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

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 22-0279
FILED 7-20-2023

Appeal from the Superior Court in Maricopa County
No. JS519839
The Honorable Sigmund G. Popko, Judge, Pro Tempore

AFFIRMED

COUNSEL

Guymon Law, Chandler
By Amber L. Guymon
Counsel for Appellant

Law Office of Roman A. Kostenko, PLC, Phoenix
By Roman A. Kostenko
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO M.L.
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge David B. Gass and Judge Andrew M. Jacobs joined.

F U R U Y A, Judge:

¶1 M.L.’s father (“Father”) appeals the superior court’s order
denying his petition to terminate the parental rights of the child’s mother
(“Mother”). Because we hold a parent may not rely on their own violations
of court orders to establish another parent’s abandonment, and for other
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother lived in Colorado at M.L.’s birth in 2013.
In 2014, Mother petitioned the Colorado family court to determine
parenting time and decision-making for M.L. The Colorado court approved
the parents’ stipulated parenting plan. The resulting order established
Mother as M.L.’s primary residential parent but allowed Father parenting
time and ordered him to pay child support. It also gave the parents joint
legal decision-making authority.

¶3 Father moved to modify the order after seven months, raising
concerns about Mother’s adherence to it and asserting she was neglecting
M.L. While his petition to modify was pending, Father repeatedly reported
Mother to Colorado’s Division of Child Welfare, saying Mother was
abusing substances. Though mother delayed testing, her subsequent drug
tests were negative.1

¶4 In 2016, the Colorado court granted a stipulated modification
(“First Modification”). It gave Father final decision-making authority for
two years and then reverted to joint legal decision-making. As to parenting
time, Father became M.L.’s primary residential parent; Mother was
awarded parenting time and ordered to pay Father child support.

1 Father also encouraged others to report Mother. Though Mother
refused to submit to the initial drug test for several months, she eventually
tested negative. Also, M.L. needed major dental work after being in
Mother’s care, which could be construed as some evidence of neglect.
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Ultimately, Mother remedied the concerns Father had raised about her
parenting, and she consistently exercised her parenting time.

¶5 Two months after the First Modification, Father moved to
relocate the child to Arizona because his employer planned on promoting
him and he claimed his salary would substantially increase. The Colorado
court approved Father’s relocation in another modification order (“Second
Modification”). The court also noted the large discrepancy between the
parents’ incomes and made the relocation contingent on Father earning a
higher salary and on his returning to Colorado with M.L. at least one
weekend a month so Mother could exercise her parenting time.
Additionally, the Second Modification provided M.L. would spend all her
summers and fall breaks with Mother, and the parents would alternate
holidays and spring breaks and split Christmases. The order further
allowed Mother to exercise parenting time in Arizona at her discretion if
she gave Father at least 14 days’ notice. The court allocated to Father 85
percent of the travel costs for Mother’s summer, holiday, and school break
parenting time visits and 15 percent to Mother. It also reiterated prior legal
decision-making orders requiring Father to consult Mother on any major
decisions for M.L. 14 days before taking any action. The Second
Modification required no child support from either parent.

¶6 Mother appealed the Second Modification. The Colorado
appellate court indicated that conditioning Father’s ability to move on a
higher salary was contrary to Colorado law but nevertheless affirmed the
order because he had already moved to Arizona.

¶7 Mother continued to exercise her parenting time in Colorado
until September 2017, when Father, his girlfriend (now wife), and M.L.
relocated to Arizona. After relocating, Father returned to Colorado with
M.L. only four times: one day in October 2017,2 three days in November
2017, two days in December 2017, and two days in January 2018. During
the December trip, Father refused to allow Mother to visit M.L. longer than
one day. Father did not tell Mother about any later trips to Colorado,
though he admitted he returned six times a year. And Father acknowledged
he never consulted Mother about any legal decisions for M.L. Mother did
not ask the court for help in addressing Father’s violations.

¶8 Meanwhile, Mother attempted video calls with M.L. on
several occasions, but the parents could not get them to work. Instead, she

2 The record indicates Mother was unable to exercise her parenting
time during this trip.
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called M.L. semi-regularly through summer 2019. From July 2019 to
October 2021, Mother had no contact with M.L., contributed no support,
and sent her no cards, gifts, or letters. At one point, Mother tried to send a
money order to Father that he rejected.

¶9 In April 2021, Father filed a petition to terminate Mother’s
parental rights to M.L. based on grounds of abandonment in the juvenile
division of the Arizona superior court. An adoption manager filed a social
study recommending Mother’s parental rights be terminated.

