Brian M v. ADES/Sean D

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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 DIVISION ONE FILED: 01/19/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BRIAN M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, and SEAN D., Appellees. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-JV 11-0140 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD507774 The Honorable Peter A. Thompson, Judge AFFIRMED Robert D. Rosanelli, Attorney at Law By Robert D. Rosanelli Attorney for Appellant Phoenix Thomas C. Horne, Attorney General By Amanda Holguin, Assistant Attorney General Attorneys for Appellees Phoenix T I M M E R, Judge ¶1 Brian M. ( Father ) appeals the juvenile court s order terminating his parental rights to Sean D. Father argues the court erred because the evidence did not support its finding of abandonment under Arizona Revised Statutes ( A.R.S. ) section 8533(B)(1) (Supp. 2010). ¶2 From Protective We disagree and therefore affirm. September Services 2008 ( CPS ) through received March several 2009, Child complaints that Father had physically abused and neglected then-eight-year-old Sean. According to reports, Sean had unexplained bruising, and Father and his live-in girlfriend were using methamphetamine and had engaged couple s in domestic infant son. violence The in Arizona front of Sean Department and of the Economic Security ( ADES ) offered the family services, but incidents of drug use and domestic violence continued. ¶3 In early April 2009, Sean reported that Father became angry that Sean had communicated with CPS, called him a derogatory name, and sent him to live with Father s parents. A few days later, ADES took custody of Sean and placed him with his maternal grandparents, where he has remained. When Sean expressed fear of Father, ADES disallowed supervised visitation; the ADES family reunification plan, however, presented Father a pathway toward participation joint in therapeutic Approximately two visitation individual visits, years contingent sessions and finally later, after with on Sean s supervised Father had progressive therapist, visitation. failed to progress to joint therapy with Sean, ADES filed a petition for 2 termination of Father s parental rights on the ground of abandonment. ¶4 The court held a contested severance hearing on June 9, 2011, and then terminated Father s parental rights to Sean, finding that Father had abandoned Sean and that severance would be in Sean s best interests. Father timely appealed. DISCUSSION ¶5 The relationship evidence severance juvenile only upon demonstrates and that a court may terminate finding at that least one preponderance the clear and statutory of the severance is in the child s best interests. parent-child convincing ground evidence for shows A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We will accept the juvenile court s findings unless those findings are clearly erroneous, Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 190, ¶ 25, 971 P.2d 1046, 1051 (App. 1999), and we will affirm a severance order if reasonable evidence supports the court s factual findings. Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). Further, we view the evidence in the light most favorable to affirming the judgment. Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). 3 ¶6 is Pursuant to A.R.S. § 8-533(B)(1), the juvenile court authorized to terminate a parent s rights [t]hat the parent has abandoned the child. upon a finding Under A.R.S. § 8- 531(1) (2007), abandonment is 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. Abandonment is measured objectively by examining the parent s conduct, not the parent s subjective intent. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (2000); see Anonymous v. Anonymous, 25 Ariz. App. 10, 12, 540 P.2d 741, 743 (1975). The key consideration for the court when deciding whether a parent has abandoned a child is whether that parent, under the unique circumstances of the case, 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, 20, 995 P.2d at 685-86; A.R.S. § 8-531(1). ¶7 best Father does not dispute that severance is in Sean s interests. Rather, Father 4 argues the court improperly terminated his parental rights because insufficient supports the finding that he abandoned Sean. contends he did not abandon Sean evidence Specifically, he because, despite ADES interruption of Father s relationship with Sean by removing him from Father s care and denying visitation, Father maintained sufficient contact via telephone, e-mail, and an online social network. We disagree. ¶8 First, as the juvenile court recognized, although ADES initially prevented Father from visiting Sean because of Sean s fear, ADES provided Father with a pathway for resuming in-person contact and achieving reunification, but he failed to take it. Father admitted he knew the progressive steps necessary to resume in-person contact with Sean: individual therapy, joint therapeutic visits, then supervised visitation. Father attended some sessions with Sean s therapist from August until November 2009, when Sean began to see a new counselor. Despite consistent written reminders from the ADES case worker, Father failed to attend any sessions after that time. Father does not explain his failure to contact Sean s second therapist, and his claim that he was play[ing] phone tag does not adequately explain his failure to attend any appointment with Sean s third and current counselor over the course of the next year. As the court found, [s]ome initial delay can be attributed to a change in counselor . . . . [but] that single setback does not account 5 for the continued failure to act despite numerous written and verbal reminders and encouragements to do so. ¶9 [W]hen circumstances prevent the . . . father from exercising traditional methods of bonding with his child, he must act persistently possible . . . . something, to establish the relationship however The message to a parent remains . . . do because subjective intent. conduct speaks louder than words or Michael J., 196 Ariz. at 250, ¶ 22, 995 P.2d at 686 (first alteration in original) (citation omitted). Father failed to do something to reestablish in-person contact with Sean and, as a result, Father never progressed to joint therapeutic sessions with Sean. Thus, Father never resumed normal, in-person contact with Sean, seeing him only once, by happenstance, since mid-2009. Given this evidence, the court did not err by finding Father bore fault for failing to maintain regular contact with Sean and foster a normal parent-child relationship. ¶10 Second, the evidence supports the juvenile court s finding that Father s telephonic and electronic communications with Sean were too sporadic and the gaps between them too great to qualify as regular contact, constituting a minimal effort at best. See A.R.S. § 8-531(1) (defining abandonment as failure . . . to maintain regular contact and includes a judicial finding that a parent has made only minimal efforts to support 6 and communicate with the child ). For instance, Father never contacted Sean over the eight months between December 25, 2009 and September 3, 2010. He again failed to contact Sean over the six months from December 2010 to June 2011. He sent Sean one e- card during the two years leading to termination of his parental rights but gave Sean no other cards or presents. Even considering Father s assertion that he communicated with Sean through Facebook messaging a couple times . . . every month, or every other month, the court did not err by concluding Father s occasional instant messages were only minimal efforts consistent with abandonment. See A.R.S. § 8-533(1); Michael J., 196 Ariz. at 249-51, ¶¶ 18, 22, 25, 995 P.2d at 685-87. ¶11 finding supports Given this record, the juvenile court did not err in that the Father juvenile abandoned court s Sean. ruling Reasonable that severance warranted under A.R.S. § 8-533(B)(1). CONCLUSION ¶12 For the foregoing reasons, we affirm. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Maurice Portley, Presiding Judge /s/ Andrew W. Gould, Judge 7 evidence was

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