Michael V. v. Stephanie P.
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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
MICHAEL V.,
)
)
Appellant, )
)
v.
)
)
STEPHANIE P. and JAYDEN W.,
)
)
Appellees. )
)
__________________________________)
DIVISION ONE
FILED: 09/06/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
No. 1 CA-JV 11-0046
DEPARTMENT D
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(Not for Publication 103(G) Ariz.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. JS506628
The Honorable Terri L. Clarke, Judge Pro Tempore
AFFIRMED
The Stavris Law Firm, PLLC
By
Alison Stavris
Attorney for Appellant
Scottsdale
Law Offices of Kevin Jensen, PLLC
By
Kevin Jensen
Attorney for Appellee Stephanie P.
Mesa
S W A N N, Judge
¶1
Michael
V.
(“Father”)
appeals
the
juvenile
court’s
determination that he abandoned his son and that termination of
the parent-child relationship was in his son’s best interest.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2
Stephanie P. (“Mother”), then age 17, and Father, then
age 20, met for one day in July 2001.
learned she was pregnant.
A month later, Mother
When Mother was about three months
pregnant, Father was deployed to Afghanistan and remained there
until after Jayden W. was born in March 2002.
Father returned
to the United States in July 2002 and first visited Jayden that
August.
¶3
Father’s paternity was established in October 2002.
In January 2003, the court ordered Father to provide medical
insurance for Jayden, pay monthly child support starting March
2003, and pay $5,948.81 in arrearages; Father’s military wages
were garnished.
¶4
Father was deployed to Iraq for the first six months
of 2003.
When he returned, Mother took Jayden to California to
visit Father for the day.
Phoenix.
In November, Father visited Jayden in
During that visit, Father told Mother he could not
afford to come to Phoenix “every single month” but would like to
take Jayden for “two to three weeks at a time every couple
months,” starting the next day for a one-week visit.
1
Mother
We review the facts in the light most favorable to affirming
the juvenile court’s order, and will affirm unless, as a matter
of law, we find that no one could reasonably find evidence
supporting the grounds for termination to be clear and
convincing.
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz.
92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
2
initially agreed, but changed her mind and did not take Jayden
to Father the next day as planned.2
¶5
In October 2004, Father and Mother attended a court
hearing to modify child support.
After the hearing, Father
visited Jayden and again asked Mother if he could take the child
for a couple of weeks.
Mother, however, refused because Father
was “not here enough” and suggested that Father come to Phoenix
monthly to see Jayden and establish a relationship with him.
Father
came
to
Phoenix
in
November
and
saw
Jayden.
Mother
married Trevor P. (“Stepfather”) in December.
¶6
In 2005, Father attended Jayden’s birthday party and
spent time with Jayden the next day.
On the following day,
Mother asked Father to relinquish his parental rights so that
Jayden could be adopted and “sealed” in a religious ceremony.3
Father refused.
¶7
In April 2006, Mother spoke to Father by telephone to
inform Father that Jayden had been molested by a babysitter and
that criminal charges against the babysitter had been filed.
2
Mother and Father disagreed about whether Mother told Father
that she would not bring Jayden as planned.
Mother testified
that she told Father the next day that she changed her mind, and
that after Father left town, neither parent tried to contact the
other. Father testified that Mother simply did not show up and
could not be reached for five to six months.
3
Stepfather testified that the ceremony binds family members
“for eternity,” but that Jayden could not be sealed until
Stepfather adopted him.
3
Father called in May and June but stopped calling after that
because Mother’s voicemail switched to a “generic” message and
he thought the phone was “shut off.”4
¶8
In February 2010, Mother filed a petition to terminate
Father’s
parental
rights,
alleging
Jayden without just cause.
that
Father
had
abandoned
The petition further alleged that
Father had “very little contact” with Jayden since his birth and
had not seen the child for nearly five years, that Father had
not requested parenting time or kept Mother apprised of his
whereabouts, and that he had not paid child support for more
than one year.
The petition also alleged that termination of
Father’s parental rights was in Jayden’s best interests because
it
would
Jayden’s
allow
life,
termination;
he
Stepfather,
to
adopt
and
a
the
Mother
“Father
child.
figure”
Father
unsuccessfully
for
most
contested
participated
mediation, and the matter was set for trial.
of
the
in
A guardian ad
litem (“GAL”) was appointed for Jayden.
¶9
In February 2011, the court found that Father had “not
acted persistently since 2005 to establish or maintain a normal
parental
relationship
with
Jayden”
and
had
an
“inconsistent”
record of making partial child support payments.
4
The court
Neither Mother nor Father provided telephone records for this
period. Mother conceded that Father may have made these calls.
4
ruled
that
Mother
had
demonstrated
by
clear
and
convincing
evidence that Father had abandoned Jayden.
¶10
The
the
evidence
court
that
additionally
severance
found
was
in
by
a
Jayden’s
preponderance
best
of
interests
because the child had a parental relationship with Stepfather;
had lived as a family with Mother, Stepfather and his sisters
for most of his life; and had “no parental relationship” with
Father, whom he had last seen in 2005.
