Vincent G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VINCENT G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, C.G.1, Appellees.

No. 1 CA-JV 18-0110
FILED 8-23-2018

Appeal from the Superior Court in Maricopa County
No. JD 32663
The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee, Department of Child Safety

1 Appellee A.O. is not a party to this appeal. It is therefore ordered
amending the caption as reflected in this decision. The above referenced
caption shall be used on all further documents filed in this appeal.

VINCENT G. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 Vincent G. (“Father”) appeals the termination of his parental
rights to his child, C.G. (“Child”). He argues the superior court erred by
finding sufficient evidence to justify termination based on three statutory
grounds—abandonment, nine months’ out-of-home placement, and fifteen
months’ out-of-home placement—and by finding termination was in the
Child’s best interests. We are unpersuaded by Father’s arguments and
affirm the court’s termination order based on the ground of abandonment.2

FACTS AND PROCEDURAL BACKGROUND

¶2 Before the birth of his Child, Father was arrested and charged
with two counts of sexual abuse. Father pled guilty to attempted sexual
abuse and was placed on supervised probation for 10 years. The court
required Father to abide by special conditions of probation as a sex
offender, including requiring prior approval before having contact with
any children, even relatives. Father’s probation officer indicated the
restrictions could be lifted, but only if Father completed a course of
treatment and risk assessments.

¶3 Mother gave birth to Child in January 2016.3 Several months
later, the Department of Child Safety took custody of the Child and filed a
dependency petition alleging Father had neglected Child by failing to
establish paternity, providing no support, and that his whereabouts were
unknown. DCS unsuccessfully tried to locate Father and eventually placed
Child with paternal grandmother.

2 Because we affirm the superior court’s termination order on the
ground of abandonment, we need not address Father’s contentions with the
additional grounds found by the court of both nine and fifteen months’ out-
of-home placement. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
251, ¶ 27 (2000).
3 Mother is not a party to this appeal.

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VINCENT G. v. DCS, et al.
Decision of the Court

¶4 In August 2016, DCS learned that Father had participated in
a paternity test a month earlier, the results of which indicated that he was
Child’s biological father. In September, a DCS case manager informed
Father he must begin various services before he would be permitted to
contact his Child. At a mediation in November, Father agreed to participate
in substance-abuse testing, parent-aide services, and parenting classes, and
agreed to visitation with his Child “[a]t DCS discretion[] [and] in
conjunction with [the] terms of [his] probation.” Shortly thereafter, the
court found the Child dependent as to Father and set the case plan as family
reunification, but Father ultimately failed to fully follow through on his
treatments and assessments, infra ¶ 12.

¶5 After the Child had been in care for over 10 months, DCS
moved to terminate Father’s parental rights, alleging both abandonment
and Father’s refusal to remedy the circumstances causing his Child to be in
an out-of-home placement. At the initial termination hearing in May 2017,
Father denied the allegations, and the court ordered DCS to refer Father for
parenting and domestic-violence classes.

¶6 By the time of the termination hearing in February 2018, the
Child had been out of the home for 21 months and Father had still never
met her. DCS presented evidence that Child’s placement was meeting all of
her needs and that her paternal grandmother was willing to adopt Child.
After considering the evidence presented, the superior court issued an
order terminating Father’s parental rights to his Child.

DISCUSSION

¶7 As the trier of fact in a termination proceeding, the superior
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts.” Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citation omitted).
We therefore view the evidence and all reasonable inferences in the light
most favorable to affirming the superior court’s order, Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002), and will reverse only if no
reasonable evidence supports its factual findings, Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016). To terminate parental rights, the
superior court must find at least one statutory ground under Arizona
Revised Statutes (“A.R.S.”) § 8-533 by clear and convincing evidence, A.R.S.
§ 8-537(B), and find by a preponderance of the evidence that termination is
in a child’s best interests, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).

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VINCENT G. v. DCS, et al.
Decision of the Court

I. Abandonment

¶8 A parent abandoning a child is evidence sufficient to justify
termination of the parent-child relationship. A.R.S. § 8-533(B)(1). Under
A.R.S. § 8-531(1), the ground of abandonment requires multiple findings,
including that a parent has failed to provide reasonable support, maintain
regular contact, and provide normal supervision:

“Abandonment” means 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.

