Jessica S., Bret S. v. Brandy R.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSICA S., BRET S., Appellants,

v.

BRANDY R., J.S., Z.S., Appellees.

No. 1 CA-JV 21-0364
FILED 7-14-2022

Appeal from the Superior Court in Mohave County
No. B8015SV202004010, B8015SV202004011
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Your AZ Lawyer, Phoenix
By Robert Ian Casey
Counsel for Appellant Jessica S.

Harris & Winger PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellant Bret S.

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Appellee Brandy R.
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Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 Bret S. (“Father”) and Jessica S. (“Mother”) appeal the
termination of their parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father has two children: J.S. with Mother, and Z.S. with
another woman. The parents had prior involvement with child protective
agencies in Arizona and Nevada. Around 2016, the children moved in with
Father and Mother in Nevada.

¶3 About two years later, Nevada’s Division of Child and Family
Services discovered that Father and Mother were neglecting the children.
Their home was unsafe, and four-year-old J.S. consistently came to school
dirty and smelling strongly of animal urine. J.S. hoarded food, had bed-
wetting issues, could not speak in sentences, and could barely dress
himself. Z.S. also hoarded food, and eventually disclosed that Mother and
Father locked her in her room as punishment, that Mother spanked her to
the point of bruising, and that a step-sibling sexually abused her.

¶4 To avoid a dependency, Father and Mother consented to the
appointment of paternal grandmother Brandy R. (“Grandmother”) as the
children’s legal guardian. The court granted a temporary guardianship,
and the children moved in with Grandmother and her husband in
November 2018. Over the next year, Grandmother supervised visits
between Father, Mother, and the children. In October 2019, the court
appointed Grandmother as the children’s permanent legal guardian with
Father and Mother’s consent. As part of the appointment, the court ordered
that visitation “will continue as it has been made available by the Guardian
under the Temporary Guardianship Order and shall continue at the
Guardian’s discretion and upon such terms and conditions as the Guardian
believes necessary to protect the best interest of the minor children,
including but not limited to whether the parents shall be supervised or
unsupervised.”

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¶5 At a visit in November 2019, Grandmother believed that
Father and Mother were under the influence of drugs because she noticed
they were acting “[v]ery flighty,” “speaking slowly,” and “their eyes were
glazed.” According to Grandmother, this was not the first visit where they
appeared intoxicated. After the visit, Grandmother told Father that he and
Mother needed “not to be high again” and that he needed to find someone
else to supervise future visits. Father later testified that the only drug he
had taken before the visit was a prescribed anxiety pill.

¶6 Thereafter, Father and Mother periodically texted
Grandmother to try to set up visits, but they did not secure another
supervisor and therefore did not visit the children again. Nor did they call
the children or send them any support, cards, gifts, or letters.

¶7 In August 2020, Grandmother petitioned to terminate the
parents’ parental rights based on abandonment. A court-appointed
investigator concluded in social studies that it was in the children’s best
interests for the court to grant the termination petition. After an evidentiary
hearing, the superior court granted Grandmother’s petition. Father and
Mother appeal.

DISCUSSION

¶8 A parent’s right to custody and control of his or her own child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11–12 (2000). Severance 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. at ¶ 12. “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) (citation
omitted). The court must also find that severance is in the child’s best
interests by a preponderance of the evidence. Id. at 288, ¶ 42.

¶9 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and we 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). We do not reweigh the
evidence, but “look 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 The superior court may terminate a parent’s parental rights
based on abandonment under A.R.S. § 8-533(B)(1) when the parent fails

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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]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct.” Michael J., 196 Ariz. at 249, ¶ 18.

