Jasmine H. v. Brian H., B.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASMINE H., Appellant,

v.

BRIAN H., B.H., Appellees.

No. 1 CA-JV 20-0080
FILED 7-9-2020

Appeal from the Superior Court in Maricopa County
No. JS18207
The Honorable Glenn A. Allen, Judge Pro Tempore

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellee
 JASMINE H. v. BRIAN H., B.H. et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.

P E R K I N S, Judge:

¶1 Jasmine H. (“Mother”) appeals from the juvenile court’s
severance of her parental rights to her son, B.H. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother and Brian H. (“Father”) are the biological parents of
B.H., born in 2011. They divorced in 2014. In the dissolution decree, the
court awarded Father sole legal-decision making as to B.H., and ordered
that Mother have “no parenting time (visitation) at all because any time
with [Mother] would endanger seriously the physical, mental, moral or
emotional health of the child.” Mother left Arizona in 2013 and has not seen
B.H. in person since.

¶3 Father petitioned to terminate Mother’s parental rights
several times before the current petition. The juvenile court dismissed
Father’s first two petitions because he had not shown that termination was
in B.H.’s best interests. His third petition went to mediation and the parties
agreed to dismiss it without prejudice so Mother could petition to modify
parenting time in family court. Father then filed a fourth petition that the
juvenile court dismissed without prejudice, but authorized Father to refile
if Mother failed to start family court proceedings by a set date.

¶4 Mother missed the deadline and Father filed the instant
petition. After finding Mother failed to initiate family court proceedings as
the parties agreed in the earlier mediation, the juvenile court granted the
petition on abandonment grounds. Mother timely appealed.

DISCUSSION

¶5 Mother argues the juvenile court erred in finding Mother
abandoned B.H. She also contends the juvenile court erred in finding
termination was in B.H.’s best interests.

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 JASMINE H. v. BRIAN H., B.H. et al.
Decision of the Court

¶6 We review the termination of parental rights for an abuse of
discretion. Mary Lou C. v. Ariz. Dep’t Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). As the trier of fact, the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 269,
¶ 13 (App. 2014) (quoting Ariz. Dep’t Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶
4 (App. 2004)). Accordingly, we will not reweigh the evidence on review.
Oscar F., 235 Ariz. at ¶ 13.

¶7 “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State
support its allegations by at least clear and convincing evidence.” Santosky
v. Kramer, 455 U.S. 745, 747–48. “[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. This court will uphold the
juvenile court's findings of fact “if supported by adequate evidence in the
record.” Christy C. v. Ariz. Dep’t Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App.
2007) (quoting State v. Smith, 123 Ariz. 243, 247 (1979)).

I. Abandonment

¶8 The juvenile court terminated Mother’s parental rights to
B.H., finding abandonment. See A.R.S. § 8-533(B)(1). Abandonment is:

[T]he 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).

¶9 We have held that 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 her child.
Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶¶ 18, 21 (App. 2010). While
reasonable support, regular contact, and normal supervision may vary
from case to case, we measure abandonment by a parent’s conduct and not
her subjective intent. Michael J. v. Ariz. Dep’t Econ. Sec., 196 Ariz. 246, 249–
50, ¶¶ 18, 20 (2000). When circumstances prevent the parent from
“exercising traditional methods of bonding with [her] child, [she] must act

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 JASMINE H. v. BRIAN H., B.H. et al.
Decision of the Court

persistently to establish the relationship however possible and must
vigorously assert [her] legal rights to the extent necessary.” Id. at ¶ 22.

¶10 First, Mother argues the juvenile court erred as a matter of law
because it did not consider whether she was an “unfit parent.” She contends
that, because there was evidence Mother was taking care of two other
children at the time of termination, she could not, by definition, be an unfit
parent. We disagree. While this evidence may be relevant to whether
Mother is a fit parent generally, it does not bear on whether she abandoned
B.H. under A.R.S. § 8-531(1).

¶11 Second, Mother argues insufficient evidence supported
termination under the abandonment ground. The record contradicts this
contention. Mother testified at the termination hearing that she moved
away from Arizona in 2013 – when B.H. was about two years old – and has
not seen him since. She also stated that, at first, she could not return to
Arizona because of her employment on an oil rig, but she also testified that
she left that job in 2014.

¶12 Mother testified that she has provided no court-ordered child
support to B.H. While Mother did state that she tried to have gifts delivered
to B.H. in 2014 and 2015, Father testified that he never received any gifts.
Mother also testified that she did not make any further attempts to send
gifts because she was “tired” and because it was “emotionally draining.”

¶13 The evidence also shows sporadic contact at best between
Mother and B.H. Mother had several “video chats” with B.H. in 2013 and
2014. She also made sporadic phone calls in the fall of 2019, but those
“tapered off.”

¶14 Nor has Mother ever petitioned to modify parenting time in
family court – even after Father agreed to dismiss his termination petition
to allow her to do so, and even after the juvenile court explicitly authorized
her to do so. Substantial evidence supports the juvenile court’s finding that
Mother failed to provide reasonable support, regular contact, and normal
supervision to B.H. The juvenile court did not abuse its discretion in finding
Mother abandoned B.H.

II. Best Interests

¶15 Mother also argues the juvenile court erred in determining
termination was in B.H.’s best interests.

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 JASMINE H. v. BRIAN H., B.H. et al.
Decision of the Court

¶16 Termination of the parent-child relationship is in the child’s
best interests when the child would benefit from the termination or be
harmed by continuation of the relationship. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 150, ¶ 13 (2018). A child benefits from termination when the
child is adoptable or a current adoption plan is in place. Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12 (2016). When a statutory ground for
severance has been proven, the juvenile court must balance the child’s
interest in a safe and stable home against the unfit parent’s “diluted”
interest in the care of the child. Id. at 4, ¶ 15 (quoting Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 35 (2016)).

¶17 Father’s current spouse testified at the termination hearing
that she had been involved in B.H.’s life for about six years. She claimed
that she had a parental relationship with B.H. and testified that he “has
called [her] mom since day one.” Finally, she testified that she would be
willing to adopt B.H. and accept him as her son if granted the opportunity.

¶18 Father also testified that he would like his current spouse to
adopt B.H., and explained that it would be in B.H.’s best interests for her to
do so “[b]ecause it would give [B.H.] the mother that will love him and give
him everything he needs and the attention and love that he deserves.” He
also stated that, despite Mother’s recent phone conversations with B.H.,
termination would still be in B.H.’s best interests “[b]ecause of the
inconsistency, the unwillingness to really have a constant relationship with
[B.H.] . . . .”

¶19 Substantial evidence supports the juvenile court’s
determination that B.H. would benefit from termination, and that “[a]ny
disruption to the current family unit would be a detriment.” We find no
error.

CONCLUSION

¶20 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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