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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANTONIO R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.V., Appellees.
No. 1 CA-JV 21-0043
FILED 8-3-2021
Appeal from the Juvenile Court in Maricopa County
No. JD35764
The Honorable Todd F. Lang, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Arizona Department of Child Safety
ANTONIO R. v. DCS, A.V.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Antonio R. (“Father”) appeals the juvenile court’s decision to
terminate his parental rights to A.V. Mother is not a party to this appeal.
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In February 2020, the Department of Child Safety (“DCS”)
took temporary custody of A.V. based on previous DCS investigations
involving Mother’s four other children. DCS’s dependency petition for A.V.
alleged Father’s inability to parent due to substance abuse, domestic
violence, and abandonment.
¶3 During the dependency proceedings, the superior court
sentenced Father to a six-month term of incarceration after a domestic
violence dispute with Mother. DCS moved to terminate Father’s parental
rights to A.V. in August 2020, on abandonment and chronic substance
abuse grounds.
¶4 Father contested the termination, and the juvenile court held
a hearing. Father admitted that he failed to attend any supervised visits
with A.V. And while he claimed he visited A.V. multiple times without
DCS supervision, he could not recall any details of those visits.
¶5 The case manager then testified about Father’s history of
substance abuse, his unwillingness to complete DCS referrals, and his
statement to the court that he did not want to reunify with A.V. The case
manager expressed concern that Father “hasn’t been building a relationship
with [A.V.],” and does not have a “normal relationship” with A.V.
¶6 The juvenile court terminated Father's parental rights on
abandonment and chronic substance abuse grounds. Father timely
appealed. We have jurisdiction under A.R.S. §§ 8-235(A) and 12-
120.21(A)(1).
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ANTONIO R. v. DCS, A.V.
Decision of the Court
DISCUSSION
¶7 We review the termination of parental rights for an abuse of
discretion. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). We will uphold the juvenile court’s findings of fact “if supported by
adequate evidence in the record.” Christy C. v. Ariz. Dep't of Econ. Sec., 214
Ariz. 445, 452, ¶ 19 (App. 2007) (citation omitted). “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.” Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002).
¶8 “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State
support its [statutory] allegations by at least clear and convincing
evidence.” Santosky v. Kramer, 455 U.S. 745, 747–48 (1982). “[S]uch a
standard adequately conveys to the factfinder the level of subjective
certainty about his factual conclusions necessary to satisfy due process.” Id.
at 769. On appeal, due process requires us to assess whether a reasonable
factfinder could conclude based on the record that DCS met its clear and
convincing evidentiary burden to sustain the termination of parental rights.
See id. at 747–48, 769.
¶9 Father challenges the court’s findings on both grounds and
the court’s denial of his request to supplement the record with evidence
related to the substance abuse allegation.
¶10 Parental rights may be terminated if a parent abandons their
child. A.R.S. § 8-533(B)(1). Abandonment is defined as “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 the parent has made only minimal efforts to support
and communicate with the child.” A.R.S. § 8-531(1). The failure of a parent
to maintain a “normal parental relationship” for six months is “prima facie
evidence of abandonment.” Id.
¶11 The juvenile court must consider each of the factors in A.R.S.
§ 8-531(1) and determine whether the parent has tried to establish or
strengthen the parent’s emotional connection with his child. Kenneth B. v.
Tina B., 226 Ariz. 33, 37, ¶¶ 18, 21 (App. 2010). We measure abandonment
based on conduct and not a parent’s subjective intent. See Michael J. v. Ariz.
Dep't Econ. Sec., 196 Ariz. 246, 249, ¶ 18 (2000). When circumstances prevent
the parent from “exercising traditional methods of bonding with his child,
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ANTONIO R. v. DCS, A.V.
Decision of the Court
he must act persistently to establish the relationship however possible and
must vigorously assert his legal rights to the extent necessary.” Id. at 250, ¶
22 (quoting Pima Cnty. Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994)).
¶12 The record supports the juvenile court’s finding that Father
abandoned A.V. by failing to maintain a normal parental relationship.
Father provided no financial support or basic necessities to A.V. Father also
failed to maintain even minimal contact with A.V. While he claimed he
visited A.V. many times before his incarceration, the court did not find this
testimony credible. And we will not invade the court’s credibility
determinations.
¶13 Father asks us to consider his efforts to virtually reconnect
with A.V. while incarcerated. But weighing his unsubstantiated testimony
against the evidence of his failure to maintain regular contact is the
province of the juvenile court. We will not reweigh this evidence on appeal.
See Jesus M., 203 Ariz. at 280, ¶ 4.
¶14 Father does not challenge the juvenile court’s best interests’
finding. We therefore do not address the issue further. See Michael J., 196
Ariz. at 249, ¶ 13. Because we affirm the juvenile court’s termination of
Father’s parental rights to A.V. on abandonment grounds, we need not
address Father’s arguments related to the chronic substance abuse ground.
Further, even assuming—though not deciding—that the juvenile court
abused its discretion by excluding evidence related to Father’s history of
substance abuse, such evidence is immaterial to our holding on the
abandonment ground.
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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