
during the trial, Mother had the opportunity to elicit the same
evidence that was contained in the letter.
We conclude that the
court did not abuse its discretion in excluding the letter.
3. Sufficiency of the Evidence
¶17
Mother next argues that the court’s findings were not
supported
by
the
evidence.
Mother
does
not
contest
that
Victoria has resided with Appellees from December 2008 to the
present
period
or
that
consisted
Mother’s
contact
of
three
only
with
Victoria
visitation
during
days.
that
Instead,
Mother’s argument focuses on the court’s failure to consider the
intentions behind her actions.
This argument necessarily fails
because:
[A]bandonment is measured not by a parent’s
subjective 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.,
(expressly
196
noting
Ariz.
that
at
the
249-50,
¶
“decision
10
18,
to
995
P.2d
consider
at
a
685-86
parent’s
conduct rather than his subjective intent fully accorded with
the legislature’s decision to delete the intent language from
the definition of abandonment”).
The court properly focused on
Mother’s conduct.
¶18
Furthermore,
findings:
Mother
the
did
evidence
not
maintain
supports
regular
the
court’s
contact,
provide
reasonable support, or provide normal supervision for more than
six months.
For a period of eighteen months, Victoria resided
in Arizona with Appellees.
During that time, Mother called her
mother weekly for updates on Victoria, but she did not call
Appellees
While
or
life
make
any
effort
events
may
have
to
have
contact
prevented
with
Mother
from
Victoria.
physically
caring for her daughter for a time, these were not just cause
for her failure to maintain a parent-child relationship.
See
Appeal in Pima County Juv. Severance Action No. S-114487, 179
Ariz. 86, 101, 876 P.2d 1121, 1136 (1994) (legitimate reasons
for
failure
to
act
may
required good cause).
such
as
shoes,
still
rise
to
the
statutorily
Mother sent a few items for Victoria,
clothes,
etc.
four
was
times”
living
Mother sent fifty dollars for care and maintenance
February
support,
regular
case
case.”
to
2011.
contact,
Id.
at
and
Victoria
least
Appellees.
in
which
at
the
once
in
“probably
throughout
only
period
not
“What
normal
96-97,
11
876
constitutes
supervision
P.2d
at
with
reasonable
varies
1131-32
from
(When
“circumstances prevent [the parent] from exercising traditional
methods of bonding . . . [the parent] must act persistently to
establish the relationship however possible and must vigorously
assert his [or her] legal rights.”).
Though we trust Mother
meant well, there was sufficient evidence to support the legal
standard for abandonment.
4. Best Interests
¶19
Lastly, Mother argues that the court did not consider
important issues when it determined whether severance was in the
best
interests
of
Victoria.
The
court
must
find
by
a
preponderance of the evidence that severing the parental rights
is in the best interests of the child.
288, ¶ 42, 110 P.3d at 1022.
Kent K., 210 Ariz. at
To make this determination, the
court must “include a finding as to how the child would benefit
from
a
severance
relationship.”
or
be
harmed
by
the
continuation
of
the
Mary Lou C. v. Ariz. Dep’t. of Econ. Sec., 207
Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (quoting Maricopa
County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730,
734 (1990)).
The court made specific best-interest findings as
to
severance
how
the
permanency.
would
provide
needed
stability
and
The court found that Victoria was tightly bonded
with Appellees, they were the only parents she knew, and she had
resided
findings.
with
them
since
2008.
The
record
supports
these
Victoria is extremely comfortable with Appellees; she
12
is affectionate with them and views them as her parents.
There
was no error on these grounds.
Conclusion
¶20
Finding sufficient evidence to support the termination
of Mother’s parental rights, we affirm.
/s/
____________________________
DANIEL A. BARKER, Judge
CONCURRING:
/s/
____________________________________
ANN A.SCOTT TIMMER, Presiding Judge
/s/
____________________________________
PATRICK IRVINE, Judge
13