The court also believed
it would be “difficult if not impossible” for Father, who lived
out of state, to visit frequently or participate in reasonable
reunification counseling with Jayden.
¶11
Father timely appeals.
We have jurisdiction pursuant
to A.R.S. § 8-235(A).
DISCUSSION
¶12
To terminate parental rights, a juvenile court must
find that at least one statutory ground for termination exists
and that termination is in the best interests of the child.
See
A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶
41,
110
P.3d
1013,
1022
(2005).
We
will
not
termination order unless it is clearly erroneous.
reverse
a
Jennifer B.
v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68,
70
(App.
1997).
A
finding
is
unsupported by reasonable evidence.
clearly
if
it
is
Moreno v. Jones, 213 Ariz.
94, 98, ¶ 20, 139 P.3d 612, 616 (2006).
5
erroneous
I.
ABANDONMENT
¶13
Father first challenges the court’s determination that
he abandoned Jayden.
¶14
Arizona law defines “abandonment” as “the failure of a
parent to provide reasonable support and to maintain regular
contact with the child, including providing normal supervision.”
A.R.S. § 8-531(1).
a
parent
has
Abandonment includes a judicial finding that
made
only
communicate with the child.
minimal
efforts
to
support
and
Id.; see also Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682,
685-86
(2000).
Failure
to
maintain
a
normal
parental
relationship with the child without just cause for a period of
six
months
A.R.S.
§
constitutes
8-531(1).
prima
facie
Conditions
evidence
warranting
proven by clear and convincing evidence.
of
abandonment.
severance
must
be
See A.R.S. § 8-537(B).
Clear and convincing evidence is that which makes the alleged
facts highly probable or reasonably certain.
Denise R., 221
Ariz. at 93, ¶ 2, 210 P.3d at 1264.
¶15
After
October
2008,
Father
made
no
child
support
payments until March 2010, and he had no contact with Jayden
“from
2006
onward.”5
Those
facts,
5
absent
any
just
cause,
In March 2010, Father made a $3,555 payment. Mother filed her
petition to terminate Father’s parental rights on February 23,
2010, but Father testified at the severance hearing that he was
unaware of the petition when he made the March 2010 payment.
6
justified
Jayden.
the
juvenile
court’s
finding
that
Father
efforts
abandoned
after
See A.R.S. § 8-531(1).
¶16
Father
asserts
that
his
2006
–-
including e-mails and telephone calls to Mother, contact with
legal aid organizations, an attempt to glean Mother’s address
from ADES and sporadic child support payments -- were thwarted
by various circumstances but are evidence of his intention to
maintain a relationship with Jayden.
measured
by
Father’s
actual
Abandonment, however, is
conduct,
not
his
intent.
Michael J., 196 Ariz. at 249-50, ¶ 18, 995 P.2d at 685-86.
See
The
record here is devoid of any just cause for Father’s failure to
maintain a parental relationship with Jayden.
See Pima County
Juv. Severance Action No. S-114487, 179 Ariz. 86, 97, 876 P.2d
1121,
1132
persistently
(1994)
to
(requiring
establish
unwed
father
relationship
the
an
to
however
“act
possible”
with his child and “to vigorously assert his legal rights to the
extent necessary”).
A.
¶17
Petition for Parenting Time
Father
testified
that
he
knew
he
had
to
file
a
petition with the court to establish parenting time with Jayden.
But although he learned in late 2004 that Mother would not agree
to his suggested parenting time schedule and that she wanted
Father to relinquish his parental rights, Father never filed a
7
petition.
During the severance hearing Father testified that
the reason he never did so was because he did not know Mother’s
physical address and therefore there was “nowhere to serve her.”
¶18
aid
Father testified that he wrote letters asking legal
organizations
Jayden.
to
help
him
establish
parenting
time
with
To support that claim, Father entered into evidence two
letters, written in October 2004, from two organizations that
denied his request for help.
One letter, however, explained
that Father was seeking help to respond to a petition to modify
child support, not to gain parenting time.
provided
names
organizations
and
that
telephone
could
numbers
assist
The other letter
of
Father
three
different
his
endeavors.
in
Father, however, testified that he never followed up on those
referrals.
B.
Physical Address
¶19
Father
November
2005
asserts
was
that
limited
his
because
contact
with
he
not
did
Jayden
know
after
Mother’s
address and was “unable to locate” her or Jayden.
¶20
While the record demonstrates that Mother’s address
changed numerous times over the course of the proceedings, she
never moved from the Phoenix area, and her phone number and
8
primary e-mail address remained constant.6
Mother also testified
that she never “attempted to hide Jayden” from Father, never
ignored Father’s phone calls and never received any of the “20
to 30” e-mails Father testified that he sent to her from June
2006 until 2009.
Assuming
¶21
arguendo
the
truth
of
Father’s
allegation
that Mother refused to give him her physical address,7 the record
here
demonstrates
contacted
numerous
her.
Mutual
means
by
friends
which
were
Father
often
could
have
conduits
of
information between Mother and Father,8 so that Father could have
asked those persons about Mother’s location.
demonstrates
that
Father
participated
in
at
The record also
least
one
court
hearing where he could have asked the court to order Mother to
provide
her
address.
