In Re Term of Parental Rights as to A.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 23-0127
FILED 10/24/2023

Appeal from the Superior Court in Maricopa County
No. JS21439
The Honorable Amanda S. Chua, Judge Pro Tempore, Retired

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellee

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

K I L E Y, Judge:

¶1 Elias N. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, A.M. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Diana M. (“Mother”), who never married, are the
biological parents of A.M., born in 2011. Although their relationship ended
during Mother’s pregnancy, Father was present at A.M.’s birth.

¶3 Viewed in the requisite “light most favorable to sustaining the
juvenile court’s order,” In re O.M., 254 Ariz. 543, 544, ¶ 3 (App. 2023), the
evidence shows that until A.M. was four years old Father visited her “about
once a week” at her maternal grandmother’s home, where she and Mother
lived. Mother “facilitat[ed]” these visits by “transporting [Father] to see
[A.M.].”

¶4 Father’s visits with A.M. gradually became “more
inconsistent” until Mother “lost contact” with Father altogether in 2016.
Because A.M. was “asking for him a lot,” Mother tried contacting Father by
“reach[ing] out to his brother on Instagram.” Father’s brother informed her
that Father “didn’t have a phone number” and suggested she try reaching
him by calling A.M.’s paternal grandmother. He also promised to let Father
know that Mother was trying to contact him. About two months later,
Father called Mother from his mother’s phone but did not provide a current
number for himself.

¶5 In 2017, Mother “went to court regarding child support.”
After Father stated at the support hearing that “he wasn’t working and . . .
was struggling with his health,” Mother withdrew her request, and the
family court issued an order setting child support at “zero.” Mother and
Father “did not enter any agreements regarding parenting time or legal
decisions.” However, Mother urged Father to “come see” A.M., telling him
“how much this child loved him.”

¶6 One day in late 2017, Father picked A.M. up from the
maternal grandmother’s home and spent “all day” with her. Mother
supported the visit because spending time with Father “made [A.M.]
happy.” Father also dropped off presents for the child on Christmas in 2017
but, for reasons that the record does not make clear, did not see her that
day.

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

¶7 Mother met Ricardo A. in 2017, and they married in 2020.

¶8 Mother changed her phone number in 2018. She did not
provide Father with the new number because, she later explained, she
“didn’t have contact with [him] any more [sic].” However, she remained in
contact with his siblings via social media.

¶9 Father called the maternal grandmother once in 2018 to ask
about visiting A.M. However, A.M. “was going to Mexico” for “a vacation,”
so he did not see her.

¶10 Since then, Father has not visited or communicated with A.M.
at all. At trial, Father claimed that he didn’t “reach out” to arrange a visit
with A.M. because he purportedly “had no way of contacting” Mother, but
he admitted that he could have called the maternal grandmother if he
wanted to see A.M.

¶11 In December 2019, Father suffered injuries during a “very
serious accident” that left him in a coma. As a result, he experienced
significant memory loss and spent three months in the hospital “learning to
speak, talk, and walk again.” At trial in March 2023, Father stated that his
memory is still impaired and that he is unable to work because of his
injuries.

¶12 During his hospitalization, Father’s sister “Susan” (a
pseudonym) reached out to Mother via social media, told her about Father’s
accident, and asked her to bring A.M. to the hospital to visit him. Concerned
about how seeing Father in an injured state and “possibly[] . . . not even
remembering” A.M. might affect the child’s “mental health,” Mother
declined.

¶13 Shortly thereafter, Susan reached out to Mother “about
dropping off gifts” for A.M. Mother again declined, explaining that A.M.
had already gone through the process of “healing” from Father’s absence,
which could be undermined by renewed contact with Father’s sister.

¶14 Throughout A.M.’s life, Father has “never paid child
support,” and A.M. has never lived with him.

¶15 In September 2022, Mother petitioned to terminate Father’s
parental rights on grounds of abandonment and incapacity under A.R.S.
§ 8-533(B)(1) and (B)(3), respectively. In her petition, Mother listed her
home address as “protected” because she “did not know in what emotional,
mental state [Father] was going to be.”

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

¶16 After a one-day hearing in March 2023, the juvenile court
terminated Father’s parental rights as to A.M. solely on the abandonment
ground. Father timely appealed. We have jurisdiction under A.R.S.
§§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶17 A parent’s right to custody and control of his or her child,
though fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 248, ¶¶ 11-12 (2000). The parental relationship may be
terminated if the juvenile court finds, by clear and convincing evidence, at
least one statutory ground for termination under A.R.S. § 8-533(B) and
further finds, by a preponderance of the evidence, that termination is in the
child’s best interests. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474,
¶ 13 (2022). We view evidence in the light most favorable to sustaining the
juvenile court’s findings, see Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207, ¶ 2 (App. 2008), and we will affirm an order terminating parental
rights absent an abuse of discretion, Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 47, ¶ 8 (App. 2004).

¶18 Father does not challenge the juvenile court’s determination
that termination was in A.M.’s best interests. He argues, however, that the
court’s determination that he “abandoned” A.M. “is clearly erroneous and
not supported by substantial evidence.”

¶19 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). To establish
abandonment, the evidence must show that the parent has made only
“minimal efforts to support and communicate with the child.” Id. “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. “[A]bandonment is measured not by a parent’s
subjective intent, but by the parent’s conduct.” Michael J., 196 Ariz. at 249,
¶ 18. “What constitutes reasonable support, regular contact, and normal
supervision varies from case to case.” Id. at 250, ¶ 20 (citation omitted).
“Therefore, questions of abandonment are questions of fact for resolution
by the trial court.” Id. (cleaned up).

