Dixie J. v. John S., A.J.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIXIE J., Appellant,

v.

JOHN S., A.J., Appellees.

No. 1 CA-JV 15-0374
FILED 6-16-2016

Appeal from the Superior Court in Yavapai County
No. V1300SV201580004
The Honorable Anna C. Young, Judge

AFFIRMED

COUNSEL

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

Paul Tutnick, Attorney at Law, Sedona
By Paul Tutnick
Counsel for Appellee John S.
 DIXIE J. v. JOHN S., A.J.
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.

C A T T A N I, Judge:

¶1 Dixie J. (“Mother”) appeals from the superior court’s ruling
terminating her parental rights to her daughter, A.J. For reasons that
follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 A.J. was born in July 2012. Mother and A.J.’s father, John S.
(“Father”), were no longer in a relationship at that time, and A.J. lived with
Mother in Cottonwood for approximately the next year and a half.

¶3 In late 2013, Father petitioned for temporary emergency
custody of A.J., citing concerns about substance abuse by Mother and
domestic violence against Mother by her then-current boyfriend with A.J.
present. In December 2013, the family court granted Father sole legal
decision-making and primary physical custody of A.J., with Mother to
receive supervised parenting time for four hours per day during the week
and for six hours per day every other weekend. At Mother’s request, the
court specified that her mother (“Maternal Grandmother”) was to supervise
the visits “at a location agreed upon by the Parties.” The final order further
required Mother to pay monthly child support.

¶4 Despite the order granting Mother daily parenting time, she
only visited A.J. approximately five times in the two years after the
December 2013 custody order. She moved to Bullhead City (three or four
hours away) in March 2014, and the distance made it more difficult to visit
A.J., particularly because she did not have a driver’s license or access to a
car. Mother’s last visit with A.J. was around April 2015, six months before
the October 2015 severance hearing.

¶5 Mother testified that Father had denied visits “several times.”
Father acknowledged denying one visit when Mother made a last-minute
request after two months without any contact with A.J. He explained that
A.J. suffered negative emotional effects after the inconsistent visits, and she
needed time to prepare for Mother’s parenting time. Father also refused

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Decision of the Court

Mother’s requests for unsupervised visits because they were contrary to the
court order.

¶6 Mother testified that, despite her best efforts, accommodating
everyone’s work schedules remained the biggest obstacle to consistent
visits. Mother noted that Maternal Grandmother worked as a caregiver for
an elderly couple during the time available for weekday visits, but Father
was unwilling to allow visits because Maternal Grandmother could not
provide adequate supervision for the visit while working. Maternal
Grandmother spent time with A.J. several hours every other weekend, and
Mother could have participated in those regular visits, but she did not do
so.

¶7 Over the two years following the December 2013 custody
order, Mother called A.J. only 10 to 12 times, the last time in June 2015. She
gave A.J. a few gifts, but she did not pay any child support even though she
was gainfully employed. At the October 2015 severance hearing, Mother
agreed that she had not had a normal parent–child relationship with A.J.
during the preceding 18 months.

¶8 Father filed a petition to terminate Mother’s parental rights
on grounds of abandonment, neglect, and chronic substance abuse. See
Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(1), (2), (3).1 After a contested hearing,
the superior court found severance warranted based on abandonment and
neglect. The court further found that severance would be in A.J.’s best
interests, basing its finding on testimony that Father and his fiancée had a
positive and stable relationship with A.J., and that the fiancée wanted to
adopt A.J. “as soon as possible” after their planned April 2016 wedding.
Mother timely appealed from the severance ruling, and we have
jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶9 Mother argues that the superior court erred by finding
grounds for severance based on abandonment and neglect and by finding
severance to be in A.J.’s best interests.

¶10 The superior court may terminate the parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance, and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8–533(B); Kent K. v.

1 Absent material revisions after the relevant date, we cite a statute’s
current version.

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Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the superior court’s
severance ruling for an abuse of discretion, deferring to the court’s
credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶11 Under A.R.S. § 8–533(B)(1), one statutory ground for
severance is abandonment, defined as:

the failure of a parent 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). Abandonment is measured by objective considerations,
based on the parent’s conduct, not her subjective intent. Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249–50, ¶ 18 (2000). The key criterion is
whether the parent, under the unique circumstances of the case, “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. at 249–50, ¶¶ 18, 20; see also
A.R.S. § 8–531(1).

