PEDRO G. v. ADES, 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); IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE PEDRO G. ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC, ) SECURITY, A.R., A.R., ) ) Appellees. ) __________________________________) DIVISION ONE FILED: 10/10/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-JV 13-0161 Department S MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JS12259 The Honorable Jay R. Adelman, Judge REVERSED AND REMANDED Denise L. Carroll Attorney for Appellant Scottsdale Thomas C. Horne, Arizona Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellees J O H N S E N, Chief Judge ¶1 Pedro G. ( Father ) appeals the superior court s order terminating his parental rights to his two children. the confession of error by the petitioner, the We accept Arizona Department of Economic Security ( ADES ), and reverse the order of termination. ¶2 person Father is incarcerated and last saw his children in two years ago. While in prison, however, he has maintained regular contact with his children, calling them once or twice a week and sending them letters, cards and artwork. The superior court terminated his parental rights on the ground of abandonment, pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1) (2013). 1 The statute defines abandonment to mean 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. A.R.S. § 8-531(1) (2013). ¶3 Our supreme measured not by a parent s conduct. court has parent s held subjective that abandonment intent, acknowledging supervised and by the Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). error, but is the regularly record contacted demonstrates the ADES confesses that children, Father and that although he did not financially support the children while in 1 Absent material revision after the relevant date, we cite a statute s current version. 2 prison, the abandonment ground cannot stand alone on that fact. See Pima County Severance Action No. S-1607, 147 Ariz. 237, 239, 709 P.2d 871, 873 (1985). ¶4 We agree the record does not contain evidence sufficient to support a finding by clear and convincing evidence that Father 533(B)(1). abandoned his children pursuant to A.R.S. § 8- See Michael J., 196 Ariz. at 249, 995 P.2d at 685 (clear and convincing evidence required to support termination of parental rights). ¶5 Accordingly, we reverse the superior court s order. 2 ______________/S/_______________ DIANE M. JOHNSEN, CHIEF JUDGE CONCURRING: ______________/S/_______________ MARGARET H. DOWNIE, JUDGE ______________/S/_______________ KENT E. CATTANI, JUDGE 2 We need not address Father s arguments on appeal that he was deprived of due process when trial went forward in his absence and that termination of his rights is not in the children s best interests. 3
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