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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TONY J., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.J., Appellees.
No. 1 CA-JV 16-0531
FILED 4-27-2017
Appeal from the Superior Court in Maricopa County
No. JD31782
The Honorable Sally S. Duncan, Judge
AFFIRMED
COUNSEL
Law Office of Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
TONY J. v. DCS, A.J.
Decision of the Court
W I N T H R O P, Judge:
¶1 Tony J. (“Father”), the biological father of A.J. (“the child”),
appeals the juvenile court’s order terminating his parental rights to the
child on the grounds of abandonment and length-of-sentence.1 Father
challenges the statutory bases for severance found by the court. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 The child was born in January 2014. In June 2015, Father was
arrested and booked into custody for armed robbery, a class two felony,
and theft, a class three felony. He was convicted as charged and ordered to
serve concurrent sentences of 3 and 3.5 years’ imprisonment in the Arizona
Department of Corrections (“ADOC”).3 On December 28, 2015, Father was
transferred to the ADOC complex in Yuma.
¶3 Meanwhile, on December 7, 2015, the Department of Child
Safety (“DCS”) received a report that Mother had been arrested on drug
and child abuse charges after law enforcement officers found heroin and
drug paraphernalia in a hotel room where Mother, the child, and Mother’s
“significant other” were residing. The officers also found a “meth pipe”
and heroin in Mother’s bag, and Mother admitted she had been abusing
heroin for at least six months. Mother later acknowledged she had been a
drug addict for five years.
¶4 DCS removed the child from Mother’s care.4 At the time of
the child’s removal, Mother reported that Father was incarcerated,
1 The child’s biological mother (“Mother”) died shortly before the
contested severance hearing and is not a party to this appeal.
2 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming 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).
3 Father’s scheduled release date is June 9, 2018, and his maximum
end date is March 8, 2019.
4 DCS also noted that the child’s diaper was soaked and his juice bottle
was expired, and after the child’s removal, DCS learned the child’s teeth
were rotting. Mother acknowledged having been advised by a dentist in
2
TONY J. v. DCS, A.J.
Decision of the Court
although DCS could not immediately determine where, or when he might
be released. The child was placed in a licensed foster home, and DCS
eventually concluded that Father had abandoned the child because Father
had “not seen the child for an extended period of time,” had “not sent cards,
gifts, letters, or support to the child during that time,” and had “failed to
seek custody or parenting time with the child.”
¶5 On December 10, 2015, DCS filed a dependency petition,
alleging the child was dependent as to Mother based upon her drug use
and as to Father based upon abandonment and his incarceration.
¶6 By early January 2016, DCS had located Father at the ADOC
complex in Yuma. DCS obtained an order requiring Father to submit to
DNA testing to establish his paternity of the child,5 and Father was served
with the dependency petition.
¶7 In March 2016, the court found the child dependent as to
Mother. Meanwhile, DCS had been offering Mother numerous services and
encouraged Father to participate in any services available to him while
incarcerated.
¶8 Mother was generally noncompliant with services, and in
April 2016, she was briefly incarcerated. Father appeared telephonically at
the April 29, 2016 initial hearing on the dependency petition, and the
juvenile court adjudicated the child dependent as to Father and approved
a case plan of family reunification concurrent with severance and
adoption.6
¶9 Over the next several months, nothing changed; Mother
continued to be noncompliant with services, and Father remained
incarcerated and had not engaged in services at the prison. At a July 25,
Sacramento that the child needed dental care, but she had failed to follow
up on the required care and admitted the child “eats nothing but candy.”
DCS also learned that, despite Mother’s awareness that DCS had previously
removed her significant other’s children from his care due to his drug use,
Mother had continued to expose the child to him.
5 The lab conducting the DNA testing subsequently disclosed that the
probability of Father’s paternity was 99.99 percent.
6 Mother had been released by this time and appeared at the hearing.
3
TONY J. v. DCS, A.J.
Decision of the Court
2016 report and review hearing, Father appeared telephonically, and the
juvenile court granted DCS’s motion to change the case plan to severance
and adoption.
¶10 On August 26, 2016, DCS moved to terminate the parents’
parental rights to the child. As to Father, DCS moved to terminate his rights
on the statutory grounds of abandonment, his conviction of a felony the
nature of which proved his unfitness to have future custody, and the length
of his prison sentence.7 See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(1), (4)
(Supp. 2016).
