Jennifer B. v. Jesse E., J.E.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER B., Appellant,

v.

JESSE E., J.E., Appellees.

No. 1 CA-JV 21-0011
FILED 9-9-2021

Appeal from the Superior Court in Maricopa County
No. JS20446
The Honorable Virginia L. Richter, Judge Pro Tempore (Retired)

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
 JENNIFER B. v. JESSE E., J.E.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.

H O W E, Judge:

¶1 Jennifer B. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to J.E. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother gave birth to J.E. in August 2014. When J.E. was eight
months old, Jesse E. (“Father”) petitioned for paternity, and the court found
that he was J.E.’s father. The court also granted Father sole legal
decision-making authority but ordered the parents to share parenting time.

¶3 In December 2017, Mother’s adult brother inappropriately
held J.E. down on a bed and licked her stomach while in Mother’s care.
Father sought an order of protection against Mother’s brother and
petitioned to modify parenting time. Mother and Father agreed that Father
would become J.E.’s primary residential parent and continue to have sole
legal decision-making authority. According to the agreement, Mother’s
parenting time would not begin until she had a working phone, and the
parenting time would be subject to all existing child support orders,
including the order of protection against Mother’s brother. Father also
contacted the Department of Child Services to investigate Mother’s failure
to protect J.E. The Department could not finish the investigation, however,
because it could not find Mother.

¶4 Two years later, Father petitioned to terminate Mother’s
parental rights, asserting that she had abandoned J.E. by having no contact
with her since December 22, 2017, and that Father’s wife wanted to adopt
J.E. The court appointed a guardian ad litem for J.E. Initially, Mother could
not be served with the petition because she could not be located, but Father
eventually found her through the mobile application “Hangout.” During
the pendency of the termination action, Mother contacted J.E. twice, but in
both instances J.E. refused to communicate with her.

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 JENNIFER B. v. JESSE E., J.E.
Decision of the Court

¶5 The court held a contested termination hearing in October
2020. The parties agreed to forego testimony and to have the court
determine the matter on the information in the petition, Father’s disclosure,
and attorney avowals. Father argued that Mother had abandoned J.E. by
having no contact with her during 2018, 2019, and the majority of 2020, and
by providing no financial support. He also argued that termination was in
J.E.’s best interests because she did not want a relationship with Mother and
had developed a parent-child relationship with his wife, who wanted to
adopt J.E.

¶6 J.E.’s guardian ad litem argued that Father proved by clear
and convincing evidence that Mother had abandoned the child by showing
that Mother had not participated in the child’s life for over two years. He
further argued that the preponderance of the evidence showed a benefit to
the termination of the parent-child relationship because J.E. could be
adopted by Father’s wife and a detriment to continuing the parent-child
relationship with Mother because J.E. would be at risk of abuse or neglect
in Mother’s care.

¶7 Mother argued that although she did not seek new orders or
enforce her visitation rights in court, Father prohibited her access to J.E. by
unfriending her on Facebook and ignoring her e-mails and phone calls. She
also argued that the termination was not in J.E.’s best interests.

¶8 The court found that Father proved the grounds of
abandonment. The court found that Mother had failed to “maintain a
normal parental relationship” with J.E. by not contacting her since
December of 2017, not providing her any financial support, not
communicating with her, and not giving her any cards, letters, or gifts
despite having a court order that provided her with parenting time. The
court further found that the preponderance of the evidence showed that
termination was in J.E.’s best interest because it allowed her to be adopted
by Father’s wife. Mother timely appeals.

DISCUSSION

¶9 Mother argues that the juvenile court erred in terminating her
parental relationship with J.E. and finding that termination was in J.E.’s best
interests. We review a juvenile court’s termination order for an abuse of
discretion. E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). We
will affirm an order terminating parental rights so long as reasonable
evidence supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz.
86, 93 ¶ 18 (App. 2009).

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 JENNIFER B. v. JESSE E., J.E.
Decision of the Court

¶10 To terminate parental rights, a court must find by clear and
convincing evidence that at least one statutory ground in A.R.S. § 8–533 has
been proved and must find by a preponderance of the evidence that
termination is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety,
240 Ariz. 282, 286 ¶ 15 (App. 2016). “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).

¶11 The juvenile court may terminate parental rights when a
“parent has abandoned the child.” A.R.S. § 8–533(B)(1). “Abandonment”
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). A parent’s conduct, not a parent’s subjective intent,
determines abandonment. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249 ¶ 18 (2000). When traditional means of bonding with a child are
unavailable, a parent must act persistently to establish or maintain the
relationship and must vigorously assert her legal rights “at the first and
every opportunity.” Id. at 251 ¶ 25.

