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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SAMUEL P., Appellant,
v.
MINDY D., A.P., Appellees.
No. 1 CA-JV 22-0163
FILED 12-01-2022
Appeal from the Superior Court in Maricopa County
No. JS21164
The Honorable David O. Cunanan, Judge (Retired)
AFFIRMED
APPEARANCES
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Mindy D., Avondale
Appellee
SAMUEL P. v. MINDY D.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Samuel P. (“Father”) appeals the superior court’s order
terminating his parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY1
¶2 Father and Mindy D. (“Mother”) are the parents of A.P., born
in 2014. When A.P. was two years old, Mother abruptly left the relationship
with Father because, according to her, he was emotionally and physically
abusive and abusing drugs and alcohol. She obtained a protective order
against Father that year, and thereafter, the parents hardly communicated
at all.2 Mother and child initially moved in with maternal relatives and
eventually, into their own home.
¶3 After the breakup, Mother remained in phone contact with
A.P.’s paternal grandmother and facilitated regular visits between paternal
grandparents and A.P. for the next three years. Father was sometimes
present at these visits but had no other contact with A.P. Father sent the
child no cards, gifts, or letters and made only a few child support payments
over several years.
¶4 In 2019, Father was in and out of jail for various drug charges.
That September, Mother remarried. Two months later, she ended visits
between A.P. and paternal grandparents after they mentioned pursuing
visitation through court. Once those visits ended, Father had no further
contact with A.P.
1“We review an order terminating a parent’s relationship with his or her
child . . . in the light most favorable to sustaining the superior court’s
ruling.” Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
2The evidence does not suggest that A.P. was included in the protective
order.
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SAMUEL P. v. MINDY D.
Decision of the Court
¶5 Father was arrested in 2020 for drug charges and later
sentenced to four years imprisonment for a separate armed robbery
conviction.
¶6 In December 2021, Mother petitioned to terminate Father’s
parental rights, as relevant here, based on his lengthy felony incarceration
and abandonment. See A.R.S. § 8-533(B)(1), (B)(4). Afterwards, Father sent
A.P. a few postcards. After a trial, the superior court terminated Father’s
parental rights, and he appealed. This court has jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 601(a).
DISCUSSION
¶7 Father argues no reasonable evidence supports the superior
court’s determination that he abandoned A.P. In the alternative, he argues
that Mother prevented contact between him and the child. Father also
argues that termination was not in A.P.’s best interests.
¶8 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248-49, ¶¶ 11-12 (2000). Termination of a parental relationship may be
warranted where the state proves one statutory ground under A.R.S.
§ 8-533 by clear and convincing evidence. Id. “Clear and convincing” means
the grounds for termination are “highly probable or reasonably certain.”
Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005).
¶9 This court “will accept the [superior] court’s findings of fact
unless no reasonable evidence supports those findings and will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). This court does not reweigh the
evidence, but “look[s] only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶10 A parent may forfeit his parental rights if he abandons his
child. A.R.S. § 8-533(B)(1). Abandonment occurs when the parent fails to
“provide reasonable support and to maintain regular contact with the child,
including providing normal supervision.” A.R.S. § 8-531(1). Abandonment
is measured by a parent’s conduct, not his subjective intent. Michael J., 196
Ariz. at 249-50, ¶ 18. The court must consider whether “[the] parent has
provided reasonable support, maintained regular contact, made more than
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SAMUEL P. v. MINDY D.
Decision of the Court
minimal efforts to support and communicate with the child, and
maintained a normal parent-child relationship.” Id.
¶11 Here, the superior court found that Father failed to maintain
a normal parent-child relationship with A.P. for almost four years. Its
specific findings were that:
Father’s relationship [with A.P.] consisted of occasional
supervised visits when the Child was visiting with the
Paternal Grandmother during Grandmother’s scheduled
visitations . . . . Father never had custody of the child
overnight, nor did he seek to arrange his own visitation
outside of paternal grandmother. The paternal grandmother,
as opposed to father, was the main factor in maintaining
father’s relationship with the child. After Paternal
Grandmother’s visits ended in 2019, Father did not take
appropriate steps to try to maintain and nurture the
parent-child relationship. Father testified that he placed the
responsibility of his visitation with his child on Mother.
Father testified that he did not seek a remedy through the
courts. Father has not had contact with his daughter since
2019.