(Emphasis added). Questions of abandonment are questions of fact to be
resolved by the superior court. Matter of Appeal in Maricopa County Juvenile
Action No. JS-500274, 167 Ariz. 1, 4 (1990). The court’s determinations
concerning reasonable support, regular contact, and normal supervision
“will depend on the circumstances of the particular case.” Kenneth B. v. Tina
B., 226 Ariz. 33, 37, ¶ 19 (App. 2010). Abandonment is not measured by a
parent’s subjective intent, but rather by the parent’s conduct. Michael J., 196
Ariz. at 249-50, ¶ 18.

¶9 The superior court found that Father had abandoned his
Child by failing to maintain a normal parental relationship, without just
cause, and made all three of the findings below. First, the court found that
Father failed to provide reasonable support. While Father claims he did
help provide the placement with financial assistance, he produced no
documentation to that effect. Next, the court found he failed to maintain
regular contact, noting he had sent no cards, gifts, or letters. Finally, the
court found Father had failed to provide normal supervision, pointing out
that he had made no contact whatsoever with his Child. Father argues that
he could neither maintain regular contact nor provide normal supervision,
however, because the terms of his probation prevented him from doing
so—constituting just cause for his failure to maintain a normal parent-child
relationship.

¶10 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

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VINCENT G. v. DCS, et al.
Decision of the Court

legal rights to the extent necessary.” Matter of Appeal in Pima County Juvenile
Severance Action No. S-114487, 179 Ariz. 86, 97 (1994); see also Michael J., 196
Ariz. at 251, ¶ 25 (“The burden to act as a parent rests with the parent, who
should assert his legal rights at the first and every opportunity.”).

¶11 Father’s initial probation terms prevented him from
contacting his Child, but Father was aware that this restriction could be
lifted if he completed certain items of treatment and assessments, supra ¶ 2.
Father, however, neither acted persistently to complete these requirements
nor vigorously asserted his legal rights to Child; rather, Father made only
minimal efforts to alter the terms of his probation so that he could
communicate with his Child.

¶12 Father has never met his Child. Although she was removed
from Mother’s custody in May 2016, Father waited until July to take a
paternity test and was not in contact with DCS until September. Supra
¶¶ 3-4. Further, Father testified at trial that he was only about “40 percent
complete” with his assigned sex offender treatment. Father also testified
that he was aware he needed to pass polygraph tests related to his sex-
offender treatment before his probation officer would discuss contact with
his Child. Father, however, attempted a polygraph test only once—in July
2017—and did not pass it. Additionally, DCS referred Father to domestic-
violence counseling in June 2017, but Father did not begin to attend until
over six months later.

¶13 Reasonable evidence supports the superior court’s finding
that Father abandoned his Child, and we affirm the termination of Father’s
parental rights under A.R.S. § 8-533(B)(1).

II. Best Interests

¶14 Father argues the superior court had insufficient evidence to
find that termination was in his Child’s best interests. To establish that
termination is in the best interests of a child, the superior court must find
“either that the child will benefit from termination of the relationship or
that the child would be harmed by continuation of the relationship.” James
S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998). “Evidence
of an existing adoption plan can be considered a benefit to the child.” Id.

¶15 Here, the record indicates that the Child was placed in the
home of her paternal grandmother, supra ¶ 3, and that the placement was
meeting all of her needs. Her grandmother was willing to adopt her and
she was otherwise adoptable. Thus, there was reasonable evidence
supporting the superior court’s finding that termination would benefit the

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VINCENT G. v. DCS, et al.
Decision of the Court

Child by “further[ing] the plan of adoption” and providing her “with
permanency and stability.” We find no error in the superior court’s finding
that termination was in the Child’s best interests.

CONCLUSION

¶16 Because the superior court had reasonable evidence to find
that Father had abandoned his Child and that termination was in her best
interests, we affirm.

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

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