David C. v. Charrid S. 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); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DAVID C., ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appellant, v. CHARRID S., VALYN C., AND CARLILE C., APPELLEES. DIVISION ONE FILED: 06/09/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0022 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JS11609 The Honorable Christopher A. Coury, Judge AFFIRMED Robert D. Rosanelli, Esq. Attorney for Appellant Phoenix Vierling Law Offices by Thomas Vierling Attorneys for Appellee Phoenix B A R K E R, Judge ¶1 court s Appellant order David terminating C. ( Father ) his parental appeals the rights to juvenile his two children, C.S. and V.S. ( the Children ). Finding no error, we affirm. Facts and Procedural History 1 ¶2 Father is the biological father of V.S. and C.S., born May 2005 and August 2007, respectively. is the Children s biological mother. Charrid S. ( Mother ) In April 2009, against Father s wishes, Mother moved with the Children to Arizona while Father remained in Kansas. In October 2009, Mother filed a petition for dissolution of her marriage to Father. That action terminated with a consent decree ( Consent Decree ) in which Father consented to waiving his parental and access rights to the Children and Mother consented to waiving her rights to any future child dissolution support of from marriage, Father. Father In conjunction executed a document with the entitled Consent of Natural Father to Termination of Parental Rights ( Consent to Termination ) in which Father again agreed to waive his parental rights to the Children. ¶3 A year later, in September 2010, Mother filed a motion to terminate Father s parental rights to the Children on grounds of abandonment. In November 2010, following an initial severance hearing, the juvenile court ruled that because Father 1 We view the facts in the light most favorable to upholding the juvenile court s order. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). 2 had waived his parental rights in the Consent Decree and the Consent to Termination, Father had also waived his right to contest the issue of abandonment in the upcoming termination hearing. The court limited Father to presenting evidence on the single issue of the Children s best interest. ¶4 At the termination hearing in January 2011, Mother s testimony established that since Mother and the Children had moved to Arizona financially twenty-one supported contact with them. the months Children earlier, and was Father had not sporadic in his Mother also testified that the Children had been adversely emotionally impacted by Father s broken promises to visit and that the older of the two Children had become increasingly unwilling to talk to Father on the phone. ¶5 In a subsequent minute entry, the court ruled that Father had abandoned the Children pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1). The court also ruled that termination of Father s parental rights was in the best interest of the Children. Father 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 ¶6 Father argues that the court erred in finding that he had abandoned the Children pursuant to A.R.S. § 8-533(B)(1) and that terminating his parental rights would be in the Children s 3 best interest. instead, we On appeal, we do not reweigh the evidence; examine the record merely to determine whether reasonable evidence supports 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. ); Audra T. v. Ariz. Dep t. of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 court s (App. order 1998) severing ( We will parental not disturb rights unless the its juvenile factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them. ). 1. Abandonment ¶7 To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one statutory ground for termination as provided in A.R.S. § 8 533(B). Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, 12, ¶ 995 P.2d 682, 685 (2000). Under A.R.S. § 8 533(B)(l), evidence sufficient to justify the termination of the parent-child relationship abandoned the child. exists when the parent Abandonment is defined as: the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing 4 has normal supervision [and 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). ¶8 For abandonment to exist, there must be clear and convincing evidence of intentional conduct on the part of a parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. In re Appeal in Pima Cnty. Severance Action No. 1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985) (quoting Anonymous v. Anonymous, 25 Ariz. App. 10, 12, 540 P.2d 741, 743 (1975)). Additionally, abandonment 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., 196 Ariz. at 249 50, ¶ 18, 995 P.2d at 685 86. Here, as we describe below, sufficient evidence of abandonment exists to support the juvenile court s ruling. ¶9 Father consented to waiving his parental rights in two signed documents. The Consent to Termination, dated April 2010, stated, I David [C.] . . . do hereby relinquish and give up all 5 my rights to the care, custody, control and visitation of the minor children. . . . I understand that, upon entry of the final order of termination, the relationship of the parent and children and all the legal rights, shall no longer exist between the minor children and me. The Consent Decree, dated May 2010, stated, Mother is hereby granted sole custody of the parties [sic] minor children and Father has agreed to waive his parental and access rights to the minor children. ¶10 Father contends that he signed the Consent Decree and the Consent to Termination under duress and undue influence. This claim, however, is undermined by the language of the documents themselves. The Consent to Termination stated, This consent me is signed by freely and voluntarily, fraud, duress, coercion or undue influence. without any The Consent Decree stated, The parties, through their signatures below, believe that no duress or coercion is involved in their approval of the terms herein. Additionally, despite Father s claim of duress, Father made no attempt to challenge the documents in the legal proceeding in which they were executed, despite the court s suggestion that he could do so. Father claimed he had not challenged he attorney. to the documents because could not afford an However, it appears that Father was willing and able represent himself in other legal termination and dissolution proceedings. 