¶12 Reasonable evidence supports termination of Mother’s
parental rights based on abandonment. Mother had no contact with J.E.
from December of 2017 until September of 2020, a month before the
severance hearing. Mother provided no record of e-mails to Father, phone
calls to Father, or evidence of letters, gifts, or cards that she sent to J.E. The
court did not err in finding that Father had proved by clear and convincing
evidence that Mother had abandoned J.E.

¶13 Mother nonetheless argues that in its termination order, the
juvenile court failed to set forth the standard of proof that it used to find
abandonment. Appellate courts presume, however, that the juvenile court
knows the law and applies the correct standard. See Hart v. Hart, 220 Ariz.
183, 188 ¶ 18 (App. 2009). The presumption may be rebutted only by record

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 JENNIFER B. v. JESSE E., J.E.
Decision of the Court

evidence. Id.; see also Brewer v. Peterson, 9 Ariz. App. 455, 458 (App. 1969)
(“The controlling law, as we see it, is that an appellate court must assume
that the [juvenile] court did no wrong, in the absence of a showing to the
contrary.”). The record does not indicate that the court applied an incorrect
standard and Mother has therefore failed to rebut the presumption that the
court applied a clear and convincing standard in finding that Father proved
the grounds for abandonment. See Hart, 220 Ariz. at 188 ¶ 18.

¶14 Mother next argues that reasonable evidence does not
support the court’s finding of abandonment. In particular, she argues that
the court erred in finding that she had no contact with J.E. since December
2017 or that she had not communicated with J.E. or provided letters, cards,
or gifts. She claims that Father’s disclosure demonstrated that she had
telephone contact with J.E. twice in September 2020. A prima facie case of
abandonment, however, requires only a showing of a lack of contact,
including letters, cards, or gifts, for a period of six months. A.R.S.
§ 8–533(B)(1). While Mother called J.E. twice in September 2020, she
provides no other evidence of contact with J.E. for the two and a half years
leading up to the contested hearing and therefore has not rebutted the
prima facie grounds of abandonment. See A.R.S. § 8–533(B)(1).

¶15 Mother further claims that Father’s statement that J.E. did not
want to talk to her showed that she had contacted J.E. more than just in
September 2020. But on appeal, courts do not reweigh the evidence, direct
or inferential, presented to the juvenile court, see Clark v. Kreamer, 243 Ariz.
272, 276 ¶ 14 (App. 2017), and we refuse to do so here. Mother’s argument
that reasonable evidence does not support the juvenile court’s conclusion is
therefore unavailing.

¶16 Relying on Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013),
Mother also argues that Father inappropriately impeded her ability to have
a parent-child relationship with J.E. because he unfriended her on Facebook
and ignored her phone calls and messages. 232 Ariz. 292 (App. 2013). “A
parent may not restrict the other parent from interacting with their child
and then petition to terminate the latter’s rights for abandonment.” Id. at
297 ¶ 21. In Calvin B., the father attempted to exercise his parental rights by
contacting the mother’s parents, filing various pleadings in the family
court, completing a required parenting course, and texting the mother
multiple times. Id. at 294–95 ¶¶ 3, 5–6, 8. This court found that the father
had “actively sought more involvement” with his son than the mother
would allow. Id. at 297 ¶ 22. Here, however, Mother concedes that she has
not attempted to exercise her parental rights through available court
proceedings and provided no evidence that she ever called or e-mailed J.E.

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 JENNIFER B. v. JESSE E., J.E.
Decision of the Court

The record does not support Mother’s argument that Father
inappropriately restricted her from contacting J.E.

¶17 For her last argument, Mother claims that termination of her
parental rights was not in J.E.’s best interests. Termination of parental rights
is in a child’s best interests if the child will benefit from the termination or
will be harmed if the relationship continues. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 150 ¶ 13 (2018). In determining whether the child will benefit
from termination, relevant factors are whether the current placement is
meeting the child’s needs, an adoption plan is in place, and if the child is
adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4 ¶ 12 (2016).

¶18 Reasonable evidence supports the juvenile court’s finding
that termination of Mother’s parental rights was in J.E.’s best interests.
Mother has had virtually no contact with J.E. for more than two years and
has provided no non-contact support in the form of letters, gifts, cards, or
financial support throughout that period. Conversely, J.E. has formed a
bond with Father’s wife that is akin to a parent-child relationship.
Termination would allow Father’s wife to adopt J.E., providing stable and
permanent care for J.E. Substantial evidence therefore supports the juvenile
court’s conclusion that termination of Mother’s parental rights would
benefit J.E. Mother’s argument to the contrary only asks this court to
reweigh the evidence, which we will not do. See Alma S., 245 Ariz. at 151–
52 ¶¶ 18–19.

CONCLUSION

¶19 For the foregoing reasons, we affirm.

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

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