Robert R., Margaret R., v. Edward C.
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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 R., MARGARET R., ) ) Appellants, ) ) v. ) ) EDWARD C., ) ) Appellee. ) ) __________________________________) DIVISION ONE FILED: 08-10-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-JV 10-0065 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Yuma County Cause No. J-09-023 The Honorable Kathryn E. Stocking-Tate, Judge AFFIRMED Mary Katherine Boyte, P.C. Attorney for Appellant Yuma Law Office of Jerrold F. Shelley, P.C. By Jerrold F. Shelley Attorneys for Appellee Yuma D O W N I E, Judge ¶1 Robert R. and Margaret R. ( appellants ) appeal from the denial of their petition to terminate the parental rights of Edward C. ( father ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 Father and R.M., who were both on probation and registered sex offenders, met at a twelve-step meeting and were later members of the same sex offender treatment group. 2 secretly maintained an intimate relationship for four R.M. became pregnant and went to prison in 2004. They years. She asked appellants--her brother and sister-in-law--to become her unborn child s guardians. ¶3 Father, who was also incarcerated prior to the child s birth, initially would not consent to the guardianship. After appellants explained that they wanted a temporary guardianship so CPS rights would were not being become involved, taken away was father s eased, concern and cautious signature consenting to the guardianship. was born September 10, 2004. father, but R.M. named the his gave he that his The child The birth certificate listed no boy after father as a junior. 1 We view the facts in the light most favorable to affirming the juvenile court s findings. Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). 2 R.M. is not a party to this appeal; we include references to her only as necessary to develop the relevant issues. 2 Appellants took physical custody of the child three days after his birth. ¶4 While incarcerated, father poems to the child and appellants. sent letters, cards, and Appellants never responded. In one letter, father asked appellants to allow the child to visit him in prison. Father, however, never completed necessary paperwork to add the child to his visitor list. During father s prison term, the child occasionally saw his paternal relatives. ¶5 Father was released from prison in June 2006. terms of probation appellants. prohibited contact with his son His or Father participated in sex offender treatment; his primary concern in individual sessions was reunification with his son. Father s mother and brother attended some of the treatment sessions and discussed how the family might reach out to appellants to facilitate the child s involvement with his paternal extended family. ¶6 contacted At some point after his release from prison, father legal aid about pursuing visitation rights ensuring that his name was on the birth certificate. and In 2007, father received a copy of the birth certificate from R.M. and saw that he was not listed. Father signed an acknowledgment to add his name and returned it to R.M, believing she would take care of it. 3 ¶7 In January treatment. 2008, father completed sex offender In February, his probation was terminated, and the prohibition against contact with the child was lifted. In the summer of 2008, father contacted appellants and asked to see his son. Father s father had brother completed also wrote probation impediment to visitation. to and appellants, that there explaining was no legal In October, father called appellants, asking to reestablish ties with his son. Appellants said they would consider father s request and get back with him, but they did not times. do so. Father called appellants approximately In December 2008, Father threatened legal action. ¶8 The next month, appellants filed a petition terminate father s parental rights based on abandonment. responded parentis in opposition. custody and Appellants sought an also order of filed for in temporary 2009 hearing, the did not court awarded object and appellants dismissed to Father loco custody. Father objected and filed a cross-motion for custody. March ten At a temporary custody. Father his cross- petition. 3 In April, Father requested pendente lite parenting time, which appellants opposed. ¶9 The January 2010. court conducted a two-day severance trial in In a written ruling filed February 19, 2010, the 3 Father also advised the court he had filed a separate paternity action. An order of paternity was issued on June 1, 2009, naming father the natural and biological father. 4 court denied appealed. We the severance have petition. jurisdiction Appellants pursuant to Arizona timely Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION 1. Statutory Grounds for Severance ¶10 The right to custody of one s children is fundamental, but not absolute. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). Termination of parental rights is a serious matter and courts should bend over backwards, if possible, to maintain the natural ties of birth. Anonymous v. Anonymous, 25 Ariz. App. 10, 11, 540 P.2d 741, 742 (1975). To justify severance, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and termination is in the best interest of the child. also that Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685 (citing A.R.S. § 8533(B)). Clear and convincing evidence is proof that will produce in the mind of the trier of facts a firm belief or conviction as to the issue sought to be proved. Canez, 202 Ariz. 133, 156, ¶ 76, 42 P.3d 564, State v. 587 (2002) (quoting State v. Turrentine, 152 Ariz. 61, 68, 730 P.2d 238, 245 (App. 1986)). ¶11 Appellants alleged only terminating Father s parental rights: 5 one statutory abandonment. basis for Our review is thus confined to the juvenile court s determination that appellants failed to prove abandonment by clear and convincing