¶20 Here, reasonable evidence supports the juvenile court’s
finding that Father abandoned A.M. As the court noted, after 2017 Father
“failed to maintain regular contact with the child,” “[t]he child received no
cards or gifts from Father,” and “Father did not inquire as to the child’s

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Decision of the Court

well-being.” Although Father’s sister contacted Mother about A.M. twice in
2019, efforts by Father’s family members to contact the child are irrelevant
to Mother’s abandonment claim against Father. See also Steven M. v. Dep’t of
Child Safety, 254 Ariz. 426, 430 ¶ 12 (App. 2023) (“The burden to act as a
parent rests with the parent . . . .”) (citation omitted).

¶21 Father’s lengthy hospitalization following his accident in 2019
does not establish “just cause” for his absence from A.M.’s life, see A.R.S.
§ 8-531(1), because, at the time of Father’s accident, he had not seen A.M.
for two years and had only tried to contact her by phone once. When asked
by counsel why he didn’t “make more of an effort to see [his] daughter”
during the two years before his accident, Father replied, “I—don’t have [a]
response for that one.”

¶22 Relying on Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013),
Father argues that Mother interfered with his relationship with A.M.,
thereby precluding a finding of abandonment. See id. at 293-94, ¶ 1 (“[A]
parent who has persistently and substantially restricted the other parent’s
interaction with their child may not prove abandonment based on evidence
that the other has had only limited involvement with the child.”).
According to Father, Mother “obstructed” his relationship with A.M. by
(1) changing her telephone number without telling him; (2) refusing to
bring A.M. to the hospital to visit him after his accident; (3) refusing gifts
from his sister Susan in 2019; and (4) listing A.M.’s current residence as
“protected” on the petition for termination despite there being “no
evidence that [Father] was a threat to her or the child.” Father further
accuses Mother of “do[ing] all in her power to eliminate [Father] as the
child’s father and to replace him with her husband” despite knowing that
Father is “limited in his ability to protect his parental relationship” due to
his “catastrophic injury.”

¶23 Calvin B. is readily distinguishable. There, the mother
“persistently and substantially restricted [the father’s] interaction with their
child,” refusing to allow him to exercise his court-ordered parenting time
(in violation of their dissolution decree), seeking an order of protection
barring him from any contact with the child, and refusing to allow him to
speak with the child on the phone for at least six months. Id. at 293, 297-98,
¶¶ 1, 21-24, 30. This Court held that, under those circumstances, the
superior court erred by finding abandonment “given the hurdles that [the
mother] erected to [father’s] ability to parent.” Id. at 297, ¶¶ 21, 25.

¶24 Here, although Mother “changed her phone number in 2018,”
there is no evidence that Mother did so to prevent Father from contacting

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her or A.M. Indeed, Father could have contacted them via social media and
through A.M.’s maternal grandmother, whose phone number and address
Father knew. Similarly, Father’s contention that Mother interfered with his
parent-child relationship by listing her address as “protected” on the
termination petition she filed in 2022 overlooks both the alternative means
of communication available to him and his failure to maintain a relationship
with A.M. for over four years before Mother filed the petition.

¶25 Mother’s unwillingness to bring A.M. to visit Father in the
hospital in 2019 does not preclude a finding of abandonment in view of the
amount of time that had passed since his last contact with the child in 2017
and Mother’s explanation, which Father made no attempt to refute, that she
feared that A.M. would suffer emotional harm if she saw Father in an
injured condition. See In re C.R. & A.R., 105 Ariz. Cases Dig. 34, ¶ 15 (App.
Sept. 19, 2023) (noting that one parent’s restriction of other parent’s access
to their child precludes a finding of abandonment “only if” the restriction
was “wrongful[]”) (emphasis omitted). Evidence in the record amply
supports the court’s determination that Mother’s “actions do not rise to the
level of interference required to establish a defense to abandonment.”

¶26 In any case, even if Mother could be said to have interfered
with Father’s relationship with A.M., a parent “must act persistently” to
foster and maintain the parent-child relationship despite obstacles that may
arise. See Michael J., 196 Ariz. at 250, ¶ 22. Irrespective of Mother’s conduct,
Father had an obligation to act persistently to maintain his relationship with
A.M. and “vigorously assert his legal rights to the extent necessary.” See id.
(citation omitted). Father made no such efforts. From 2017 until his accident
in 2019, he only visited A.M. once and called one other time. Although
Mother changed her phone number in 2018, he still could have contacted
her through his siblings or the maternal grandmother. He did not.
Similarly, he could have sought parenting time in family court, but he did
not. At bottom, despite a variety of ways in which Father could have
nurtured and maintained his relationship with A.M., he made no effort to
do so. Father’s longstanding failure to diligently maintain his relationship
with A.M. supports the juvenile court’s finding of abandonment. See In re
C.R. & A.R., 105 Ariz. Cases Dig. at ¶¶ 16, 20, 22 (rejecting father’s claim
that mother interfered with his relationship with the children by failing to
accept his phone calls because father “could have maintained his
relationship with the children in a variety of [other] ways,” including by
writing them letters and petitioning for court-ordered parenting time, “but
wholly failed to do so”).

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 IN RE TERM OF PARENTAL RIGHTS AS TO A.M.
Decision of the Court

CONCLUSION

¶27 Because ample evidence supports the juvenile court’s finding
of statutory grounds for termination and Father does not challenge the
court’s determination that termination was in A.M.’s best interests, we
affirm.

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

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