Finally,
Father
testified
that
Mother
would always drop off Jayden to visit him at pre-arranged times,
which
provided
him
an
opportunity
to
complete
service
of
a
petition for parenting time.
6
Mother did admit, however, that before 2005 she had a month-tomonth phone plan and was sometimes late paying her bills, so
that her number could have been disconnected for a week.
7
Mother denied this allegation.
8
Mother worked with these friends.
One introduced Mother and
Father, told Father that Mother was pregnant, and told Mother
when Father later married. Another helped Mother contact Father
to talk about the pregnancy.
9
¶22
Father testified that he wrote to ADES in late 2008 or
early 2009 to request her contact information, but that ADES did
not respond.
He offered into evidence a copy of a “draft”
document -- undated and without any address -- to represent the
contents of a letter he typed into the ADES website.
But the
document stated that Father already knew that Mother had married
and what her new last name was, that he had found her social
networking page on the internet, and that his friend confirmed
that Mother and Stepfather lived in Chandler and wanted to adopt
Jayden.
C.
¶23
Child Support
Father’s
often partial.
child
support
payments
were
sporadic
and
During the severance hearing, Father testified
that he was consistent with child support payments while on
active duty in the military and when he was working, because the
payments were taken directly from his wages.9
At other times he
made payments “[w]hen [he] could” and would use his annual tax
refunds to pay overdue support.
protection.
In 2009 he sought bankruptcy
Father also never provided health insurance for
Jayden because he “didn’t have time” to set it up during his
deployments.
9
Father testified he was on active duty from March 2003 to
September 2003, and June 2006 to November 2007.
He worked for
four months in 2008 before losing his job. In November 2008 he
returned to school.
10
¶24
Viewing this record in the light most favorable to
affirming the court’s decision below, we find no error in the
court’s
determination
that
Father
abandoned
Jayden.
To
the
extent that conflicting evidence was presented by Mother and
Father, the juvenile court was in the best position to weigh
that evidence.
See 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.”); see also Michael J., 196 Ariz. at 250, ¶ 20, 995
P.2d at 686 (“[Q]uestions of abandonment . . . are questions of
fact
for
resolution
by
the
trial
court.”)
(quoting
Maricopa
County Juv. Action No. JS–500274, 167 Ariz. 1, 4, 804 P.2d 730,
733 (1990)); Denise R., 221 Ariz. at 93-94, ¶ 4, 210 P.3d at
1264-65 (stating that an appeals court should “affirm a lower
court's
findings
of
fact
‘so
long
as
they
are
supported
by
reasonable evidence’”) (citation omitted).
II.
JAYDEN’S BEST INTERESTS
¶25
Father next asserts that Mother did not prove by a
preponderance of the evidence that severance was in Jayden’s
best interests.
¶26
We disagree.
“[P]reponderance of the evidence . . . is the proper
standard of proof to be applied to the best interests inquiry
11
. . . .”
Kent K., 210 Ariz. at 288, ¶ 42, 110 P.3d at 1022.
That standard “requires that the fact-finder determine whether a
fact sought to be proved is more probable than not.” Id. at 284,
¶ 25, 110 P.3d at 1018.
¶27
Here,
Mother
testified
that
she
began
dating
Stepfather when Jayden was one and a half years old and that
Jayden had enjoyed a “consistent family life” with Mother and
Stepfather
since
then.10
She
testified
that
Jayden
viewed
Stepfather “as his father” and would be confused if Father were
reintroduced into his life because Jayden, by then eight years
old, had not seen or had a relationship with Father since 2005.
Mother explained that it was awkward for Jayden to explain to
his friends why his last name was different from the rest of his
family.
Mother also testified that Jayden understood that he
was
“sealed”
not
Stepfather
to
testified
his
that
family
he
and
that
a
strong
had
he
wanted
to
relationship
be.
with
Jayden and that he wanted to adopt him “because he’s my son” and
to enable Jayden to be sealed to the family.
Jayden’s GAL
recommended that Father’s rights be terminated in order to give
Jayden
a
“sense
relationship
Jayden,”
that
especially
of
permanency”
already
since
exists
“no
10
and
to
between
relationship”
“legalize
this
[Stepfather]
and
existed
between
Jayden’s two sisters, born to Mother and Stepfather, were also
part of the family life Mother referenced.
12
Father
and
Jayden.
The
court’s
ruling
detailed
specific
findings why termination was in Jayden’s best interest.
A.R.S.
§
8-538
(requiring
written
findings
when
See
the
court
ruling
that
terminates the parent-child relationship).
CONCLUSION
¶28
We
find
no
error
in
the
court’s
termination was in Jayden’s best interest.
For the foregoing
reasons
order
we
affirm
the
juvenile
court’s
terminating
Father’s parental rights.
/s/
___________________________________
PETER B. SWANN, Presiding Judge
CONCURRING:
/s/
____________________________________
JON W. THOMPSON, Judge
/s/
____________________________________
JOHN C. GEMMILL, Judge
13
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