NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NICHOLAS S., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.S., S.M.,
Appellees.
No. 1 CA-JV 13-0283
FILED 05/22/2014
Appeal from the Superior Court in Navajo County
No. S0900JD201100015
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL
John A. Banker, Attorney at Law, Taylor
By John A. Banker
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Arizona Department of Economic Security
NICHOLAS S. v. ADES, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
N O R R I S, Judge:
¶1 Nicholas S. (“Father”) appeals from the superior court’s
order terminating his parental rights to his daughter, E.S. On appeal, he
argues the superior court should not have found he failed to appear at the
initial severance hearing without good cause. He also argues the Arizona
Department of Economic Security (“ADES”) failed to notify him promptly
of reunification services and failed to present sufficient evidence that he
had abandoned E.S. and that termination was in E.S.’s best interests. For
the reasons discussed below, we disagree with Father’s arguments and
affirm the superior court’s order.
FACTS AND PROCEDURAL BACKGROUND
¶2 E.S. was born in March 2004 to Sarah M. Although Father
acknowledged paternity, he did not maintain regular contact with E.S.
after her birth. Father joined the military in 2008. On March 11, 2011,
ADES took E.S. and her sibling 1 into custody because Sarah M. was
unable to provide the children with a suitable living arrangement. ADES
placed the children with their maternal grandmother. On March 16, 2011,
ADES filed a dependency petition, alleging Father had neglected E.S. by
abandoning her. At that time, Father was stationed in Iraq.
¶3 On May 17, 2011, at the initial dependency hearing, Father’s
counsel accepted service of the operative dependency petition and, as
reflected in the minute entry from the hearing, asked the superior court to
find Father in “default” for failing to appear. The court did so, noting
Father was in the military and deployed overseas. The court then found
E.S. dependent as to Father.
1Father was not the sibling’s father.
2
NICHOLAS S. v. ADES, et al.
Decision of the Court
¶4 Father returned to the United States from Iraq in May 2011.
On January 7, 2013, ADES moved to terminate Father’s parental rights
under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(1) (2014)
(abandonment). 2 At the initial termination hearing, Father’s counsel
informed the court Father would not be contesting termination. The court
found Father had been properly served with the motion to terminate
through counsel, had notice of the hearing, and had failed to appear. The
court thus “deemed [him] to have admitted the allegations set forth in the
[termination motion]” and scheduled a subsequent termination hearing to
allow ADES to present evidence in support of its motion.
¶5 On April 8, 2013, Father moved to vacate the superior court’s
May 17, 2011 entry of “default” for failing to appear at the initial
dependency hearing, citing the Servicemembers Civil Relief Act
(“SCRA”). See 50 U.S.C.A. app. §§ 501 to 597b (West, Westlaw through
P.L. 113-92 (excluding P.L. 113-79 and 113-89)). The superior court denied
the motion.
¶6 At the subsequent termination hearing, ADES presented
evidence Father had failed to provide reasonable support for and to
maintain regular contact with E.S. for a period exceeding six months. See
A.R.S. § 8-531(1) (2014). Over ADES’s objection, the court allowed Father
to testify telephonically and to present witnesses, including witnesses who
addressed E.S.’s best interests. See A.R.S. § 8-533(B) (2014). The court
found ADES had proven Father had abandoned E.S. and termination was
in E.S.’s best interests, and it terminated Father’s parental rights.
2Although the Arizona Legislature amended statutes cited in
this decision after ADES filed the dependency petition, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.
3
NICHOLAS S. v. ADES, et al.
Decision of the Court
DISCUSSION
I. Father’s Failure to Appear
¶7 Father first argues the superior court should not have found
he waived his rights 3 and thereby admitted the allegations in the motion
to terminate by failing to appear at the initial termination hearing. Father
asserts he was deprived of an opportunity to testify “on the issue of
abandonment” and argues the superior court should have stayed the
termination proceedings sua sponte pursuant to § 522 of the SCRA or,
alternatively, should have granted his motion to vacate the entry of
“default.” We disagree.
¶8 We note, first, that Father’s argument is premised on a
misunderstanding of the proceedings in this case. As discussed, supra ¶ 5,
Father moved to vacate the “default” for failing to appear at the initial
dependency hearing; he did not move to vacate the superior court’s finding
he had waived his rights by failing to appear at the initial termination
hearing. Father did not appeal the dependency ruling, even though that
ruling was separately appealable. See Lindsey M. v. Ariz. Dep’t of Econ. Sec.,
212 Ariz. 43, 45, ¶ 5, 127 P.3d 59, 61 (App. 2006). Thus, Father’s argument
that the superior court should have granted his motion to vacate the entry
of “default” is not properly before us. We nevertheless address Father’s
argument the superior court should have stayed the termination
proceedings sua sponte pursuant to § 522 of the SCRA. See Kenneth B. v.
Tina B., 226 Ariz. 33, 36, ¶ 12, 243 P.3d 636, 639 (App. 2010) (appellate
court reviews issues of law de novo).
¶9 Section 522 of the SCRA applies to “any civil action or
proceeding” if the defendant is in military service or within 90 days of
termination or release from service and has received notice of the
proceeding. 50 U.S.C.A. app. § 522(a). The section entitles a
servicemember to a stay of the proceeding upon a showing that, inter alia,
the servicemember’s military duties “materially affect the
servicemember’s ability to appear.” 50 U.S.C.A. app. § 522(b)(1), (2).