¶10 Mother renewed her requests to visit with or speak to M.L. in
October 2021 and again from May through July 2022. Father refused these
requests, citing the pending termination petition. In July 2022, Mother
traveled to Arizona, but Father refused her repeated requests to spend time
with M.L.

¶11 In January 2022, Mother moved to enforce the provisions of
the Second Modification in the family division of the Arizona superior
court. The family division stayed that matter pending resolution of this (the
juvenile) case. After trial, the juvenile division denied Father’s petition,
finding Father’s interference and hostility gave Mother just cause for failing
to maintain a normal parental relationship with M.L. Father appealed. We
have jurisdiction under Article 6, Section 9 of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) §§ 8-235(A), 12-120.21(A), and 12-
2101(A).3

DISCUSSION

¶12 Father appeals the denial of his petition to sever Mother’s
parental rights, arguing (1) the court failed to consider a social study’s
recommendation to terminate Mother’s parental rights, (2) issue preclusion
barred some of the court’s findings, given the prior Colorado litigation
concerning related matters, and (3) the evidence was insufficient to support
findings that (a) Mother had just cause for the interruption in contact with

3 Because Mother still lives in Colorado, Colorado retained subject
matter jurisdiction over matters relating to M.L.’s care under the UCCJEA.
See A.R.S. §§ 25-1001 to -1067. However, Division 25 of the Arapahoe
Combined Courts of Colorado relinquished jurisdiction to Arizona over
custody decisions concerning M.L. on February 16, 2022. A.R.S. § 25-1037
(establishing that a court may decline to exercise jurisdiction if it determines
it is an inconvenient forum).
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M.L. and (b) Mother had limited means. Reasonable evidence supports the
juvenile court’s findings, so we affirm.

I. The Standards of Proof and Review

¶13 A parent’s right to the companionship, care, custody,
management, and association of her children is a fundamental,
constitutionally protected right. Michael M. v. Ariz. Dep’t of Econ. Sec., 202
Ariz. 198, 200 ¶ 8 (App. 2002). These fundamental rights do not evaporate
simply because the natural parent has not been a model parent. Id.
Termination of a parent-child relationship should be considered only as a
last resort when concerted efforts to preserve the relationship have failed.
See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 253–54 ¶ 39 (2000)
(Zlaket, J., concurring in part) (noting several cases citing this central rule).

¶14 Although a parent’s right to custody and control of her own
child is fundamental, it is not absolute. Id. at 248–49 ¶¶ 11–12. Severance of
a parental relationship may be warranted where the State or an interested
party proves at least one statutory ground under A.R.S. § 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). After finding the
presence of a ground under § 8-533 by “clear and convincing evidence,” the
court must also find that severance is in the child’s best interest by a
preponderance of the evidence. Id. at 288 ¶ 42.

¶15 On review, we “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, and only inquire whether adequate evidence sustains the court’s
ruling. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App.
2004).

II. The Court Adequately Considered the Social Study
Recommending Termination of Mother’s Parental Rights.

¶16 Father argues the juvenile court erred by not adopting the
social study’s recommendation to terminate Mother’s parental rights to
M.L. Although A.R.S. § 8-536(A) requires the court to consider the
recommendation of a social study (unless the requirement is waived under
subsection (C)), the statute does not require the court to follow the
recommendation. Indeed, such a requirement would be improper, as the
court cannot delegate its duty to make an independent determination based
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on the evidence. See Arizona Rules of Procedure for the Juvenile Court
353(h); Alexander M. v. Abrams, 235 Ariz. 104, 108 ¶ 19 (2014) (holding
juvenile court impermissibly delegated its duty to independently
determine whether reunification was in children’s best interests to a state
agency).

¶17 Even so, Father contends “it was error for the Court to simply
discount the [social study] because the author did not believe there was ‘just
cause’ for Mother’s absence.” However, the court recognized “that the
social study . . . supports termination.” Its further comments show it
carefully considered the social study and the corresponding testimony from
its author but ultimately came to a different result. On this record, we find
no error.

