In Re Term of Parental Rights as to J.F. and J.F.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 22-0240
FILED 2-28-2023

Appeal from the Superior Court in Maricopa County
No. JS20693
The Honorable Wendy S. Morton, Judge, Pro Tempore

AFFIRMED

COUNSEL

Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant

Logan Mussman Law PLLC, Phoenix
By Logan Mussman
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO J.F. AND J.F.
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

K I L E Y, Judge:

¶1 Mark F. (“Father”) appeals the superior court’s order
terminating his parental rights to his children. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Rebeca N. (“Mother”) and Father have two children in
common, J.F. and J.F. The parties separated in 2016 and divorced two years
later. The children remained with Mother, who retained sole legal decision-
making authority over them. The dissolution decree required Father to pay
monthly child support and granted him parenting time only if supervised
by a person approved by Mother. Initially, Mother allowed various
members of Father’s extended family to supervise his parenting time.
Mother later changed her mind, deciding that Father’s parenting time must
instead be supervised through a visitation center. Although Mother
stopped allowing Father’s family members to supervise his parenting time,
she continued to allow the children to visit their paternal relatives as long
as Father was not present.

¶3 For the next two and a half years, Father made no effort to
schedule parenting time, had no contact with the children, and provided
them no gifts, letters, cards, or support. Meanwhile, Mother remarried.

¶4 Between November 2020 and July 2021, Father paid semi-
regular child support payments. In October 2021, Father hired a parenting-
time supervisor who attempted to arrange a visit. Concerned that the
children would not be comfortable with Father after such a prolonged
period without contact, Mother told him she would require that the
paternal grandmother, a familiar figure in the children’s lives, be present at
the visit. The paternal grandmother, who lived out of state, was unable to
make the trip to Arizona, and so the visit did not occur. That same month,
Mother petitioned to terminate Father’s parental rights based on
abandonment. A.R.S. § 8-533(B)(1).

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Decision of the Court

¶5 A few months before the termination trial, Father sought an
order to enforce his parenting time.

¶6 After the trial, the juvenile court issued a detailed ruling
terminating Father’s parental rights, and he appealed. This Court has
jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶7 A parent’s right to the custody and control of his child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248-49, ¶¶ 11-12 (2000). Termination of parental rights requires proof,
by clear and convincing evidence, of at least one of the statutory grounds
set forth in A.R.S. § 8-533(B). Id. at ¶ 12. Evidence is “clear and convincing”
if it is “highly probable or reasonably certain.” Kent K. v. Bobby M., 210 Ariz.
279, 284-85, ¶ 25 (2005) (citation omitted). Termination of parental rights
also requires the court to find, by a preponderance of the evidence, that
termination is in the child’s best interests. Id. at 288, ¶ 41.

¶8 “We review an order terminating a parent’s relationship with
his or her child . . . in the light most favorable to sustaining the superior
court’s ruling.” Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
We thus “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). This Court does not “re-weigh the
evidence on review,” id. at 282, ¶ 12, but “look[s] only to determine if there
is evidence to sustain the [juvenile] court’s ruling,” Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).

¶9 Abandonment occurs when a parent fails to “provide
reasonable support and to maintain regular contact with the child,
including providing normal supervision.” A.R.S. § 8-531(1). Abandonment
is determined by reference to the parent’s conduct, not the parent’s
subjective intent. Michael J., 196 Ariz. at 249-50, ¶ 18. In making this
determination, the court must consider whether the parent has maintained
a normal parent-child relationship and has made more-than-minimal
efforts to support and communicate with the child. Id.

¶10 Father does not dispute that he failed to maintain a normal
parent-child relationship with the children, but he blames Mother for
preventing him from doing so. See Calvin B., 232 Ariz. at 297, ¶ 21 (“A parent
may not restrict the other parent from interacting with their child and then
petition to terminate the latter’s rights for abandonment.”).

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Decision of the Court

¶11 The record shows, however, that Father made no effort to
communicate with the children in any manner for over two and a half years.
There is no evidence that Mother prevented him from contacting the
children during this time. Nor did Father seek judicial enforcement of his
parenting time until the eve of trial. Father’s failure to take steps to maintain
a relationship with the children supports the juvenile court’s finding of
abandonment. See Pima Cnty. Juv. Severance Action No. S-114487, 179 Ariz.
86, 97 (1994) (“When . . . circumstances prevent [a parent] from exercising
traditional methods of bonding with his child, he must act persistently to
establish the relationship however possible and must vigorously assert his
legal rights to the extent necessary.”).

¶12 Father argues that Mother obstructed his effort to exercise
parenting time in October 2021 after he arranged for a third-party
supervisor by insisting that the paternal grandmother be present, too.
Noting that the paternal grandmother lives out of state, Father asserts that
Mother’s insistence on the paternal grandmother’s presence during his
supervised parenting time created a “barrier[ ]” to his exercise of parenting
time that he was unable to overcome.