3Although Father makes this argument in terms of an entry
of “default,” in Christy A. v. Arizona Department of Economic Security, 217
Ariz. 299, 306, ¶ 24, 173 P.3d 463, 470 (App. 2007), we explained that a
“finding of waiver of rights” is the “more proper[]” terminology.
4
NICHOLAS S. v. ADES, et al.
Decision of the Court
¶10 Because Father was in the military during the pendency of
the termination proceedings and had received notice of the proceedings,
§ 522 was applicable. Father, however, never applied for a stay, and the
superior court was not required to grant one sua sponte. See 50 U.S.C.A.
app. § 522(b)(1) (“[T]he court may on its own motion and shall, upon
application by the servicemember, stay the action for a period of not less
than 90 days . . . .” (emphasis added)).
¶11 In addition, the record does not reflect Father’s military
duties materially affected his ability to appear during the pendency of this
case. Although Father did not appear at the initial termination hearing,
his counsel advised the court he was not going to contest termination of
his parental rights. Further, the record contains no evidence Father’s
military duties prevented him from appearing at the initial severance
hearing, and, indeed, he appeared telephonically at later hearings.
¶12 For these reasons, we reject Father’s argument the superior
court should have stayed the termination proceedings sua sponte
pursuant to § 522 of the SCRA.
II. Notification of Reunification Services
¶13 Next, Father argues ADES was required to notify him
promptly of available reunification services. ADES, however, has no duty
to notify a parent of available reunification services before seeking
termination of parental rights when, as here, there is no parent-child
relationship and the statutory ground for termination is abandonment.
Toni W. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 61, 66, ¶ 15, 993 P.2d 462, 467
(App. 1999). Moreover, although not required, ADES attempted to
contact Father on numerous occasions by letter, phone, and email
regarding the availability of reunification services before moving to
terminate his parental rights. Yet, Father never responded to these efforts.
5
NICHOLAS S. v. ADES, et al.
Decision of the Court
III. Sufficiency of the Evidence 4
A. Abandonment
¶14 Next, Father argues ADES failed to present sufficient
evidence he had abandoned E.S. He asserts in particular that his failure to
establish a normal parental relationship with her was with legal
justification -- his military service. We disagree.
¶15 ADES must show, by clear and convincing evidence, that
Father abandoned E.S. A.R.S. § 8-537(B) (2014); Ariz. R.P. Juv. Ct. 66(c).
“[A]bandonment is measured not by a parent’s subjective intent, but by
the parent’s conduct: [A.R.S. § 8-531(1)] 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. 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 constitutes prima facie evidence of
abandonment.” A.R.S. § 8-531(1).
¶16 Here, ADES presented overwhelming evidence Father
abandoned E.S. without legal justification. Although Father was deployed
when ADES took E.S. into custody, he returned to the United States in
May 2011. He thereafter made no effort to establish a parental
relationship with E.S. and did not provide E.S. with any financial support
or medical, dental, or educational benefits which were available to E.S.
because of Father’s military service. An ADES unit supervisor also
testified Father had not sent E.S. any gifts, cards, letters, photographs of
himself, or clothing since at least March 2011. Moreover, E.S. did not
know Father was her father. Furthermore, Father failed to appear at the
initial termination hearing and thus admitted the motion’s allegations that
he had failed to provide E.S. with reasonable support and appropriate
parental supervision. See A.R.S. § 8-863 (2014).
4We review the superior court’s decision to terminate
parental rights for an abuse of discretion and will not disturb its findings
unless they are clearly erroneous with no reasonable evidence to support
them. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d
43, 47 (App. 2004).
6
NICHOLAS S. v. ADES, et al.
Decision of the Court
¶17 Given this evidence, the superior court did not abuse its
discretion in finding ADES had presented sufficient evidence that Father
had abandoned E.S.
B. Best Interests
¶18 Finally, Father argues ADES failed to present sufficient
evidence that termination of his parental rights was in E.S.’s best interests.
See Ariz. R.P. Juv. Ct. 66(c). Specifically, Father argues termination of his
parental rights would jeopardize the relationships E.S. has established
with her paternal grandparents and half-siblings. 5 We disagree with this
argument as well.
¶19 ADES presented evidence that E.S.’s maternal grandmother,
who had expressed an interest in adopting E.S., both allowed and
encouraged E.S. to visit her paternal grandparents on a regular basis and
had no intention of discontinuing those visits. The superior court found
that although “[t]he potential loss of the relationship between [E.S.] and
her paternal grandparents is very troubling[,] . . . the Court cannot find
that it outweighs the need [for E.S.] to have the stability, security and
permanence that an adoption would provide.” The court also found that
the military benefits Father could provide did not “make up for the
permanence [lost by E.S.] by being a ward of the Court for years” and
would not provide her with the “safety and security of having a
permanent and stable home that adoption would provide.” Given this
evidence, the superior court did not abuse its discretion in finding
termination of Father’s parental rights was in E.S.’s best interests.
5The record reflects E.S. had only met her half-siblings once,
over the July 4, 2013 holiday weekend.
7
NICHOLAS S. v. ADES, et al.
Decision of the Court
CONCLUSION
¶20 For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights to E.S.
:gsh
8