III. Issue Preclusion Did Not Prevent the Juvenile Court from Making
Findings in this Case.

¶18 Father argues the juvenile court was barred from making
certain factual findings because the Colorado family court previously
decided the same issue.4 For instance, the Arizona juvenile court found
Father “disturbed an improving situation” when he relocated. Father
asserts that because the Colorado court found Mother was progressing in
her parenting skills and still allowed him to move, the Arizona juvenile
court’s finding is contradictory to the Colorado order. But to be applicable,
the doctrine of issue preclusion requires the first court that hears an issue
to apply an equal or greater burden of proof than the second court. See
Crosby-Garbotz v. Fell in & for Cnty. of Pima, 246 Ariz. 54, 59–60 ¶¶ 20, 26
(2019) (holding state could not re-litigate issue under a higher, criminal
burden of proof after losing the same issue under a lower, civil burden of
proof). And the precluded issue must be precisely the same as the issue
resolved in the previous litigation. State v. Whelan, 208 Ariz. 168, 172 ¶ 13
(App. 2004).

¶19 Here, the Colorado court permitted Father’s relocation after
analyzing factors under Colo. Rev. Stat. § 14-10-129(2)(c). However,
Arizona has a different set of factors, outlined in A.R.S. § 25-408(I).

4 Although Father’s brief uses the label res judicata (claim preclusion),
the substance of his argument raises collateral estoppel (issue preclusion).
It is clear the Colorado court that determined the parents’ family case and
the Arizona juvenile court that addressed only the termination petition
were not deciding the same claims. See Circle K. Corp. v. Indus. Comm’n of
Ariz., 179 Ariz. 422, 425–26 (App. 1993).
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Therefore, issue preclusion does not prevent an Arizona court from making
findings regarding issues about which a Colorado court has already made
findings. See Crosby-Garbotz, 246 Ariz. at 59–60 ¶¶ 20, 26.

¶20 Moreover, the Arizona and Colorado courts were deciding
two different issues. The Colorado court analyzed factors to determine
whether to modify the previous family court orders. See Colo. Rev. Stat. §
14-10-129(2)(c). Part of that analysis required it to determine the impact the
move would have on Mother’s parenting time and her relationship with
M.L. Id. Nevertheless, nowhere in the court’s findings did it determine the
move would not disturb that relationship. At most, the Colorado court
found it could fashion a reasonable parenting time schedule that would
give Mother the opportunity to maintain a relationship with M.L. The
Arizona juvenile court, on the other hand, decided whether Mother had just
cause for failing to maintain that relationship. It therefore did not err in
considering, among other evidence, the actual effect Father’s move—and
his nonadherence to the family court orders—had on Mother’s relationship
with M.L. and making the finding to which Father objects.

¶21 Father also challenges the juvenile court’s finding he acted
with hostility towards Mother by alleging numerous times she was using
drugs in Colorado, though she always tested negative. He argues that
because the Colorado court did not expressly find Father’s actions hostile
or raise it as a concern in the family case, the juvenile court is somehow
precluded from making such a finding in this case. At most, the Colorado
court found the parents were working well together in adjusting parenting
time when necessary. This is not synonymous with a finding that Father
was never hostile towards Mother, especially when the two courts were
deciding two different claims five years apart. Issue preclusion does not
apply here, and we discern no error on that basis.

IV. Reasonable Evidence Supports the Juvenile Court’s Findings.

¶22 Finally, Father argues insufficient evidence supports the
juvenile court’s findings. Specifically, Father challenges the court’s
determinations Mother had just cause for failing to maintain a normal
relationship with M.L. and Mother’s limited means.

A. Mother Had Just Cause for Failing to Maintain a Normal
Parental Relationship with M.L.

¶23 Parents may forfeit their parental rights if they abandon their
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,
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including providing normal supervision.” A.R.S. § 8-531(1). Abandonment
is measured by a parent’s conduct, not her subjective intent. Michael J., 196
Ariz. at 249–50 ¶ 18. The court must consider whether the 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. Additionally, a parent must
act persistently to pursue the parent-child relationship, despite any
obstacles that may arise. Id. at 250 ¶ 22.

¶24 Failure to maintain a normal parent-child relationship
without just cause for a period of six months is prima facie evidence and
creates a rebuttable presumption of abandonment. A.R.S. § 8-531(1). A
parent may rebut that presumption by showing just cause, including that
the other parent “persistently and substantially restricted [her] interaction
with [her] child.” Calvin B. v. Brittany B., 232 Ariz. 292, 293 ¶ 1 (App. 2013).
In Calvin B., the parents obtained a family court order that made the mother
the primary parent but allowed father “liberal [supervised] visitation as his
schedule allows.” Id. at 294 ¶ 2. The mother then limited the father’s
parenting time and nullified his attempts to seek redress in court by
obtaining protective orders against him. Id. at 294–95 ¶¶ 3–8. Eventually,
she ended the visits altogether and ignored father’s requests for parenting
time in violation of the order. Id. at 295–96 ¶¶ 8–10, 14. We held that a parent
“who has persistently and substantially restricted the other parent’s
interaction with their child may not prove abandonment based on” the
other parent’s “limited involvement with the child.” Id. at 293–94 ¶ 1.

