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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MATTHEW B., AMANDA R., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, J.B., Appellees.
No. 1 CA-JV 20-0415
FILED 7-27-2021
Appeal from the Superior Court in Maricopa County
No. JD 23403
The Honorable Lori H. Bustamante, Judge
AFFIRMED
COUNSEL
John L. Popilek, Scottsdale
Counsel for Appellant, Father
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant, Mother
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee, Department of Child Safety
MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Chief Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
Amanda R. (“Mother”) and Matthew B. (“Father”) appeal the
superior court’s order terminating their parental rights to their son, Peter,
born in June 2019.1 They argue that the trial court erred in finding the
statutory grounds for severance were met and that severance was in Peter’s
best interests. Because reasonable evidence supports the court’s decision,
we affirm.
BACKGROUND
Mother and Father both have a history of drug abuse. In a
prior severance case, the Department of Child Safety (“DCS”) presented
evidence that Mother’s older son was born exposed to amphetamine.
Ultimately, Mother’s parental rights to her older son were terminated
because of her failure to overcome substance abuse issues, among other
things. Both Mother and Father also have a significant felony history. In late
2017, Mother was sentenced to 11 months in prison after violating
probation. Mother was released on community supervision but soon
absconded.
In June 2019, Phoenix police were assisting DCS’s
investigation into the disappearance of Mother’s nephew, a child. As part
of that process, authorities investigated the whole family, suspecting the
nephew was being hidden from DCS. After pulling Mother over, police
discovered the boy in Mother’s care. When found, the nephew’s teeth were
rotted to the gum line, he was unable to speak and appeared to be in pain.
After being taken into care, he had to have 14 of the 20 teeth remaining in
his mouth removed. He also tested positive for methamphetamine. An
officer interviewed Mother and later testified that Mother claimed to have
been caring for her nephew since her release from prison. Mother later
denied saying this, claiming she only picked the boy up that day. Although
1 We use a pseudonym throughout for the child to protect his identity.
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
Mother had absconded, she was not arrested that day because she was
pregnant with Peter.
Mother gave birth to Peter at home, and both were taken to
the hospital. The next day, Mother tested positive for amphetamine and
Peter tested positive for methamphetamine. At the time, there was an
outstanding warrant for Mother’s arrest, and she left Peter at the hospital
to avoid being arrested. DCS attempted to contact Mother for several
weeks, but the attempts were unsuccessful. Eventually, DCS contacted
Mother and arranged for a meeting. Mother did not show up for the
meeting, however, and when the caseworker called Mother to see why she
was not there, Mother hung up on the caseworker and then refused to
answer subsequent calls.
After Peter’s birth, Father also left the hospital and never
returned for the baby. A DCS caseworker attempted to interview Father,
but he refused to meet without Peter’s maternal grandmother
(“Grandmother”) present. During the interview, Grandmother repeatedly
interrupted and prevented Father from answering questions. The
caseworker terminated the interview because of Grandmother’s
interference. Father became upset and left. Ultimately, DCS took Peter into
custody, placed him in a licensed foster care home, and filed a dependency
petition.
At a preliminary protective hearing in July 2019, Father
refused to meet with his attorney without Grandmother present and left
before the hearing. Because DCS was unable to contact either parent, DCS
served them by publication. The court adjudicated Peter dependent in
October 2019 and adopted a case plan of family reunification.
Also in October 2019, Phoenix Police located Mother and
Father in their car. It appeared they were living in the vehicle. Mother was
arrested on multiple outstanding warrants, and in a subsequent search of
the vehicle, officers discovered a sawed-off rifle. Mother incurred new
charges for resisting arrest, aggravated assault, and possession of a firearm
as a prohibited possessor. Father was also arrested for possession of a
prohibited weapon and possession of a firearm as a prohibited possessor.
In January 2020, Father appeared at a dependency hearing
and informed the court that Mother was in custody. The DCS case manager
had attempted to locate Mother but had been unsuccessful, apparently
because he had searched for her using her maiden name. In February 2020,
the DCS case manager finally located Mother and set up a meeting at the
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
Maricopa County jail. Mother told the case manager that she was being
released the following month. She asked how Peter was doing, but did not
ask for visitation at that time. The case manager told Mother to contact him
when she was released so services could be set up and gave her his business
card.
