Rebecca S. v. Amber S.

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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 REBECCA S., Appellant, v. AMBER S., KYLE R., VICTORIA P., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-JV 11-0092 DIVISION ONE FILED: 10/20/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Navajo County Cause No. S0900SV201000028/S0900GC201000077 The Honorable Michala M. Ruechel, Judge AFFIRMED Law Office of Michelle L. Ratner by Michelle L. Ratner Attorney for Appellant Flagstaff Riggs, Ellsworth & Porter, P.L.C. Show Low by Michael R. Ellsworth Attorney for Appellees ________________________________________________________________ B A R K E R, Judge ¶1 Appellant, Rebecca S. ( Mother ), appeals the superior court s order terminating her parental rights to her daughter, Victoria, Statutes on grounds ( A.R.S. ) of abandonment section under 8-533(B)(1) Arizona (2010). Revised For the following reasons, we affirm. Facts and Procedural Background ¶2 Mother gave birth to Victoria in October 2007. time, Mother was living in Utah with Victoria, At the Victoria s father, and T.S., another of Mother s children. Soon after the birth litigation of Victoria, Mother s ex-husband began obtain full-custody of his three children with Mother. 1 to Mother sent Victoria to stay with her parents in Arizona because she could not prepare for the litigation involving her ex-husband while caring for the newborn. Victoria eventually came back to live with Mother in Utah. ¶3 In arrested and the Spring being of 2008, investigated when and Victoria s charged for father child was abuse allegations, Mother again sent Victoria, along with T.S., to live with her family in Arizona. Mother sent the children away because she did not want them to be in the environment created by the arrest and investigation. 1 Victoria lived with Mother s Mother s ex-husband is the father of three children for whom he is fighting for custody in a separate case. He is not Victoria s father. 2 sister and brother-in-law ( Appellees ) in Arizona until July 2008. ¶4 In July, Mother enlisted the police Victoria and T.S. from Appellees in Arizona. 2 police with her because she was to retrieve Mother brought the apprehensive about the Appellees would react; she wanted [t]o keep the peace. way Mother first went to her mother s house, and when she did not find the children there, she took the police to Appellees house. After the incident in July, Victoria and T.S. stayed with Mother in Utah until November or December of 2008. However, because Mother was working during Christmas and had to place Victoria in fulltime day care, she decided to send the girls back to her parents in Arizona for Christmas. ¶5 she After Mother completed her schooling in January 2009, moved daughters. to Kingman to be closer to her family and her However, Mother was unable to find work, so she moved back to Utah and did not take the children with her. In early 2009, Mother was pregnant and sick during the course of her pregnancy, and she September 2009. Feeling Victoria, Mother continued underwent that to she leave 2 a was Caesarean unable Victoria in section to the care care in for of At the trial, Mother testified that she believed she was sending her children to live with her parents. However, it was apparent that the children spent the majority of their time living with Appellees. 3 Appellees in Arizona where Victoria has lived from December 2008 to the present. ¶6 Between December 2008 limited contact with Victoria. and June 2010, Mother had During this time Mother called her mother to ask about Victoria, but she did not communicate with Victoria directly while Victoria was in Arizona. sent clothing instances, support. and but other she did items not send the Victoria regular on cards isolated or monetary In November 2010, Mother had a visit with Victoria. The visit did not go well. and for Mother two were unable Victoria did not recognize Mother to bond. Mother missed two scheduled visits with Victoria in January and February. other As to the visitation scheduled in January, Mother was unable to attend due to illness. Weather delays during her travel from Utah to Arizona prevented her from attending the visitation scheduled in February. ¶7 In November 2009, Mother signed a consent to guardianship to allow Appellees to obtain medical care and other care for Victoria. Appellees did not file the consent or seek guardianship of Victoria for about eight months. On July 30, 2010, Appellees filed a petition for temporary appointment as guardians for Victoria. The petition requested emergency appointment without notice, citing Appellees fear that Victoria would be taken by her father s 4 family. The court granted emergency guardianship to Appellees without restrictions and set a hearing for August 24, 2010. ¶8 Prior to the hearing on August 24, Mother filed an objection to the petition for guardianship; she stated that her family had guardianship misled in her November when she 2009. signed At the the consent hearing, the to court appointed a Guardian Ad Litem for Victoria and set a further hearing on the Guardianship for September. Appellees filed a Petition for In September 2010, Termination of Parent Child Relationship, and the court combined the termination matter with the guardianship matter. At the combined hearing on November 9, 2010, leave Mother agreed Victoria in place. to the temporary guardianship of Mother was not represented at the hearing, but she advised the court she understood her rights and had not been forced, threatened, or coerced into the agreement. 