¶25 Here, Father points to the period of two years where Mother
made no efforts to maintain her relationship with M.L. But the court must
consider all the circumstances in a case, including those existing at the time
of trial. See In re Appeal in Pima Cnty. Juv. Severance Action No. S-114487, 179
Ariz. 86, 96 (1994); cf. Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330
¶ 22 (App. 2007).

¶26 After considering all the evidence, the court found that
because “Father waged a relentless effort to place obstacles in Mother’s
parenting path,” Mother demonstrated just cause and rebutted the
statutory presumption of abandonment. Ultimately, the court found that
due largely to Father’s interference with Mother’s efforts to continue a
relationship with M.L., he had failed to prove abandonment by clear and
convincing evidence. Reasonable evidence supports the court’s findings.

¶27 Mother is a single parent of multiple children and testified
without contradiction that her employment generally consists of working

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at grocery and department stores. Notwithstanding her limited means,
Mother established a long-standing relationship with M.L. She was M.L.’s
primary parent for about three years until the First Modification changed
that arrangement. Nevertheless, Mother consistently exercised her
parenting time until Father and M.L. moved to Arizona. And despite
limited financial means, Mother consistently fought for her relationship
with M.L. in the Colorado family court, eventually declaring bankruptcy
due to her accumulated legal fees.

¶28 The Colorado court allowed Father to relocate M.L. based on
his own representations that he could regularly return to Colorado. Indeed,
the Colorado family court crafted the Second Modification order
specifically to give Mother “the opportunity to maintain [her] relationship
with” M.L. and ordered Father to give Mother “at least a weekend a month”
of parenting time by returning with the child to Colorado. But after Father
moved to Arizona, he did not comply with that order, depriving Mother of
her monthly in-person parenting time for almost four years. Additionally,
during one of his few trips back, Father wrongfully limited her parenting
time by refusing her the full weekend. Although he never notified Mother
of any further trips to Colorado, Father stated to the social study author that
he returns there about six times a year to visit his family.

¶29 Once Father denied visits, Mother’s next best option for
contact was video calls, which she attempted numerous times. During some
of those times, Father stated he could not get the videos to work. Mother
also had trouble getting the videos to work.

¶30 Even at that, Mother did not stop trying to maintain her
relationship with M.L., trying phone calls with five-year-old M.L. through
July 2019.5 Mother testified that speaking to M.L. over the phone “was hard
because [the child] did not know who she was speaking with, despite
[Mother’s] best efforts to help [her] understand.” Indeed, the juvenile court
cited Mother’s testimony that when she would call, Father would refer to
her as “aunt” rather than mother, a violation of the First Modification.
Although Father disputes this, Mother’s testimony is sufficient to support
the finding. See Jesus M., 203 Ariz. at 282 ¶ 12 (“The resolution of such
conflicts in the evidence is uniquely the province of the juvenile court as the
trier of fact; we do not re-weigh the evidence on review.”).

5 Father testified that Mother called M.L. six times in 2018, but the
record indicates she asked for contact at least twelve times.

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¶31 Further, from May 2018 to May 2019, Mother made various
requests to see M.L. in-person over summers and at Christmas.6 During one
of these requests, Father refused to allow Mother to pick up M.L. until she
paid her share of previous Colorado trips.7 The Second Modification does
not explain what happens if Mother fails to pay her 15% of travel costs, but
as the court found, Father’s remedy is not to withhold parenting time. In
any event, Father refused money Mother offered him. Finally, Father never
consulted Mother about any major decisions for the child, as the Second
Modification required.8

¶32 Under these circumstances, Mother stopped calling M.L. or
communicating with Father about her until after September 2021. Father
argues “[t]he burden to act as a parent rests with the parent, who should
assert his legal rights at the first and every opportunity.” Michael J., 196
Ariz. at 251 ¶ 25 (citing S-114487, 179 Ariz. at 98). Though the principle is
generally true, S-114487 is distinguishable on its facts. In S-114487, an
unwed father had not shown he had established a parental relationship with
his newborn child. S-114487, 179 Ariz. at 98. By contrast here, Mother had
a years-long relationship with M.L. until Father chipped away at that
foundation by wrongfully withholding parenting time.