¶11 Mother passed away shortly before the November 28, 2016
hearing on the motion for termination, and at the hearing, the DCS case
manager assigned to the case testified that Father had not had or attempted
to have any contact with the child since the child’s removal from Mother’s
care in December 2015. The case manager testified she provided Father
with her mailing address after receiving a collect phone call from him early
in the case, twice mailed “service letters” to Father during the dependency
(in May and October 2016), and had received no mail returned as
undeliverable. Nonetheless, during the nearly year-long interval that the
child had been in DCS’s care, Father had not contacted DCS to inquire about
the child’s well-being or to request visitation, and had not provided the
child with any correspondence, gifts, or financial support. The case
manager further testified that, given Father’s incarceration, his relationship
with the child could not be nurtured because “[i]t’s very hard for a parent
to [care for a] child while in incarceration. He’s not there on a day-to-day
basis. He’s not there to help . . . when things go on.” She added that,
although generally allowed, personal visits with prisoners such as Father
were “very limited,” and phone calls were also limited based on an inmate’s
behavior while in prison. Moreover, because Mother had died, the child
had no other parent to care for him.
¶12 Father testified that before he was arrested in June 2015, he
had lived with Mother and the child, and would take the child “to go
fishing,” “to go feed the ducks,” and “to go to Chuck E Cheese all the time.”
Father also testified that he and the child were “very close,” and he denied
ever noticing Mother’s substance-abuse issues. After he was incarcerated,
Father became aware of DCS’s involvement “around before Christmas in
2015,” and thereafter, he submitted to the paternity test that established his
paternity to the child. Father claimed he was unable to send
correspondence to the child from prison because he did not know the
7 DCS later withdrew the nature-of-felony ground.
4
TONY J. v. DCS, A.J.
Decision of the Court
address, had not received any letters from DCS, and was not permitted to
make calls from prison, but he also acknowledged he had been
telephonically present for court hearings and had never raised the issue.
Father also claimed he had begun taking parenting classes and had “just
start[ed] sending [the child] letters.”
¶13 At the close of the hearing, the juvenile court granted DCS’s
motion to terminate Father’s parental rights to the child on the grounds of
abandonment and length-of-sentence. In part, the court found that Father
had “failed to provide reasonable support, maintain regular contact and/or
normal supervision” of the child since his incarceration in June 2015 and
that, given Father’s expected release date, “the child would be deprived of
a normal home for a period of years.” Finally, the court found that
severance was in the child’s best interest.
¶14 Father filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules
of Procedure for the Juvenile Court.
ANALYSIS
I. Standard of Review
¶15 A parent possesses a fundamental liberty interest in the care,
custody, and management of his child. Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S. 745,
753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11, 995
P.2d 682, 684 (2000)). Even fundamental rights are not absolute, however.
Id. (citing Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684). A court may
sever those rights if it finds clear and convincing evidence of one of the
statutory grounds for severance, and finds by a preponderance of the
evidence that severance is in the child’s best interest. See A.R.S. §§ 8-533(B),
-537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–
16, 1022.
¶16 The juvenile court retains great discretion in weighing and
balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action
No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of fact in
a termination proceeding, the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)). Thus, the
resolution of conflicts in the evidence is uniquely the province of the
5
TONY J. v. DCS, A.J.
Decision of the Court
juvenile court, and we will not reweigh the evidence in our review. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115, 575 P.2d 310,
314 (1978) (“In considering the evidence it is well settled that an appellate
court will not substitute its own opinion for that of the trial court.” (citation
omitted)).
¶17 We will not disturb the juvenile court’s order absent an abuse
of discretion or unless no reasonable evidence supports its factual findings.
Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d at 606; Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). In reviewing
the juvenile court’s decision to terminate parental rights, we review de novo
questions of law and the court’s legal determinations, including the
application of a statute or rule. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 205, 210, ¶ 18, 181 P.3d 1126, 1131 (App. 2008); Ariz. Dep’t of Econ. Sec.
v. Ciana H., 191 Ariz. 339, 341-42, 955 P.2d 977, 979-80 (App. 1998); Maricopa
Cty. Juv. Action No. JV-507879, 181 Ariz. 246, 247, 889 P.2d 39, 40 (App. 1995).
II. Father’s Argument Regarding Abandonment
¶18 Father argues the juvenile court erred in terminating his
parental rights on the ground of abandonment, claiming that DCS and the
court “interfered” with his ability to maintain a relationship with the child.
Specifically, Father claims he “was completely uni[n]formed that he could
have visits or communicate with the child” and “believed that he could not
address the court” during hearings regarding visitation.
¶19 Under A.R.S. § 8-533(B)(1), the juvenile court may terminate
parental rights if “the parent has abandoned the child.” 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,” and “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) (Supp. 2016). “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.” Id. Under A.R.S. § 8-531(1),
“abandonment is measured not by a parent’s subjective intent, but by the
parent’s conduct: the statute asks whether a parent has provided
reasonable support, maintained regular contact, made more than minimal
efforts to support and communicate with the child, and maintained a
normal parental relationship.” Michael J., 196 Ariz. at 249-50, ¶ 18, 995 P.2d
at 685-86.
