NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CARLOS O., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.B., Appellees.
No. 1 CA-JV 15-0338
FILED 5-3-2016
Appeal from the Superior Court in Maricopa County
No. JD502598
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Father
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
CARLOS O. v. DCS, C.B.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 Carlos O. (“Father”) challenges the order terminating his
parental rights to C., his child. He argues he was denied fundamentally fair
proceedings, and that there was insufficient evidence to support
termination. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 Father and Dina Avelar (“Mother”) are the biological parents
of C., who was born in 2008. In 2010 Father was deported to Mexico. After
the Department of Child Safety2 (“the Department”) received reports that
Mother was abusing drugs and C. was being left with a caregiver who had
a history of sexual abuse, the child was removed from Mother’s care.
¶3 The Department filed a dependency petition alleging Father
had abandoned, neglected, and failed to protect C. While the Department
was attempting to serve Father by publication, the case plan was changed
to severance and adoption, and the Department subsequently filed a
motion to terminate Father’s parental rights for abandoning C. After
service on Father was completed, the juvenile court held a concurrent
contested dependency and severance hearing, and Father testified by
telephone. The court found C. dependent, and also terminated Father’s
parental rights.3 Father appeals, and we have jurisdiction over his appeal
1 “We view the facts in the light most favorable to upholding the juvenile
court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7,
225 P.3d 604, 606 (App. 2010) (citation omitted).
2 The child was removed by Child Protective Services (CPS) of the Arizona
Department of Economic Security, but CPS was subsequently renamed and
reorganized as the Department of Child Safety. See S.B. 1001, 51st Leg., 2d
Spec. Sess. (Ariz. 2014).
3 The child had been found dependent as to Mother in 2012, and her
parental rights were terminated in 2013.
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CARLOS O. v. DCS, C.B.
Decision of the Court
under Arizona Revised Statutes (“A.R.S.”) sections 8-235, 12-120.21(A)(1),
and -2101(A)(1)4.
DISCUSSION
¶4 Father argues there was insufficient evidence to prove
abandonment, or that termination was in C.’s best interests. He also argues
his due process rights were violated because his parental rights were
terminated before the court received the results of a home-study5
completed in Mexico.6
¶5 A juvenile court may terminate parental rights if any one of
the statutory grounds for termination is proven by clear and convincing
evidence, Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153
P.3d 1074, 1078 (App. 2007) (citation omitted), and if the Department
demonstrates that termination is in the child’s best interests by a
preponderance of the evidence. Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d
at 606 (citation omitted). Because the juvenile court, as the trier of fact, “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings,” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002)
(citation omitted), we will accept the court’s findings of fact unless no
reasonable evidence supports those findings, and will only disturb its
determination if it is clearly erroneous. Id. (citation omitted). A
determination is clearly erroneous if it is unsupported by “any relevant
evidence from which a reasonable mind might draw a conclusion.” Mealey
v. Arndt, 206 Ariz. 218, 221, ¶ 12, 76 P.3d 892, 895 (App. 2003) (citation
omitted).
4 We cite the current version of the statute unless otherwise noted.
5 Although the parties refer to the home-study as an Interstate Compact on
the Placement of Children (“ICPC”) home-study, Mexico is not a party to
the Compact. See A.R.S. § 8-548, art. 9.
6 Father does not challenge the dependency determination, and has thus
waived that claim on appeal. State v. Carver, 160 Ariz. 167, 175, 771 P.2d
1382, 1390 (1989) (failure to argue claim constitutes waiver and
abandonment of that claim) (citations omitted).
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CARLOS O. v. DCS, C.B.
Decision of the Court
I. Abandonment
¶6 The juvenile court terminated Father’s rights based on
abandonment. See A.R.S. § 8-533(B)(1). Abandonment is:
the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment 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). Abandonment is not measured by a parent’s subjective
intent, but by the parent’s conduct. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). “What constitutes reasonable
support, regular contact, and normal supervision varies from case to case,”
id. at 250, ¶ 20, 995 P.2d at 686 (internal quotes and citations omitted), and
therefore “questions of abandonment . . . are questions of fact for resolution
by the trial court,” Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4, 804
P.2d 730, 733 (1990) (citation omitted). When a father cannot exercise
traditional methods of bonding with his child due to the circumstances, “he
must act persistently to establish the relationship however possible and
must vigorously assert his legal rights to the extent necessary.” Michael J.,
196 Ariz. at 250, ¶ 22, 995 P.2d at 686 (internal quotes and citation omitted).
¶7 Although Father argues the evidence was insufficient to
support a finding that he abandoned C., the record undermines his
argument. At the time C. was taken into custody, Father had been deported
from the U.S., was residing in Mexico, and had not been consistently
involved in C.’s life for several years.7 He did not attempt to contact C., did
not send cards, gifts, or letters, or attempt to telephone the child, nor did he
provide any support. Mother notified Father when C. was taken into care,
but he made no attempt to contact the Department until the week before
the severance trial, when he mailed in a one-page letter addressed to C. and
written in Spanish, with three pictures.