¶13 The juvenile court found, however, that Mother did not act
unreasonably on that occasion. As the court correctly noted, “[t]he decree
gave Mother the authority to approve” Father’s parenting-time supervisor.
The court further found that Mother conditioned Father’s exercise of
parenting time in October 2021 on the paternal grandmother’s presence

because she did not believe that the children would be
comfortable with Father, who was by that point a stranger to
them. Because the supervisor was also a stranger, Mother
wanted someone that the children knew and loved to be
present. After such a long absence by Father, the Court finds
that Mother was acting in the children’s best interest and that
her request was reasonable under the circumstances.

The court further observed that Father could have asked Mother to allow a
family member who resides locally to be present during his parenting time
instead of the paternal grandmother and that he made no such request.

¶14 The juvenile court went on to find that, even if Mother could
be said to have obstructed Father’s parenting time in October 2021,
“Father’s nine-day effort to exercise parenting time was only a minimal
effort in light of the many years where Father made no effort” at all.
Reasonable evidence supports the juvenile court’s “abandonment”

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Decision of the Court

determination, which this Court therefore affirms. See Mary Lou C., 207
Ariz. at 47, ¶ 8.

¶15 Father next argues that insufficient evidence supports the
juvenile court’s finding that termination was in the children’s best interests.

¶16 Once the court finds at least one statutory ground for
termination, the court must balance the parent’s “interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286,
¶ 35. In determining the child’s best interests, a court “must consider the
totality of the circumstances existing at the time of the severance
determination, including the child’s adoptability and the parent’s
rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
“[A] determination of the child’s best interest must include a finding as to
how the child would benefit from a severance or be harmed by the
continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990).

¶17 The court may find that a child would benefit from
termination if an adoption plan is in place or, at a minimum, that adoption
is likely, Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 371, ¶¶ 23-24 (App.
2018), and that the child “would benefit psychologically from the stability
an adoption would provide,” Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994); see also Demetrius L. v. Joshlynn F., 239 Ariz. 1, 5,
¶ 20 (2016) (affirming juvenile court’s finding that termination would be in
child’s best interests because “making [child] adoptable” by stepfather
“would affirmatively improve [child’s] life” by “add[ing] permanency and
stability to the de-facto father-son relationship that [s]tepfather and [child]
already have”).

¶18 Conversely, the court may find a child would be harmed by
the continuation of the parent-child relationship “where there is clear and
convincing evidence of parental unfitness which has not been
remedied . . . and which detrimentally affects the child’s well-being.” Pima
Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App. 1989).

¶19 In asserting that termination would not be in the children’s
best interests, Father cites Mother’s admission, in her trial testimony, that
the children would not be harmed if their relationship with Father
continued. This assertion is unavailing, however, because termination may
be in a child’s best interests if continuing the parent-child relationship
would harm the child or if termination would benefit the child. JS-500274,

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Decision of the Court

167 Ariz. at 5. “Framed in the disjunctive, this standard permits a finding
of best interests based on either a benefit to the child from severance or some
harm to the child if severance is denied.” Demetrius L., 239 Ariz. at 4, ¶ 16
(emphasis added).

¶20 Here, the juvenile court found that termination would benefit
the children by allowing Mother’s husband to adopt them. The court found
that Mother’s husband “has been the consistent father-figure in the
children’s lives,” viewing them “as if they are his own biological children.”
The court found that “the children are thriving.” Additionally, the children,
who were nine and thirteen at the time of trial, expressed their wish to be
adopted. The children’s desire to be adopted by their stepfather further
supports the juvenile court’s determination that termination was in their
best interests. See Maricopa Cnty. Juv. Action No. JS-9104, 183 Ariz. 455, 461
(App. 1995), abrogated on other grounds by Kent K., 210 Ariz. at 282-88, ¶¶ 12-
13, 41.

¶21 Father contends that termination would not be in the
children’s best interests in view of his prior relationship with them, noting
that he was present when they were born and that, prior to the parties’
separation, he took the children to baseball games and on other outings. In
rejecting Father’s contention on this point, the juvenile court found that,
although “[it] does not doubt that Father feels affection and love for the
children,” he no longer has a bond with them due to his prolonged absence
from their lives. On the contrary, the court found Mother’s husband “has
been the children’s only consistent father-figure since at least 2018,” while
“Father has not contributed to [their] stability or well-being in any
meaningful or consistent way.” We affirm, as supported by reasonable
evidence, the juvenile court’s determination that termination was in the
children’s best interests. See Mary Lou C., 207 Ariz. at 47, ¶ 8.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

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