ANTONIO G. v. ADES, J.G.

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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 ANTONIO G., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, J.G., ) ) Appellees. ) ) __________________________________) 1 CA-JV 13-0089 DIVISION ONE FILED: 9/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT B MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv.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. JD20642 The Honorable Joan M. Sinclair, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Michael Valenzuela, Assistant Attorney General Attorneys for Appellee Law Office of David M. Osterfeld By David M. Osterfeld Attorneys for Appellant Buckeye G O U L D, Judge ¶1 Antonio G. ( Father ) appeals the juvenile order terminating his parental rights to J.G. ( Child ). court s Father argues the failed to Arizona prove Department he of Economic abandoned Child by Services clear and ( ADES ) convincing evidence and the court erred in finding the severance was in Child s best interests. For the reasons set forth below, we affirm. Facts and Procedural Background ¶2 Child, who was born August 12, 2009, is the biological child of Father and Hannah M. ( Mother ).1 Mother and Child lived with Father for the first eight months of Child s life. Mother and Child moved out of Father s home in early 2010, and Father did not see Child again until January, 2013. ¶3 In the summer of 2011, Child Protective Services ( CPS ) in Texas opened a case on Mother based on a report Mother and Child were homeless. Father, who was living in Texas at that time, was interviewed as part of the CPS investigation. the same time as the CPS investigation, Mother nutritional assistance from the state of Texas. Around applied for As a result of Mother s application for state benefits, Texas initiated child support proceedings against Father. to Father s paternity of Child The child support case led being established, and in September 2011 Father was ordered to pay child support for Child. Mother s parental rights to Child were severed on November 26, 2012 and she has not appealed that decision. Therefore, she is not a party to this appeal. 1 2 ¶4 When Mother and Child moved to Arizona in August 2011, CPS in Maricopa County received a report that Mother had fled the state of Texas before completing her required substance abuse and mental-health treatment. CPS met with Mother and voiced concerns over her failure to complete treatment in Texas. Based on those concerns, CPS took Child into temporary physical custody. ¶5 ADES subsequently filed a petition alleging that Child was dependent. As to Father, the petition alleged that he had neglected Child by failing to provide for her basic needs and failing to protect her from Mother s substance abuse and mental illness. ADES was unable to locate Father and obtained leave of court to serve him by publication. juvenile service court by held Father s publication On November 2, 2011, the publication complete. The hearing found court juvenile and also determined that Father had failed to appear without good cause, found Child dependant as to Father, and approved family reunification as the case plan. ¶6 ADES finally located Father in March 2012 through a parent-locator service. Father received a phone call from the parent-locator service in March of 2012 advising him that there were proceedings in Arizona concerning Mother. parent-locator service that given the Father told the demands of his schedule, he was too busy to speak with them about the case. 3 work ¶7 Shortly after ADES was notified of Father s location, a CPS case manager called Father and left him a voicemail. In the voicemail, the case manager advised Father that Child was in the custody of CPS in Arizona. However, Father did not contact CPS for approximately two months, and when he did, it was via email. Over the next six months Father did not speak with the case manager directly; instead, Father s mother contacted the case manager on Arizona. his behalf about the dependency proceedings in In her emails, Father s mother explained that Father was working and could not directly communicate with the case manager because of the noise at work. to try to contact Father directly The case manager continued by phone, but he did not respond. ¶8 In August 2012, Child s guardian ad litem asked the juvenile court at a Report and Review Hearing to change the case plan from reunification to severance and adoption due to Father s lack of participation. The juvenile court approved the change, and on September 6, 2012 the guardian ad litem filed a petition to sever Father s parental rights on the grounds of abandonment and nine months out-of-home placement. ( A.R.S. ) § 8-533(B)(8)(b) Arizona Revised Statute (abandonment); A.R.S. § 8- 533(B)(8)(a) (nine months out-of-home placement). ¶9 by The case manager s first direct contact with Father was phone in November 2012, more 4 than two months after the severance petition had been filed and nine months after Father had been notified about Child s CPS case. At Father s request, the case manager arranged for Father to have telephonic contact with Child through Child s foster parents. However, Child was whiny during the phone call and did not want to talk to Father. A few days after the first call, foster parents arranged another phone call with Father, but Child still did not want to talk to him on the phone. ¶10 Not long after the phone call attempts, Father sent Child two care packages that included his picture, some toys, candy and clothes. on January 25, Father then had an in-person visit with Child 2013. Child did not recognize initially did not want to interact with him. Father and However, during the course of the visit Child began to interact with Father and participated in some activities with him, such as reading. ¶11 On March 1, 2013, the juvenile court held the severance hearing. ADES substituted as the petitioner in the matter and chose to proceed only on the abandonment ground. 