evidence. This appeal neither involves nor disturbs the existing order of the superior court granting in loco parentis custody of the child to appellants. opinion about the nature and degree Similarly, we express no of contact that Father should be allowed to have with the child, if any. ¶12 Abandonment is defined as: [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. A.R.S. § 8-531(1) (2007). regular contact, and What constitutes reasonable support, normal supervision varies from case to case, and abandonment is a question of fact to be resolved by the juvenile court. P.2d at 686. Michael J., 196 Ariz. at 250, ¶ 20, 995 We view the evidence in the light most favorable to affirming that court s findings, see id., recognizing that, as the trier of fact in a termination proceeding, a juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 6 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App. 2004) (citation and quotation omitted). ¶13 Imprisonment, in and of itself, severance on the basis of abandonment. 250, ¶ 22, 995 P.2d at 686. not a defense failure to and make more not warrant Michael J., 196 Ariz. at On the other hand, incarceration is does than communicate with a child. prevent the does not minimal justify efforts Id. at ¶ 21. a to parent s support and When circumstances . . . father from exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary. Id. at ¶ 22 (citation omitted). ¶14 Appellants claim that the juvenile court erroneously focused on father s subjective intentions rather than his actual behaviors. See, e.g., id. at 249, ¶ 18, 995 P.2d at 685 (abandonment is not measured by a parent s subjective intent, but by support a parent s this conduct). claim. The Indeed, record, the however, juvenile court does not expressly recognized that [t]he message sent to parents from the Court is: do something, because conduct speaks louder than words or subjective intent. ¶15 applied In the its lengthy applicable written legal ruling, standards 7 to the the juvenile facts court that it found from the often conflicting and vague evidence presented, stating, in pertinent part: Prior to February 2008, [father s] incarceration and the terms of his probation prohibited him from having contact with [appellants] and [the child]. . . . While incarcerated, [father] wrote poems for [the child] and sent them to [appellants] in an attempt to keep in contact. After his release from prison and termination of probation, [father] made several attempts to contact [appellants] to no avail. [Father] also sought advice from Dr. [H.] about how to best initiate contact with [the child] that would be as least disruptive to [the child], and presumably, the [appellants]. . . . [Father] has made a sincere effort to initiate a parental relationship with his son, while attempting to mitigate the confusion to [the child] and disruption of [appellants ] household. 4 ¶16 Father admittedly could have taken additional steps to vigorously assert his legal rights, including registering with the putative father registry, see A.R.S. § 8-106.01(A), (B) (2007), filing a prompt paternity action, seeking legal counsel at an earlier point in time, providing at least token financial support, and arranging for prison visitation. 5 How to weigh 4 We agree with appellants that the ruling erroneously states that they never requested child support. In fact, appellants requested support from the natural parents in their in loco parentis petition. 5 Father testified he asked his probation officer 12 to 15 times to change the terms of probation to allow him to have supervised contact with his son and to send financial support, but his requests were denied. Moreover, the record suggests that, even if father had diligently pursued visitation logistics 8 father s actions and inactions, though, is the province of the juvenile court. 6 Even if we might have weighed the evidence differently, we cannot say that the juvenile court lacked any reasonable basis for finding that father acted persistently and vigorously under the circumstances. at 250, ¶ 22, 995 P.2d at 686. Michael J., 196 Ariz. This is especially true given its finding that father balanced his sincere effort to initiate a parental relationship against mitigat[ing] the confusion to [the child] and disruption of [appellants ] household. 2. ¶17 Probation Records Finally, appellants claim the juvenile court erred by refusing to issue the court orders necessary for Appellants to review [father s] probation file . . . then allowed [father] to pick and choose the records he wished to admit at the severance hearing. appellants We decline provide supporting it. no to address legal this argument contention or legal because authority A party must present significant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statutes, and portions of the from his end, appellants would not have allowed the child to visit him in prison. 6 We note that, faced with conflicting testimony, the juvenile court at times adopted father s version of events in its findings. [T]he credibility of a witness is for the trier of fact not an appellate court. State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (citation omitted). 9 record. See ARCAP 13(a)(6). The failure to present an argument in this manner usually constitutes abandonment and waiver of that issue. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (citation omitted). See also Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (holding appellate courts will not consider argument posited without authority. ) (citation omitted). CONCLUSION ¶18 the For the foregoing reasons, we affirm the judgment of juvenile attorneys fees. fee court. award, Father and we cites no therefore legal deny basis his for request an for See ARCAP Rule 21(c)(1); Ezell v. Quon, 585 Ariz. Adv. Rep. 40, ¶ 31, 233 P.3d 645 (2010). /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 10
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