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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO J.H.
No. 1 CA-JV 22-0234
FILED 3-28-2023
Appeal from the Superior Court in Maricopa County
No. JD15644
The Honorable Gregory Como, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Bailey Leo
Counsel for Appellee Department of Child Safety
Rothman Law PLLC, Phoenix
By Kristen A. Rothman
Counsel for Appellee J.H.
IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.
H O W E, Judge:
¶1 Tatiana G. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to J.H. on the ground of abandonment. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother has several children with various fathers. The
children have been involved in dependency proceedings with the
Department of Child Safety beginning in 2007. Since then, the Department
has received reports containing allegations that the children lived in
unsanitary conditions, Mother had been violent toward the children, and
she had exposed them to her abusive partners. On one occasion, Mother
had pushed one of her daughters, T.L., down the stairs, chipping the child’s
tooth.
¶3 In 2011, Mother had J.H. with Jason H. (“Father”); they were
unmarried. In 2016, the Department removed J.H. and his half-sister from
Mother’s care after she had left them with his half-sister’s paternal
grandparents because she “struggl[ed] with mental issues” and “needed a
break.” The Department petitioned for the dependency of J.H. and his
half-sister based on neglect; the Department later separately petitioned for
the dependency of his other siblings based on abuse and neglect. The court
found J.H. dependent as to Mother and Father and adopted a family
reunification case plan. J.H. then lived with his half-sister’s paternal
grandparents, who expressed interest in adopting him.
¶4 Meanwhile, the Department offered Mother reunification and
mental-health services, but she failed to participate or maintain contact with
the Department. Mother did, however, undergo a psychiatric evaluation,
which showed that she had bipolar disorder, intermittent explosive
disorder, and alcohol-use disorder. Mother admitted that she did not seek
to treat her mental illness through therapy or medication.
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IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
¶5 In late 2017, Father moved to have J.H. returned to his care.
The court granted the motion, finding that he completed reunification
services and demonstrated that he could safely parent J.H., while Mother
had not. The court entered temporary orders, also applicable in a family
court matter, awarding Father sole legal decision-making authority and
allowing Mother only supervised parenting time. The dependency case was
dismissed in April 2018.
¶6 J.H. then lived with Father and Chrystle H., his paternal
grandmother (“Grandmother”). Soon after the dependency was dismissed,
Grandmother scheduled a two-hour visit between Mother and J.H. Mother
did not show up. They rescheduled, and Mother stayed for only 90 minutes.
Grandmother then attempted to schedule weekly visits, but Mother did not
consistently respond to her calls. Eventually, Mother had another
supervised visit with J.H. in May 2018. After only 30 minutes, Mother stated
that she was “ready to go.” No other in-person visits took place.
¶7 In 2021, Father died, and J.H. continued to live with
Grandmother. J.H. did well in Grandmother’s care, performing well in
school and receiving necessary medical attention. Grandmother petitioned
for guardianship of J.H., and Mother objected. In January 2022, the
Department petitioned for J.H.’s dependency based on abandonment and
mental illness. The court ordered visitation with Mother at J.H.’s discretion.
At that point, Mother had not had contact with J.H. since May 2018. J.H. did
not wish to have contact with Mother because he was uncomfortable with
her and feared returning to her care. But the Department encouraged
Mother to write him letters.
¶8 The court again found J.H. dependent as to Mother. Between
February 2022 and April 2022, Mother had two visits with J.H., which were
virtual at J.H.’s request. Around this time, Mother and T.L. got into an
argument and Mother again assaulted T.L., who was hospitalized with
injuries to her face, noticeable bite marks and bruises on her arms, and road
rash on her arm and lower body. J.H. declined additional visits with
Mother.
¶9 The court held a dependency disposition hearing and
changed the case plan to termination and adoption. The Department later
moved to terminate Mother’s rights to J.H. alleging abandonment. At the
termination adjudication, Mother testified that she did not financially
support J.H. between the dismissal of the previous dependency and the
petition for the second one. She admitted that she “wasn’t able to” send him
cards, gifts, or letters because she did not know where J.H., Father, and
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IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
Grandmother lived. When asked why she did not have more visits with
J.H., she testified that she tried calling Grandmother’s house “[h]ere and
there,” but no one picked up. She added that when the first dependency
case was dismissed, she had tried enforcing her parenting time rights but
did not have Father’s address. Mother also testified that she participated in
services in a separate dependency case and was willing to participate in
services in J.H.’s case.
¶10 Grandmother testified that after the first dependency case
was dismissed, she initiated visitation between Mother and J.H. She tried
to schedule weekly visits, but Mother did not always respond. Two
in-person visits took place in April and May 2018. She testified that Mother
never reached out to schedule more visits after May 2018.
¶11 The Department case manager testified that it had scheduled
a bonding assessment to help Mother and J.H. mend their relationship. J.H.
was present for his portion of the assessment, and Mother rescheduled.
Mother did not attend the rescheduled assessment. The case manager
testified that after both virtual visits with Mother in 2022, J.H. showed
uncharacteristic “outbursts of frustration.” She added that learning of
Mother’s assault on T.L. did not cause J.H. to fear Mother but confirmed the
“fear that he had previously.”
¶12 The court terminated Mother’s parental rights on the
abandonment ground. The court found Grandmother’s testimony more
credible than Mother’s on the issue of Mother’s participation, or lack
thereof, in visits. The court also found termination in J.H.’s best interests.
Mother timely appeals.
DISCUSSION
¶13 Mother argues that the juvenile court erred in terminating her
rights to J.H. based on abandonment.1 A juvenile court’s termination
determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). Because the juvenile 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), we will affirm a termination
1 Mother does not challenge the court’s best interests determination;
thus, we assume that she concedes the finding as accurate. See Britz v.