2013, the juvenile court issued a ruling parental rights on the ground of abandonment. also found severance was in Child s best On March 22, severing Father s The juvenile court interests. Father appealed after the juvenile court granted him leave to file an untimely notice of appeal. This court has jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1). 5 Discussion ¶12 On appeal, Father challenges findings in support of severance. the juvenile court s Father argues the juvenile court erred in terminating his parental rights because there was insufficient Father evidence asserts the to show juvenile he abandoned court erred Child. when Further, it determined severance was in Child s best interests. ¶13 We view the evidence in a severance case in the light most favorable to sustaining the juvenile court s findings. Christina G. v. Ariz. Dep t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the findings; credibility we will of only witnesses, reject the reasonable evidence supports them. and court s make appropriate findings if no Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002); In re Appeal in Maricopa County, Juvenile Action No. JS4130, 132 Ariz. 486, 488, 647 P.2d 184, 186 (App. 1982) ( [T]he finding of the trier of fact should be sustained if the evidence furnishes reasonable or substantial support therefor. ). I. Father Abandoned Child Under A.R.S. § 8-533(B)(1). ¶14 not Under by conduct. a A.R.S. parent s § 8-533(B)(1), subjective abandonment intent, but by is measured the parent s Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 6 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). A court must examine whether a parent has provided reasonable support, maintained regular contact, made more than minimal efforts to support and communicate with Failure to child, Id. relationship. the at maintain a and 249-50, normal maintained ¶ 18, parental a 999 normal P.2d parental at relationship 685-86. with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. A.R.S. § 8-531(1). ¶15 court We conclude the juvenile did not abuse its discretion in terminating Father s parental rights on the grounds of abandonment. eight months Although Father lived with Mother and Child for after Child s birth in August 2009, he had no contact with Child from April 2010 to November 2012, a period of over two and one-half years. When Father was notified that Child had CPS a pending approximately case nine contact with months Child to in contact until a March Child. severance 2012, he Father petition waited made had no effort to been filed. Indeed, even after the severance petition had been filed, Father waited over two months to establish contact with Child. ¶16 We note that Father did pay child support for Child beginning in September 2011, and that Father sent a few gifts and cards to Child. Father also made a few phone calls to Child, and travelled to Arizona to visit Child in January 2013. Despite these commendable efforts, we are unable to conclude the juvenile 7 court erred in determining these actions failed to show Father acted persistently to establish the [parent-child] relationship however possible and that he vigorously assert[ed] his legal rights to Child. at 686. do In asserting his parental rights, Father was required to more petition; rights. Michael J., 196 Ariz. at 250, ¶ 22, 995 P.2d than he just needed wait to to respond or affirmatively oppose act to a severance establish his Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 99-100, 876 P.2d 1121, 1133-34 (1994). See In re Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 242, 756 P.2d 335, 339 (App. 1988) (stating that the sum of father s visits with son four times in the first year and once a year for the next two years does not demonstrate any participation by or presence of father in the child s life). Here, the record supports the juvenile court s determination that Father failed to affirmatively establish his rights as a parent. II. The Juvenile Court Had Reasonable Grounds to Terminating Father s Parental Rights Served Child s Interests. ¶17 that Father severance also is in challenges Child s the best juvenile interests. court s In Find Best finding addition to finding one of the grounds for severance by clear and convincing evidence, the juvenile court must also find, by a preponderance of the evidence, that severance is in the best interests of the child. In re Appeal in Maricopa County, Juvenile Action No. JS8 8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994). A best interests inquiry focuses primarily upon the interests of the child, as distinct from those of the parent. Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37, 110 P.3d 1013, 1021 (2005). ¶18 Here, the record supports the juvenile court s finding that terminating Father s parental rights serves Child s best interests. Child has developed a close bond with her foster family, and they have provided for her needs. Child has been with her foster home placement since 2011, and her half-brother lives in the same foster home. See Juvenile Action No. JS-8490, 179 Ariz. at 108, 876 P.2d at 1143 (stating that child was well cared for and loved by the foster family she lived with for six years such that the potential benefit from a similar relationship with her natural father was outweighed by the risk of harm ). ¶19 expressed Moreover, a the willingness evidence shows to Child, adopt permanency and stability for Child. that foster thereby parents establishing Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (evidence of an adoption plan and that a child is adoptable are factors that may support a finding that a child would benefit from a termination of parental rights). 9 Conclusion ¶20 For the reasons discussed above, we affirm the juvenile court s ruling terminating Father s parental rights to Child. /S/_______________________________ ANDREW W. GOULD, Judge CONCURRING: /S/_________________________________ PETER B. SWANN, Presiding Judge /S/_________________________________ PATRICIA K. NORRIS, Judge 10

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