However, Mother was not released in March. When she was
released from the Maricopa County jail, she was transferred to the Pinal
County jail because she had absconded while on probation in that county.
Mother claims that she did not know about the Pinal County hold when she
met with the DCS case manager and was unable to contact him because his
business card was confiscated during the transfer. When Mother did not
call in March, the case manager called the jail, which erroneously informed
him that Mother had been released on bond. Mother did not contact DCS
until May or June 2020.
Meanwhile, Father failed to engage in services or participate
in visitation. In May 2020, police arrested Father on a bench warrant, and
found heroin and Percocet in his possession. Shortly after, Father pleaded
guilty to misconduct involving weapons stemming from the October 2019
incident, and he was sentenced to five years in prison.
In June 2020, after the superior court changed the case plan to
severance and adoption, DCS moved to terminate both Mother’s and
Father’s parental rights. The same month, Mother was released from jail to
a halfway house in Casa Grande and contacted the DCS case manager. At
the halfway house, she participated in substance abuse services, counseling,
and drug testing. The DCS case manager put in a referral for supervised
visits and a parent aide. Mother eventually moved out of the halfway house
to a pay-by-week motel, and then to an apartment. Mother also obtained
employment. At the time of trial, Mother was participating in services
provided by the halfway house and was doing well with ongoing
counseling. Mother had also stayed in consistent contact with DCS since her
release.
In December 2020, the superior court held a severance trial.
The DCS case manager testified that Mother had made progress and had
demonstrated almost six months of documented sobriety. However, he
opined that Mother was not in a position to safely parent Peter. The case
manager pointed out that Mother had only demonstrated sobriety in a
controlled environment, that she had lived in three different places since
her release from jail, and that her nephew was found in poor condition
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
when discovered in her care. He also testified that Peter was “thriving” in
his foster home and that the foster family was willing to adopt him.
After considering the evidence, the court terminated Mother’s
and Father’s parental rights. The court found termination was warranted
under the fifteen months’ out-of-home placement ground as to Mother
(A.R.S. § 8-533(B)(8)(c)), length of felony sentence ground as to Father
(A.R.S. § 8-533(B)(4)), and abandonment ground as to both parents (A.R.S.
§ 8-533(B)(1)). The court also found termination was in Peter’s best interests.
Mother and Father timely appealed.
DISCUSSION
We view the evidence and reasonable inferences therefrom in
the light most favorable to sustaining the superior court’s termination
order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
As the trier of fact, the superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” Ariz. Dep’t of Econ Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4
(App. 2004). This court will not, therefore, reweigh the evidence. Jordan C.,
223 Ariz. at 93, ¶ 18. We will affirm a termination order supported by
reasonable evidence. Id.
“Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). But even fundamental rights are not absolute. Id. To
terminate a parent’s parental rights the superior court must find at least one
statutory ground listed in A.R.S. § 8-533 by clear and convincing evidence,
A.R.S. § 8-537(B), and find by a preponderance of the evidence that
termination is in the child’s best interests. Kent K., 210 Ariz. at 288, ¶ 41.
I. Abandonment Grounds
Mother and Father both argue that the trial court erred by
finding they had abandoned Peter.2 The superior court may terminate a
2 Because sufficient evidence in the record supports termination based
on abandonment, we need not address Mother’s contention as to the fifteen
months out-of-home placement ground, or Father’s contention as to length
of felony sentence ground. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 3 (App. 2002) (if evidence supports termination on any one
statutory ground, this court need not consider challenges to the other
grounds).
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
parent’s rights if it finds by clear and convincing evidence that a parent has
abandoned his child. A.R.S. § 8-533(B)(1). Abandonment, as defined by
statute, “means 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.”
A.R.S. § 8-531(1). “[A]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249–50, ¶ 18 (2000). “What constitutes reasonable support,
regular contact, and normal supervision varies from case to case.” Pima
Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 96 (1994).
Mother argues that she did not abandon her child. She claims
she made several attempts to contact DCS shortly after her arrest in October
2019, but she could not reach them because the case manager would not
accept a collect call from the jail. She contends that Grandmother spoke
with the DCS case manager on her behalf. Mother claims she was the one
to initiate contact in February 2020. Mother also testified that she tried to
call the DCS case manager when she was unexpectedly transferred instead
of being released from jail but had lost the case manager’s contact
information in the move. She claims that Grandmother again made contact
with DCS on her behalf. Mother also points out that she had maintained
consistent contact with DCS since her release in June 2020, after Peter had
already been in DCS’s custody for a year.