6
TONY J. v. DCS, A.J.
Decision of the Court
¶20 A parent’s incarceration, standing alone, does not provide a
legal defense to a claim of abandonment or justify severance on the grounds
of abandonment. Id. at 250, ¶ 22, 995 P.2d at 686. Instead, incarceration is
merely one factor that the juvenile court may consider in evaluating
whether a parent can perform parental obligations. Id. When
circumstances such as incarceration prevent a parent from exercising
traditional methods of bonding, the parent “must act persistently to
establish the relationship however possible and must vigorously assert his
legal rights to the extent necessary.” Id. (quoting Pima Cty. Juv. Severance
Action No. S-114487, 179 Ariz. 86, 97, 876 P.2d 1121, 1132 (1994)). “The
burden to act as a parent rests with the parent, who should assert his legal
rights at the first and every opportunity.” Id. at 251, ¶ 25, 995 P.2d at 687
(citing S–114487, 179 Ariz. at 98, 876 P.2d at 1133). Thus, “the father must
take concrete steps to establish the legal or emotional bonds linking parent
and child,” and “do more than just wait to respond [to legal proceedings]
or oppose” a severance motion, “he need[s] to affirmatively act to establish
his rights.” S-114487, 179 Ariz. at 96, 98-99, 876 P.2d at 1131, 1133-34.
¶21 Even assuming arguendo that Father’s claims are true, Father
bore the burden of ensuring that he maintained a parent-child relationship
with the child, and reasonable evidence supports the juvenile court’s
findings that he did not. The record indicates that Father had effectively
abandoned the child even before DCS and the court became involved
because, when DCS removed the child from Mother’s care in December
2015, DCS learned that Father had neither seen the child nor made efforts
to contact him or send support or gifts to him “for an extended period of
time.” DCS located Father by the next month, had him served with the
dependency petition, and arranged for him to submit to DNA testing and
establish his paternity of the child—something Father had not done since
the child’s birth approximately two years earlier. Despite being provided
the case manager’s contact information and appointed counsel (with
contact information), Father failed for nearly a year to have any contact with
the child, attempt to seek visitation or otherwise communicate with the
child, ask about the child’s well-being, or send the child any
correspondence, gifts, or financial support.8 Although Father claims he did
not know he could address the court regarding visitation during the
hearings he attended, such a claim, even if true, does not explain why he
did not ask either the case manager or his counsel about visitation. Father
could have sent letters or requested visits through either of them while the
child was in DCS’s care.
8 The record indicates Father has been employed while in prison.
7
TONY J. v. DCS, A.J.
Decision of the Court
¶22 Accordingly, reasonable evidence shows that Father made no
effort to communicate with, support, or maintain any parent-child
relationship with the child for over six months without just cause. The
court’s severance order based on abandonment is supported by clear and
convincing evidence.9
III. Best Interest
¶23 Father does not challenge the juvenile court’s finding that
severance was in the child’s best interest; however, we note that the record
supports the finding.
¶24 At the time of the severance hearing, the child had remained
with the same prospective adoptive family throughout the dependency,
and had bonded with his foster parents, who he viewed as his mother and
father.10 See Oscar O., 209 Ariz. at 334, ¶ 6, 100 P.3d at 945; Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998).
The record also indicates the child’s foster placement is meeting the child’s
physical, social, educational, medical, psychological, and emotional needs.
See Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291. Further, the court found
and the record demonstrates the affirmative benefits of permanency and
stability available to the child from severance. See generally Maricopa Cty.
Juv. Action No. JS–500274, 167 Ariz. 1, 6-7, 804 P.2d 730, 735-36 (1990).
9 Father also argues the juvenile court erred in terminating his
parental rights based on the length-of-sentence ground. Because clear and
convincing evidence supports the statutory ground of abandonment, we
need not address Father’s claims pertaining to the length-of-sentence
ground. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citations omitted);
see also A.R.S. § 8-533(B) (requiring that evidence sufficient to justify the
termination of the parent-child relationship include “any one” of the
enumerated termination grounds).
10 Although DCS had contacted the paternal grandmother, who had
stated that she would talk with Father’s family to see if anyone could
participate in an out-of-state assessment for potential placement of the
child, neither the paternal grandmother nor any other paternal relative had
provided DCS with additional information.
8
TONY J. v. DCS, A.J.
Decision of the Court
CONCLUSION
¶25 The juvenile court’s order terminating Father’s parental rights
to the child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
9