Reasonable evidence supports the courts findings.
¶12 Father contends he often visited A.P. between 2016 and 2019,
but Mother testified he did not. Based on A.P.’s statements to her, Mother
testified that Father missed most of A.P.’s visits with her grandparents, and
when Father was there, “he would be in his room asleep or talking on the
phone.” Moreover, sometimes Father would tell A.P. he was coming for a
visit, but he did not show up.
¶13 After hearing this evidence, the superior court concluded that
Father did not provide reasonable support for or normal supervision to
A.P., and did not maintain regular contact with the child. This court will
not reweigh that determination on appeal. See Jesus M., 203 Ariz. at 282,
¶ 12 (“The resolution of such conflicts in the evidence is uniquely the
province of the juvenile court as the trier of fact; we do not re-weigh the
evidence on review.”).
¶14 Father argues alternatively that his abandonment was
justified because Mother prevented regular contact between him and A.P.
by not sharing her address and phone number with him. But the record
shows that neither parent initiated much conversation with the other after
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SAMUEL P. v. MINDY D.
Decision of the Court
their breakup, even after the protective order presumably expired in 2017.
Moreover, Father did not seek out parenting time through the courts, or
additional time through Mother, because he felt the arrangement with
paternal grandparents “was working.” And although Mother never shared
her address with Father, he did not ask her for it. Nor did he ever attempt
to contact Mother through his parents. Father has not shown that Mother
restricted Father’s ability to interact with A.P. See Calvin B., 232 Ariz. at 297,
¶¶ 23–25 (holding father did not abandon son because mother prevented
their contact despite father’s consistent efforts).3
¶15 Father also argues that termination was not in A.P.’s best
interests. In addition to finding a statutory ground for termination, the
superior court must also determine what is in the best interests of the child
by a preponderance of the evidence. Kent K., 210 Ariz. at 284, ¶ 22. Once the
court finds a parent unfit under at least one statutory ground for
termination, “the interests of the parent and child diverge,” and the court
proceeds to balance the unfit parent’s “interest in the care and custody of
his or her child . . . against the independent and often adverse interests of
the child in a safe and stable home life.” Id. at 286, ¶ 35. “[A] determination
of the child’s best interest must include a finding as to how the child would
benefit from a severance or be harmed by the continuation of the
relationship.” Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
Courts “must consider the totality of the circumstances existing at the time
of the severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148,
¶ 1 (2018).
¶16 The court may find that a child would benefit from
termination if there is an adoption plan or if the child is adoptable, Id. at
150-51, ¶¶ 13-14, or if the child “would benefit psychologically from the
stability an adoption would provide.” Maricopa Cnty. Juv. Action No.
JS-501904, 180 Ariz. 348, 352 (App. 1994).
¶17 Here, Father maintains that termination is not in A.P.’s best
interests because it will deprive her of a relationship with him and his
family. Father’s assertion, even if true, fails to establish that no reasonable
evidence supports the court’s order. Indeed, the court found that
termination would benefit A.P. because “it would allow [her] to address the
feelings of abandonment she suffers from her father’s neglect.” The court
3 Because sufficient evidence supports the abandonment ground for
termination, we need not consider Father’s arguments regarding the
length-of-felony-sentence ground. See Mary Lou C., 207 Ariz. at 49, ¶ 14.
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SAMUEL P. v. MINDY D.
Decision of the Court
also found that A.P. “is able to articulate how being free to be adopted by
her stepfather would allow her to put the pain and hurt she suffered due to
her father’s neglect behind her and move forward with the father figure she
feels has provided the parental relationship she needs.” Finally, the court
found that Mother and stepfather were meeting A.P.’s needs and that
stepfather wished to adopt her. Reasonable evidence supports these
findings.
¶18 Father claims that Mother needed to provide expert testimony
to evaluate the degree to which Father’s abandonment affected A.P.
emotionally, but provides no controlling authority to support his position.
And Mother and stepfather’s testimony about A.P.’s feelings is sufficient to
support a best-interests determination. See In re John M., 201 Ariz. 424, ¶ 7
(App. 2001) (This court will not disturb the superior court’s order unless
“there is a complete absence of probative facts to support the judgment or
. . . the judgment is contrary to any substantial evidence.”). On this record,
Father has shown no error.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
6