In Re Term of Parental Rights as to N.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 22-0256
FILED 3-28-2023

Appeal from the Superior Court in Maricopa County
No. JD41329, JS21056
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO N.C.
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

P A T O N, Judge:

¶1 Gabriel E. (“Father”) appeals the superior court’s order
terminating his parental rights to his child. Although the superior court
also terminated the child’s mother’s (“Mother”) parental rights, she is not a
party to this appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 N.C. was born substance-exposed to methamphetamine in
September 2021. Mother admitted to abusing methamphetamine and
fentanyl while pregnant. When the Department of Child Safety (“DCS”)
interviewed Mother, she did not identify N.C.’s father. Meanwhile, Father
drove maternal grandmother to the hospital at the time of N.C.’s birth, but
Father said he was not allowed to go inside. Nonetheless, Father did not
contact DCS or anyone else for information about the child. Nor did he
register with the putative fathers’ registry or otherwise seek to establish his
paternity. DCS took custody of N.C. and petitioned to adjudicate the child
dependent.

¶3 In February 2022, Father’s significant other gave Father’s
contact information to DCS. The case manager tried calling Father but
could not reach him until April 2022. At that time, the case manager gave
Father a list of locations to complete paternity testing, but he did not test
for another two months. DCS thereafter petitioned to terminate his parental
rights based on abandonment pursuant to Arizona Revised Statutes
(“A.R.S.”) Section 8-533(B)(1).

¶4 After a May 2022 test confirmed Father’s paternity, DCS
referred him for supervised visits. The provider had a waitlist, but DCS
was prepared to offer Father a case aide who could immediately begin
visits. But Father did not answer or respond to the case manager’s calls,
and no visit took place.

¶5 Father next contacted the case manager in early September
2022 and requested visits; before trial, he had completed only four visits
with almost one-year-old N.C. The superior court held a combined trial on

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the dependency and termination petitions. It then adjudicated N.C.
dependent and terminated Father’s parental rights. Father appealed. We
have jurisdiction under Article 6, Section 15, of the Arizona Constitution,
Section 8-235(A), and Rule 601(a) of the Arizona Rules of Procedure for the
Juvenile Court.

DISCUSSION

¶6 Father argues there was insufficient evidence to support the
termination order. A parent’s right to custody and control of his own child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248–49, ¶¶ 11–12 (2000). Severance of a parental relationship may
be warranted when DCS proves one statutory ground under Section 8-533
by “clear and convincing evidence.” Id. “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 termination is in the child’s best interest by a
preponderance of the evidence. Id. at 285, ¶ 29.

¶7 We will uphold the court’s findings of fact “if supported by
adequate evidence in the record.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 445, 451–52, ¶ 19 (App. 2007) (quoting State v. Smith, 123 Ariz. 243, 247
(1979)). “[T]his court will not reweigh the evidence but will 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).

¶8 A parent may forfeit his parental rights if he abandons his
child. A.R.S. § 8-533(B)(1). Abandonment occurs when the 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 measured by a parent’s conduct, not his subjective intent. Michael J., 196
Ariz. at 249–50, ¶ 18. The court must consider “whether a parent has
provided reasonable support, maintained regular contact, made more than
minimal efforts to support and communicate with the child, and
maintained a normal parental relationship.” 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.”
A.R.S. § 8-531.

¶9 Here, reasonable evidence supports the superior court’s
finding that Father abandoned N.C. Despite knowing about Mother’s
pregnancy and the child’s birth, he took no actions to establish paternity or
otherwise care for and protect the child. Although Father’s significant other

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Decision of the Court

contacted DCS, Father did not speak with the case manager until the child
was about seven months old. Thereafter, Father maintained only
intermittent contact with the case manager, and, as a result, only completed
four visits before trial. Although he provided gifts and some supplies at
those visits, he did not provide the child with any financial support, cards,
or letters. The superior court therefore found that Father had taken only
minimal steps to establish a relationship with N.C., and reasonable
evidence supports that finding. Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 18
(App. 2010) (If a parent makes “only minimal efforts to support and
communicate with the child,” such minimal conduct can support finding
the parent has abandoned the child.).

¶10 Father suggests DCS caused one of the delays because it sent
the paternity testing provider list to an address where he does not receive
mail. But Father testified at trial that the case manager also gave him the
testing location over the phone.

¶11 Father next asserts the superior court erred in finding
termination was in N.C.’s best interests. In addition to finding a statutory
ground for termination, the superior court must also determine what is in
the best interests of the child by a preponderance of the evidence. Kent K.,
210 Ariz. at 284, ¶ 22. Once the court finds a parent unfit under at least one
statutory ground for termination, “the interests of the parent and child
diverge,” and the court proceeds to balance the unfit 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.” Id. at 286, ¶ 35.
“[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). Courts “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).

¶12 Here, N.C. was bonded with his maternal aunt who was
providing for his needs and planned to adopt him. The superior court
therefore found that termination would provide N.C. with “permanency
with the only family the child has ever known.” The court considered
Father’s recent visits with N.C. but found that because his total efforts over
the child’s first year were minimal, “it would be a detriment to [N.C.] to
keep this matter ongoing while [Father] decides whether he is going to
perform the role and functions of a father because it will keep the child in
an impermanent position.” Reasonable evidence supports these findings.

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Decision of the Court

CONCLUSION

¶13 We affirm.

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

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