¶33 Indeed, Father’s breach of the Colorado family court orders is
prodigious. Had he complied, Mother would have had at least monthly
opportunities to visit and maintain her relationship with M.L. As Mother
testified, maintaining a strong bond with her five-year-old child over the
phone rather than in person was itself difficult. And here, Father increased
that difficulty by referring to Mother as “aunt,” so M.L. did not know who
she was talking to. Given Mother’s limited financial means, she had few

6 When Mother asked Father if he was bringing M.L. for the summer,
Father replied, “You have to come get her it’s your time.” The Second
Modification does not resolve this issue, but the First Modification states,
“The party whose parenting time is starting will be responsible for the
transportation of the child.” Nonetheless, the Second Modification made
Father responsible for 85% of the costs of this proposed travel.

7 In this same exchange, Father also incorrectly claimed the parents
shared summers and that it was his summer with M.L.
8 After September 2018, the parents again shared joint legal decision-
making authority. But Father did not consult Mother on any decisions
before or after the reversion.
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options, but the court found credible her testimony that if she had the
resources, she would have exercised her parenting time and sought redress.

¶34 True, Mother might have continued her efforts to contact M.L.
during the two-year period of estrangement, but in the face of continual
and active opposition, a parent’s efforts need not be perfect. See Calvin B.,
232 Ariz. at 293–94 ¶¶ 1, 6 (finding persistent and substantial interference
though father delayed completing a court-ordered parenting class and did
not pay child support). When Mother stopped reaching out, Father had
already denied her in-person parenting time for almost two years and had
relegated her to the more distant role of “aunt” by misleading M.L. as to
Mother’s identity. Moreover, the record suggests further efforts during this
time would have been futile because Father denied Mother’s renewed
efforts at contact with M.L. During this time, Mother asked Father to bring
M.L. to Colorado as the order required, set up video visits, phone calls, send
pictures, send messages of love to M.L., and to allow her parenting time
when she visited Arizona. Father rejected these requests and refused to
communicate with her further, directing her to speak to his attorney. Thus,
the record shows Father has repeatedly violated court orders in an effort to
isolate M.L. from Mother. Considering Father’s active, substantial, and
persistent interference with Mother’s parenting time and of her other efforts
to maintain a relationship with M.L., we find no error in the juvenile court’s
determination that Father failed to prove abandonment by clear and
convincing evidence.

¶35 Nevertheless, Father contends the court erred by focusing
solely on his communication with Mother after petitioning for termination.
The court’s order is thorough and shows the court considered all the
evidence, not just communication after the petition. And, as discussed
above, Father’s wrongful withholding of parenting time began years before
he petitioned to terminate Mother’s parental rights. Nor does Father
explain why petitioning to terminate Mother’s rights justifies withholding
her parenting time.

¶36 Accordingly, reasonable evidence supports the court’s
findings that Father’s actions constitute just cause for Mother’s failure to
maintain a relationship with M.L.

B. Mother’s Limited Means

¶37 The juvenile court found “Mother is of limited means while
Father is decidedly situated in the economic middle class” and considered
this discrepancy while making its abandonment determination. Father

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challenges the court’s findings that Mother was of “limited means” and
unable to provide M.L. reasonable support. Again, his argument is
predicated on sufficiency of the evidence to support the court’s finding.

¶38 There is some indication in the record Mother’s hourly wages
had improved since entry of the Second Modification. Father indicates
Mother occupies an upscale rental home and could afford to make a trip to
Arizona among other evidence Mother is of greater, not lesser, means since
the Second Modification. However, most of the expenditures Father points
to, such as Mother’s rental home in Colorado and her trip to Arizona, were
paid for by friends.

¶39 Mother’s uncontroverted testimony is she works only part
time and attends school. Father suggests Mother makes more than the
$1,820 monthly earnings found by the juvenile court. But her current wage
with part-time hours equates to even less than that. And neither evidence
nor argument before the juvenile court established that Mother’s return to
school imperiled M.L. financially or was so unreasonable as to require
attribution of full-time wages due to underemployment. See Little v. Little, 193 Ariz. 518, 522–23 ¶ 13 (1999) (juvenile court must consider a range of
factors in determining whether a decision to leave employment is
reasonable, and therefore, constitutes underemployment). And because
reasonable evidence supports the court’s findings, we will not reweigh that
determination on appeal. Mary Lou C., 207 Ariz. at 47 ¶ 8. We therefore
perceive no error.

CONCLUSION

¶40 We affirm.

¶41 As the prevailing party on appeal, we award Mother her
taxable costs upon compliance with Arizona Rules of Civil Appellate
Procedure 21.

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

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