3 The Guardian Ad Litem agreed that the temporary agreement was in Victoria s best interests. ¶9 In December custody of Victoria. 2010, Mother filed a motion to regain On January 6, 2011, the court held a hearing, heard argument, and denied the motion finding that the guardianship 3 was in Mother was severance matter. Victoria s best subsequently 5 interests. appointed A counsel severance in the trial was set for March 3, 2011. The parties waived a social study. ¶10 After the two-day trial, the court granted Appellees petition to sever and petition for guardianship. The court found by clear and convincing evidence that Mother had abandoned Victoria pursuant to A.R.S. §§ 8-533, -531. found that Mother failed to maintain a The court further normal parent-child relationship for a period of eighteen months without good cause, had de minimus contact with support and communication. Victoria, and provided minimal The court found by a preponderance of the evidence that severance of the parent-child relationship was in the best interests of Victoria. Mother 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 ¶11 On appeal, we do not reweigh the evidence nor make credibility determinations; instead, we examine the record merely to determine whether there is sufficient evidence of 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. ). We will affirm a juvenile court s 6 decision unless, as a matter of law, no reasonable fact-finder could have found the evidence supported the statutory grounds for termination or there are errors of law. Denise R. v. Ariz. Dep t. of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d, 1263, 1266 (App. 2009). ¶12 Mother argues that (1) the procedure for finding the legal concept of abandonment as defined by A.R.S. § 8-531 is unconstitutional, (2) the court abused its discretion by allowing Appellees to sabotage return of the child to Mother, (3) the court s findings were unsupported by the evidence, and (4) the court did not consider important issues when considering best interests. 1. Constitutionality of Abandonment Statute ¶13 Mother challenges the constitutionality of the court s termination abandonment. of the parent-child relationship on grounds of She argues that under Troxel v. Granville, 530 U.S. 57 (2000), the court failed to give special consideration to her determination that leaving Victoria with Appellees was in the child s best interests. The Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. U.S. at 65. Troxel, 530 The procedures for termination of the parent-child relationship on the grounds of abandonment pursuant to A.R.S. §§ 8-531, -533 respect these fundamental rights. 7 See Kent K. v. Bobby M., 210 Ariz. 279, 282, ¶ 11, 110 P.3d 1013, 1016 (2005) (Fundamental rights involved in severance cases can be overridden only by the combined elements of statutorily defined improper behavior interests. ). of a the parent and the child s best The statute defines abandonment as the failure parent regular by to contact provide with the reasonable child. support A.R.S. and § to maintain 8-531(1). The statute contemplates that circumstances may arise when a parent would decide it is best for the child to be placed in the custody of another person; thus, it provides that [f]ailure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. Id. (emphasis added). has been held to be constitutional. This statute See Michael J. v. Ariz. Dep t. of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12, 995 P.2d 682, 684-85 (2000) (recognizing that the fundamental right to parent can be terminated if the court finds, by clear and convincing evidence, one of the statutory grounds set out in § 8-533 and that the termination is in the child s best interests). ¶14 statute The facts here do not support a determination that the is unconstitutional as applied, section on sufficiency of the evidence. as discussed in the The facts supporting abandonment were not that Mother permitted a guardianship, but 8 that she failed to have any kind of reasonable contact or relationship with Victoria during the time Victoria was with Appellees. A parent must exercise the right in order for it to be protected. fundamental parental See Troxel, 530 U.S. at 68 (stating that the State will not interfere with the private realm of the family so long as a parent adequately cares for his or her children ). Thus, we find no error. 