¶11 Father contends that, as a matter of law, a guardian appointed
under Title 14 cannot prove parental abandonment under § 8-533(B)(1).1
But under A.R.S. § 8-533(A), “[a]ny person or agency that has a legitimate
interest in the welfare of a child, including a relative, . . . may file a petition
for the termination of the parent-child relationship.” (Emphasis added.)
Citing our supreme court’s recent decision in Timothy B. v. Department of
Child Safety, 252 Ariz. 470 (2022), Father argues that “if considering the mere
option of guardianship is a constitutional pre-requisite before terminating
parental rights, then the existence of a guardianship established under
Arizona statutes must prevent termination of parental rights based on
abandonment.” Timothy B. held that when a parent is incarcerated and no
other parent is available to provide a normal home for the child during the
incarceration term, the court should consider as a factor for termination the
availability of a Title 8 permanent guardian to provide a normal home life.
Id. at 476–77, ¶¶ 25, 27. Nothing in Timothy B. suggested that the
appointment of a guardian automatically prevents the termination of
parental rights.

¶12 Father also argues that because he expressly transferred his
parental duties via the guardianship, his failure to undertake those duties
cannot form the basis of an abandonment. Mother likewise argues that “a
guardianship practically and legally impede[s] the possibility of a parent-
child relationship” and therefore cannot be used to create a de facto

1 Though it is unclear from the record if the requirements of A.R.S.
§ 14-5204 were met before the court issued the guardianship orders, the
superior court retained jurisdiction. See A.R.S. § 14-5204 (allowing the court
to appoint a guardian for a minor “if all parental rights of custody have
been terminated or suspended by circumstances or prior court order”); In
re Mikrut, 175 Ariz. 544, 546 (App. 1993) (guardianship order entered in
error under § 14-5204 did not affect subject-matter jurisdiction).

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severance. The appellants’ suggestion that transferring their parental
duties via a guardianship somehow provides indefinite immunity from a
judicial finding of abandonment is neither accurate nor persuasive.

¶13 The appellants alternatively assert that the court erred in
applying the abandonment statute because it failed to consider how the
guardianship restricted their ability to maintain a normal parental
relationship with the children. The appellants’ argument is unpersuasive
for several reasons.

¶14 First, the appellants invited the limitations when they
consented to the guardianship orders and never sought to have them
revoked as years passed. Second, though the court should consider (like
any other fact in evidence) the existence and effect of a guardianship before
finding abandonment, see Timothy B., 252 Ariz. at 476–77, ¶¶ 25, 27, the
appellants do not show how the court failed to do that here. To the
contrary, the court heard evidence about the guardianship and its effect on
the appellants and expressly recognized that evidence in its final order.

¶15 Moreover, though a guardian “has the powers and
responsibilities of a custodial parent” for the child’s support, care, and
education, A.R.S. § 14-5209(A), the guardian’s appointment does not
prevent a parent from maintaining a relationship with his or her child or
assisting the guardian with the child’s needs. Indeed, when “circumstances
prevent [a parent] from exercising traditional methods of bonding with his
[or her] child, he [or she] must act persistently to establish the relationship
however possible and must vigorously assert his [or her] legal rights to the
extent necessary.” Michael J., 196 Ariz. at 250, ¶ 22 (citation omitted). The
appellants did not act vigorously in this case. Though Grandmother agreed
to supervise visits for the first year, the appellants visited inconsistently.
Thereafter, the appellants did not visit, call, or write the children. Nor did
they provide gifts or support for them.

¶16 The appellants assert, however, that Grandmother interfered
with their ability to visit the children by requiring another person to
supervise them. To be sure, a parent may have just cause for limited
involvement with his or her child if another “persistently and substantially
restricts the . . . parent’s interaction with their child.” See Calvin B. v. Brittany
B., 232 Ariz. 292, 293, ¶ 1 (App. 2013). But that was not the case here. The
appellants argue that they lacked funds to employ a visitation agency for
supervision as Grandmother first required. But any financial constraint on
the appellants’ ability to visit the children was removed when
Grandmother later told Father that the supervisor could be a mutually

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agreed-upon adult. Grandmother offered that her husband would
supervise so long as another person also attended, and she agreed to
Father’s suggestion to have his roommate supervise. The appellants did
not, however, act to arrange supervised visits or otherwise contact the
children.

¶17 On this record, the superior court reasonably found
abandonment.

CONCLUSION

¶18 We affirm.

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

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