Mother’s testimony notwithstanding, the superior court
found that she had done nothing to establish a relationship with Peter for
nearly a year, and reasonable evidence supports that conclusion. It is
undisputed that Mother left Peter at the hospital in June 2019 and made no
effort to contact DCS for the next several months. The DCS case manager
testified that (contrary to Mother’s assertions) he did not receive any calls
from Mother before February 2020, and he asserted that he was the one who
initiated contact. He also testified that DCS did not receive any calls or
emails from Mother after the February 2020 meeting until the end of May
or early June, when Peter was about a year old. See A.R.S. § 8-531(1)
(“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.”). Although Mother remained in contact with DCS after
she was released from jail in June 2020, this progress came only after DCS
had already moved to terminate Mother’s parental rights. See supra ¶ 11; see
also Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 8 (1990) (“[A]
prima facie case of abandonment cannot automatically be considered
rebutted merely by post-petition attempts to reestablish a parental
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
relationship”). Thus, we affirm the superior court’s abandonment finding
regarding Mother.
In a footnote in his opening brief, Father also argues the court
erred by finding he abandoned his child. Father asserts that DCS never
contacted him while he was incarcerated. He also notes that he had
requested visitation in May 2020, and that the trial court had asked DCS to
look into the matter, but DCS did not act on the request.
“The burden to act as a parent rests with the parent, who
should assert his legal rights at the first and every opportunity.” See Michael
J., 196 Ariz. at 251, ¶ 25. Father admits he has had no contact with Peter
since his birth. It is undisputed that Father knew of the dependency but
chose not to participate in court proceedings or take advantage of services
for several months. Father made no effort to establish contact with Peter
until May 2020, when Peter was almost a year old. Reasonable evidence
supports the superior court’s finding of abandonment regarding Father.
II. Best Interests
Severance is in a child’s best interests if the child would
“derive an affirmative benefit from termination or incur a detriment by
continuing in the relationship.” Oscar O., 209 Ariz. at 334, ¶ 6 (App. 2004).
“The ‘child’s interest in stability and security’ must be the court’s primary
concern.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12
(2018) (citation omitted). Mother argues that, because of the progress she
has made since her release from prison, the court erred in finding
termination was in Peter’s best interests. Father similarly argues that,
because Mother is approaching a time where she could parent the child,
and because Peter is young enough to forget his adoptive family, the court
erred in finding termination of his rights were in Peter’s best interests.
Father appears to be arguing that Mother could care for the child in his
place while he is incarcerated.
Reasonable evidence supports the trial court’s best interests
determination. To be sure, Mother made significant progress after her
release from jail. She successfully participated in services at the halfway
house, and at the time of trial was in her own apartment, and had found
employment. Mother also points out that her family members testified at
trial that they believed she was in a position to successfully parent. The trial
court acknowledged Mother’s progress but deemed it insufficient in light
of the totality of circumstances. As the superior court pointed out, Mother
had previously put her needs over Peter’s when she left him at the hospital
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MATTHEW B., AMANDA R. v. DCS, J.B.
Decision of the Court
to avoid arrest, and Mother was facing charges that could lead to further
incarceration. Also, the court expressed doubts about whether Mother
could provide for Peter’s safety, given the condition her nephew was in
when found in her care. Moreover, the DCS case manager testified that
Peter is in a placement that is meeting all of his needs and is willing to adopt
him. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 12 (2016) (“When a
current placement meets the child’s needs and the child’s prospective
adoption is otherwise legally possible and likely, a juvenile court may find
that termination of parental rights, so as to permit adoption, is in the child’s
best interests.”).
Because the trial court’s best interests finding as to Mother is
based on reasonable evidence, we affirm. Further, because Father’s
arguments were premised on wife’s availability to safely parent in his place
while he is incarcerated, we also affirm the court’s finding as to Father.
CONCLUSION
For the foregoing reasons, we affirm the termination of the
parental relationship regarding both Mother and Father.
AMY M. WOOD • Clerk of the Court
FILED: AA
8