2. Court s Exclusion of T.S. s Letter ¶15 Mother discretion in next contends allowing Victoria to Mother. that Appellees the to court sabotage abused the its return of Mother develops this argument as a claim that the court erred in excluding from evidence a letter written by T.S.. will not Unless the juvenile court abused its discretion, we disturb evidence. the court s ruling on the admissibility of In re Jonah T., 196 Ariz. 204, 208, ¶ 15, 994 P.2d 1019, 1023 (App. 1999). ¶16 To interests, show that Mother severance introduced was not evidence in that Victoria s two of best Mother s brothers, who were living either with Mother s mother or in the area, were being charged or investigated for child molestation. To further support this argument, Mother sought to admit a letter written by T.S. containing a description of events she experienced mother. while The court living with determined Appellees that 9 there and with was not Mother s sufficient indicia of reliability admit the letter. under the circumstances, and did not T.S. had written the letter a couple of weeks before the trial. Mother testified that T.S. wanted to write a letter to the courts, because she knew [Mother] was fighting for Victoria. When T.S. testified telephonically during the trial, Mother had the opportunity to elicit the same evidence that was contained in the letter. We conclude that the court did not abuse its discretion in excluding the letter. 3. Sufficiency of the Evidence ¶17 Mother next argues that the court s findings were not supported by the evidence. Mother does not contest that Victoria has resided with Appellees from December 2008 to the present period or that consisted Mother s contact of three only with Victoria visitation during days. that Instead, Mother s argument focuses on the court s failure to consider the intentions behind her actions. This argument necessarily fails because: [A]bandonment 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., (expressly 196 noting Ariz. that at the 249-50, ¶ decision 10 18, to 995 P.2d consider at a 685-86 parent s conduct rather than his subjective intent fully accorded with the legislature s decision to delete the intent language from the definition of abandonment ). The court properly focused on Mother s conduct. ¶18 Furthermore, findings: Mother the did evidence not maintain supports regular the court s contact, provide reasonable support, or provide normal supervision for more than six months. For a period of eighteen months, Victoria resided in Arizona with Appellees. During that time, Mother called her mother weekly for updates on Victoria, but she did not call Appellees While or life make any effort events may have to have contact prevented with Mother from Victoria. physically caring for her daughter for a time, these were not just cause for her failure to maintain a parent-child relationship. See Appeal in Pima County Juv. Severance Action No. S-114487, 179 Ariz. 86, 101, 876 P.2d 1121, 1136 (1994) (legitimate reasons for failure to act may required good cause). such as shoes, still rise to the statutorily Mother sent a few items for Victoria, clothes, etc. four was times living Mother sent fifty dollars for care and maintenance February support, regular case case. to 2011. contact, Id. at and Victoria least Appellees. in which at the once in probably throughout only period not What normal 96-97, 11 876 constitutes supervision P.2d at with reasonable varies 1131-32 from (When circumstances prevent [the parent] from exercising traditional methods of bonding . . . [the parent] must act persistently to establish the relationship however possible and must vigorously assert his [or her] legal rights. ). Though we trust Mother meant well, there was sufficient evidence to support the legal standard for abandonment. 4. Best Interests ¶19 Lastly, Mother argues that the court did not consider important issues when it determined whether severance was in the best interests of Victoria. The court must find by a preponderance of the evidence that severing the parental rights is in the best interests of the child. 288, ¶ 42, 110 P.3d at 1022. Kent K., 210 Ariz. at To make this determination, the court must include a finding as to how the child would benefit from a severance relationship. or be harmed by the continuation of the Mary Lou C. v. Ariz. Dep t. of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (quoting Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990)). The court made specific best-interest findings as to severance how the permanency. would provide needed stability and The court found that Victoria was tightly bonded with Appellees, they were the only parents she knew, and she had resided findings. with them since 2008. The record supports these Victoria is extremely comfortable with Appellees; she 12 is affectionate with them and views them as her parents. There was no error on these grounds. Conclusion ¶20 Finding sufficient evidence to support the termination of Mother s parental rights, we affirm. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ ANN A.SCOTT TIMMER, Presiding Judge /s/ ____________________________________ PATRICK IRVINE, Judge 13

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