6 matters throughout the We see no reason why he could not have done so in challenging these documents as well. ¶11 In addition to the pertinent documents, Father s conduct confirmed his intent to abandon his parental rights and responsibilities. Mother testified that Father was not involved in day-to-day parenting of the Children after the Children and Mother moved to Arizona a year and a half prior to the hearing. Upon their divorce, Father told Mother that he would not be able to even visit the Children in Arizona. Father s most recent visit prior to the hearing had occurred seven months earlier and had lasted only three hours. During that visit, Mother agreed to Father s request to return to her home on the following day to extend his visit, but Father never returned. On two previous trips to Arizona, Mother had to purchase the plane ticket for Father because he ticket himself. said he could not afford to purchase the In one instance, Father told Mother that he would not come to visit unless Mother signed a certain $10,000 deed on which Mother s signature was necessary. ¶12 Father s letters to the same time the visits stopped. Children stopped about the Regarding Father s history of phone calls to the Children, Mother testified, When there s no case court cases and no problems, it s infrequent, erratic, sometimes not for a month, we won t hear from him. Father testified that he called the children several times a week 7 though he would rarely get through. The juvenile court was certainly free to accept Mother s version of the facts on this point rather than Father s. ¶13 Consistent with the Consent to Termination, which released Father from his financial obligations to the Children, Father did not provide any financial support to the Children after they moved to Arizona. At one point, Father had asked Mother rhetorically, Why am I going to pay for my girls when I m not going to be able to visit or see them? See In re Maricopa Cnty. Juv. Action No. JS 3594, 133 Ariz. 582, 586, 653 P.2d 39, support 43 along (App. 1982) with (holding failing to that failure communicate is to pay child sufficient uphold a conclusion that the child has been abandoned ). statutory definition of abandonment is a conjunctive to The test: [T]he failure of a parent to provide reasonable support and to maintain regular contact with the child. (emphasis added). financial Father s assistance complete certainly A.R.S. § 8-531(1) failure supports the to provide juvenile any court s decision. ¶14 Accordingly, on this record, sufficient evidence supports the juvenile court s finding that Father abandoned the Children. 8 2. Best Interests ¶15 In addition termination, the to the statutory juvenile court grounds must necessary also find for by a preponderance of the evidence that termination is in the best interests of the children. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005); Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. To prove that termination is in a child s best interests, the juvenile court must find that the child would benefit from a severance continuation of the relationship. or be harmed by the Lawrence R. v. Ariz. Dep t of Econ. Sec., 217 Ariz. 585, 587, ¶¶ 7, 8, 177 P.3d 327, 329 (App. 2008) (quoting Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004)). ¶16 As conceded that interests to the facts termination when he signed relevant would the be to in Consent this the to issue, Father Children s Termination, best which stated, I believe that the termination of my parental rights is in the best interest of the minor children. Furthermore, Mother testified that it affected the Children emotionally when Father would call only sporadically and that it was confusing for them when he broke his promises to visit. Within the seven months preceding the hearing, Father broke several promises to visit the Children, disappointed. which caused them to be hurt and The older of the two Children began refusing to 9 talk to Father on the phone more and more frequently. Mother also testified that Father never had a bonded relationship with the Children and never took an active part in raising them. Accordingly, Mother testified that in the event of her death, it was imperative that the Children stay with her family who lived locally, and not return to Father s custody. Finally, Mother testified that an ongoing relationship would harm the Children because, in her words, there needs to be consistency that I m not sure that he is able to give them, and up to this point has not provided. ¶17 There was also evidence Children as financial pawns. that Father was using the Mother testified as follows: But there have been several occasions when he first has planned to come and see the girls and said, forget it, I m not coming now unless you sign the for $10,000 for the house. I m not coming to see the girls unless you do such and such. So it s just a game. It s been a game. The juvenile court found that [t]he children would benefit from being free from [Father s] destabilizing influence. ¶18 Finally, by permitting the Children s rights to be terminated as to Father, they would benefit by being adopted by one who would fulfill that important role in the future. See Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291 (stating that a factor to consider in the best interest test is whether a 10 child is adoptable). The termination order provides that opportunity. ¶19 On this record, sufficient facts support the juvenile court s finding that termination was in the best interests of the Children and thus the court did not err. Conclusion ¶20 Finding sufficient evidence to support the termination of Father s parental rights, we affirm. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 11
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