¶12 Mother argues that the superior court’s abandonment finding
was not warranted in light of her efforts to maintain a parental relationship
with A.J. by calling, sending gifts, and visiting when she was able to do so.
But the evidence shows that Mother made at most minimal efforts to
support and communicate with A.J. See A.R.S. § 8-531(1). Over the course
of approximately two years, Mother visited A.J. only five times, called only
10 or 12 times, sent only a handful of gifts, and provided no child support.
By the time of the severance hearing, Mother had not seen A.J. for six
months and had not called for four months, and Mother acknowledged that
she had not had a normal parent-child relationship with A.J. for over 18
months. Although Mother’s relocation to Bullhead City made it difficult to
have more contact with A.J., Mother had an obligation to take appropriate
actions to maintain that relationship. See, e.g., Michael J., 196 Ariz. at 250, ¶
22. Moreover, Mother did not seek any modification of the custody order
to allow her more or different access to A.J. in light of her different
scheduling needs after relocation.

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¶13 Citing Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013),
Mother argues that Father unreasonably interfered with her efforts to
maintain a relationship with A.J. In Calvin B., 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 evidence that the
other has had only limited involvement with the child.” Id. at 293–94, ¶ 1.
In that case, the mother restricted the father’s contact to only minutes at a
time despite a dissolution decree calling for “liberal visitation,” then sought
two orders of protection, ignored father’s requests for visits, and contacted
police to prevent visits; the father meanwhile persistently requested visits,
and even sought and received a court order for parenting time, which the
mother violated by refusing contact. See id. at 294–95, 297, ¶¶ 2–8, 22–24.
Under those circumstances, we held that the mother could not rely on the
roadblocks she had created to produce an artificial abandonment despite
the father’s continued, substantial efforts to communicate with the child.
Id. at 297, ¶ 21.

¶14 Unlike in Calvin B., the record here does not reflect that Father
prevented Mother from fostering her relationship with A.J., and instead
supports the superior court’s conclusion that Mother failed to maintain
regular contact or provide any support. Father refused a supervised visit
only once. Mother moved to a different city (which as a practical matter
would have prevented exercising the daily visitation authorized by the
custody order), and despite weekly trips back to Cottonwood only
arranged a few visits with A.J. Mother testified that scheduling
complications (as opposed to intransigence by Father) were the primary
obstacle to consistent visitation, but as noted above, Mother did not seek to
modify the custody order to address those issues. Although Mother claims
Father unreasonably refused to allow visits while Maternal Grandmother
was working, the court reasonably accepted his explanation that Maternal
Grandmother could not adequately supervise the visits while primarily
focused on providing in-home care to others. Moreover, Mother knew
Maternal Grandmother did not work weekends (and that Maternal
Grandmother spent time with A.J. over the weekends), but Mother
nevertheless failed to participate in any weekend visits. Accordingly, the
superior court did not err by finding abandonment as grounds for
severance under A.R.S. § 8-533(B)(1) and -531(1).2

2 Because we affirm the court’s finding of abandonment, we need not
address the alternative ground of neglect. See Michael J., 196 Ariz. at 251, ¶
27.

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¶15 Mother further argues the court erred by concluding that
severance was in A.J.’s best interests. The best interests determination
assesses whether the child would benefit from severance or whether the
child would be harmed by continuing the parental relationship. Mary Lou
C., 207 Ariz. at 50, ¶ 19. Adoptability or a prospective adoption is one such
benefit that may, depending on the circumstances, support a best interests
finding in both public and private severance actions. Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 4–5, ¶ 16–17 (2016). Ensuring stability and security
for the child is “[o]f foremost concern.” Id. at 4, ¶ 15.

¶16 Mother argues that Father failed to show how continuing the
status quo would harm A.J., and that Father’s fiancée’s intent to adopt A.J.
was insufficient to show a benefit from severance. The testimony at the
severance hearing reflected that Mother’s inconsistent contact was a source
of instability for A.J. and that A.J. suffered negative emotional reactions
after visits with Mother, which supported the superior court’s finding that
continued contact would be detrimental to A.J.’s wellbeing. Moreover, the
evidence supported the court’s conclusion that A.J. was adoptable and that
there was a reasonable basis to believe that A.J. could be adopted following
Father’s marriage. As the court noted, A.J. had a positive and stable
relationship with Father’s fiancée and adoption by the fiancée would
ensure that A.J. enjoys a “safe, stable and loving home” in the future. See
id. at 5, ¶ 17. Accordingly, the superior court did not err by finding
severance to be in A.J.’s best interests, and therefore did not err by
terminating Mother’s parental rights.

CONCLUSION

¶17 The judgment is affirmed.

:AA

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