Kinsvater, 87 Ariz. 385, 388 (1960). The appellate record also supports the
best interests determination.
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IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
decision unless no reasonable evidence supports it, Xavier R. v. Joseph R.,
230 Ariz. 96, 100 ¶ 11 (App. 2012).
¶14 To terminate parental rights, the juvenile court must find the
existence of at least one statutory ground under A.R.S. § 8–533 by clear and
convincing evidence and must find that termination is in the child’s best
interests by a preponderance of the evidence. A.R.S. § 8–533(B); Jennifer S.
v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016). One such ground
is abandonment, A.R.S. § 8–533(B)(1), which 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. 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).
¶15 A finding of abandonment requires the court to consider
whether a parent has (1) provided reasonable support to the child,
(2) maintained regular contact with him, and (3) provided normal
supervision. Kenneth B. v. Tina B., 226 Ariz. 33, 37 ¶ 18 (App. 2010). A
parent’s conduct determines abandonment, not a parent’s subjective intent.
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 18 (2000). Such
conduct includes a parent asserting “legal rights at the first and every
opportunity.” Id. at 251 ¶ 25. Even when a parent cannot exercise traditional
methods to bond with the child, that parent “must act persistently to
establish the relationship however possible and must vigorously assert
[her] legal rights to the extent necessary.” Id. at 250 ¶ 22 (quoting In re Pima
Cnty. Juv. Sev. Action No. S–114487, 179 Ariz. 86, 97 (1994)).
¶16 Here, reasonable evidence supports terminating Mother’s
parental rights based on abandonment. Mother did not have contact with
J.H. from May 2018 through January 2022, when the Department again
petitioned for his dependency. This is far longer than the six-month
statutory prima facie requirement. Right after the first dependency case was
dismissed, Grandmother had provided Mother opportunities to visit J.H.
Mother had only two in-person visits with him and failed to schedule more.
¶17 During this time, and after the commencement of the second
dependency case, Mother never financially supported J.H. Nor did she send
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IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
him cards, gifts, or letters. See Kenneth B., 226 Ariz. at 37 ¶ 20. After this
second dependency action commenced, Mother had only two virtual visits
with him. J.H. agreed to participate in a bonding assessment with Mother,
which was to help mend their relationship. But she canceled the first
appointment and did not attend the second. Her lack of conduct to parent
and establish a relationship with J.H. is reflected in the record.
¶18 Mother cites Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013),
and argues that Father ignored her efforts to contact J.H. Unlike the father
in Calvin B., Mother here did not show that Father prevented her from
contacting J.H. or that she “actively sought more involvement” with him
than Father would allow. Cf. id. at 297 ¶¶ 22–23 (despite mother’s attempts
to prevent father from seeing son, reversal of abandonment finding was
warranted because father “continued to seek visits,” managing about 10
visits a year). Although the court awarded Father sole legal decision-
making authority, it awarded Mother parenting time that she failed to
exercise. The record supports a finding that beginning April 2018,
Grandmother provided Mother opportunities for weekly visitation with
J.H. Mother, however, did not seek additional visits beyond the two, with
the second in May 2018. She did not provide evidence to show that Father
prevented her from seeing J.H. or having a normal parental relationship
with him.
¶19 Mother notes that she tried to enforce her parenting time
orders after the first dependency was dismissed but was “rebuffed”
because she did not have Father’s address. But his address was listed in
court documents from the first dependency, and Mother admitted that she
did not seek assistance from the family court to obtain the information.
Moreover, in a February 2022 report, the Department noted that since the
end of the first dependency, Mother had not made “any effort through the
family court process to modify her parenting time or provide for [J.H.’s]
needs.” Even if Mother’s contention about her attempts is true, she could
have contacted Grandmother to schedule visitation with J.H. Grandmother
had testified about her attempts to help establish visitation. And the court
found Grandmother’s testimony more credible than Mother’s as it related
to Mother’s “lack of interest in the visits.” See Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280 ¶ 4, 282 ¶ 12 (App. 2002) (we defer to the juvenile
court’s credibility findings to resolve conflicts in evidence). The record does
not show that Mother vigorously asserted her legal rights.
¶20 Mother claims that the Department “poisoned” her effort to
reconcile with J.H. by telling him about her assault of T.L. The Department
argues that the Department did not tell J.H. about the assault. Regardless
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IN RE TERM OF PARENTAL RIGHTS AS TO J.H.
Decision of the Court
who informed J.H., Mother’s own conduct—her lack of contact for more
than three years, failure to participate in a bonding assessment to mend
their relationship, and lack of financial and emotional support—still
supports the court’s finding that she abandoned J.H. Even if the
Department had informed J.H. of Mother’s most recent assault of T.L., such
conduct would not preclude termination of Mother’s parental rights. See
Michael J., 196 Ariz. at 251 ¶ 25 (stating that the Department owes no duty
to a parent to ensure her parental rights are not severed). Moreover, J.H.
had already been uncomfortable with Mother and feared returning to her
care, which is why visitation had been at his discretion. The case manager
even testified that learning about the assault only confirmed the “fear that
he had previously.”
¶21 Mother argues last that she participated in services after the
Department petitioned for dependency of her other children and would
make a similar effort in J.H.’s case. But proving abandonment to terminate
parental rights does not require weighing the services in which the parent
participates. Cf. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 510 ¶ 11
(App. 2008) (stating that a parent need not “be provided reunification
services before the court may terminate the parent’s rights on the ground
of abandonment”). Further, the court looks to a parent’s conduct, not
subjective intent, in determining whether a parent had abandoned her
child. Michael J., 196 Ariz. at 249 ¶ 18.
¶22 Because reasonable evidence supports the juvenile court’s
termination decision, the court did not err.
CONCLUSION
¶23 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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