¶8 The record reflects that Father participated in services in 2015
with DIF, the Mexican counterpart of the Department of Child Services.
Although living in Mexico made it difficult for Father to maintain a parent-
7 Father last saw C. in 2009.
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CARLOS O. v. DCS, C.B.
Decision of the Court
child relationship with C., he failed to act to assert his legal rights or
establish a parent-child relationship by waiting nearly three years after
learning of C.’s removal to attempt to make contact or participate in
services. Consequently, the evidence supports the juvenile court’s finding
that Father abandoned C.
II. Best Interests of the Child
¶9 Father also argues the evidence does not support the finding
that termination was in C.’s best interests, given that his relationship with
C. could have been “further nurtured and developed” with the assistance
of the Department’s services. We disagree.
¶10 The Department may show that termination is in a child’s best
interests by demonstrating that the child “derive[s] an affirmative benefit
from termination or incur[s] a detriment by continuing in the relationship.”
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945
(App. 2004). Evidence that the child is adoptable and the existing
placement is meeting the child’s needs is sufficient to meet this burden. See
Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003,
1008 (App. 2008).
¶11 The caseworker testified that termination was in C.’s best
interests because C. was adoptable, and had been placed with his adult
brother and sister-in-law, who had already adopted C.’s sister, and wanted
to adopt him. The caseworker also testified that it would be detrimental to
move the child from his three-year placement, given that he was attached
to his caregivers, has special needs, was a victim of abuse, and needed a
stable and secure placement, which he was receiving and which Father
could not provide. As a result, the evidence supports the finding that
termination was in C.’s best interests.
III. Due Process
¶12 Father also argues that his due process right to a
“fundamentally fair proceeding” was violated because his parental rights
were terminated while the results of the international home-study were
pending.8 We disagree.
8 Before the dependency and severance hearing, Father requested an
international home-study which was intended to provide the Department
with more information about Father. The court ordered the home study be
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CARLOS O. v. DCS, C.B.
Decision of the Court
¶13 Absent fundamental, prejudicial error, Father waived the
claim by failing to raise his due process argument in the juvenile court. See
Paloma Inv. Ltd. P’ship v. Jenkins, 194 Ariz. 133, 137, ¶ 17, 978 P.2d 110, 114
(App. 1998) (“New arguments may not be raised for the first time on
appeal.”) (citation omitted); see also K.B. v. State Farm Fire & Cas. Co., 189
Ariz. 263, 268, 941 P.2d 1288, 1293 (App. 1997) (waiver principle applies to
constitutional issues). However, “[b]ecause of the constitutional
ramifications inherent in termination proceedings,” we will review Father’s
claim for fundamental error. See Monica C. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 89, 94, ¶ 23, 118 P.3d 37, 42 (App. 2005) (applying “doctrine of
fundamental error” to constitutional claim not raised in juvenile court).
¶14 Although Father asserts he was deprived fundamentally fair
procedures, he has failed to provide any legal authority holding that
termination of parental rights before the results of a home-study have been
received violates a rule of procedure or a parent’s constitutional rights. The
mere fact that Father requested a home-study prior to the severance hearing
did not require the court to wait for the study to be completed and
delivered, especially given that substantially more than six months had
elapsed before Father made any attempt to contact the Department or child.
Moreover, Father has failed to demonstrate prejudice on this record.
Consequently, we find no fundamental, prejudicial error warranting
reversal. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607
(2005) (defendant bears burden of establishing fundamental error).
¶15 Finally, Father also contends that “severance was premature”
because he was voluntarily participating in services with DIF. Because the
Department was seeking to terminate his rights for abandonment, the
Department did not need to provide any reunification services. See Bobby
G., 219 Ariz. at 510, ¶ 11, 200 P.3d at 1007; Toni W. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 61, 66, ¶ 15, 993 P.2d 462, 467 (App. 1999). And the evidence
demonstrates that Father’s last-minute efforts to attempt to establish a
relationship, while commendable, were too little, too late. Consequently,
the termination action some three years after C. was removed from
Mother’s care was not premature.
conducted, but the Department had not received the final results from DIF
before the termination order.
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CARLOS O. v. DCS, C.B.
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm the termination of
Father’s parental rights to C.
:ama
7