A.L. v. J.B. G.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

A.L., Appellant, 1

v.

J.B., G.L., Appellees.

No. 1 CA-JV 18-0234
FILED 12-27-18

Appeal from the Superior Court in Mohave County
No. S8015SV201700021
The Honorable Doug Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Eric J. Engan, P.C., Kingman
By Eric J. Engan
Counsel for Appellees

1 We have amended the caption as reflected above. This caption shall
be used on all further documents filed in this appeal.

A.L. v. J.B., G.L.
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 A.L. (“Father”) appeals the termination of his parental rights
to his child, G.L. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In March 2015, J.B. (“Mother”) gave birth to G.L. At the time
of G.L.’s birth, Father was incarcerated. Shortly after G.L.’s birth, Mother
moved to Arizona. During the first six to nine months of G.L.’s life, Mother
brought G.L. to the prison on occasion to see Father, and Father would call
Mother to speak to G.L. Mother and Father’s relationship deteriorated soon
after, and Mother stopped bringing G.L. to visit Father at the prison.

¶3 When Father was released from prison he was deported to
Mexico, but legally returned to the United States in October 2017. In
December 2017, Mother petitioned to terminate Father’s parental rights to
G.L. Mother argued Father abandoned G.L. pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(1). Mother alleged that after September
2015, Father had little to no contact with G.L. Mother also alleged that
Father never paid any support for G.L., or mailed G.L. letters, cards, or gifts.
Father contested the petition, and the superior court held a severance
hearing.

¶4 During the hearing, the court took evidence and heard
testimony from Mother, Mother’s boyfriend, and Father concerning
Father’s contact and relationship with G.L. since G.L.’s birth. At the end of
the hearing, the court entered findings on the record that Father had
abandoned G.L. under A.R.S. § 8-533(B)(1) and that terminating his
parental rights was in G.L.’s best interests. The court found Mother’s
testimony to be more credible than Father’s. Regarding the abandonment
issue, the court found: (1) Father failed to maintain regular contact with G.L.
since G.L.’s birth; (2) Father never sent support, letters, cards, or gifts to
G.L.; (3) Father had hardly any contact with G.L. for over six months; and
(4) Father’s minimal efforts to establish a relationship with G.L. after he

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A.L. v. J.B., G.L.
Decision of the Court

returned to the United States did not overcome his prior abandonment of
G.L. In deciding whether terminating Father’s parental rights was in G.L.’s
best interests, the court concluded that Father’s current work as a
confidential informant placed G.L. at risk of harm. Specifically, the Court
found that G.L. could become a target for criminal organizations seeking
reprisals against Father, and that Father’s work might place G.L. near
dangerous drug and weapon transactions.

¶5 The court later issued a written order reflecting its findings
and terminating Father’s rights to G.L. under the abandonment ground.
Father timely appealed, and we have jurisdiction pursuant to Article 6,
Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A),
12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶6 We have long recognized “that the right to the control and
custody of one’s children is a fundamental one.” Michael J. v. ADES, 196
Ariz. 246, 249, ¶ 11 (2000) (quoting Maricopa County Juv. Action No.
JS-500274, 167 Ariz. 1, 4 (1990)). “The right of a parent to custody of his
child, however, is not absolute.” Id. at 249, ¶ 12. To terminate a parent-child
relationship, the superior court must find by clear and convincing evidence
that at least one statutory ground for severance under A.R.S. § 8-533(B)
exists. Alma S. v. DCS, 245 Ariz. 146, 149, ¶ 8 (2018). The court must also
find severance is in the child’s best interests by a preponderance of the
evidence. Id. We review the court’s severance determination for an abuse of
discretion and will affirm unless no reasonable evidence supports the
court’s findings. Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). The
superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).

A. Sufficient Evidence Supports the Superior Court’s Finding That
Father Abandoned G.L.

¶7 Father argues Mother failed to prove by clear and convincing
evidence that he abandoned G.L. We disagree.

¶8 Section 8-533(B)(1) provides that the superior court may
terminate the parent-child relationship if it finds “that the parent has
abandoned the child.” “Abandonment” means:

the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing

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A.L. v. J.B., G.L.
Decision of the Court

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 thus measured by the parent’s actual
lack of efforts to maintain the parent-child relationship, and not their
subjective intent or desire to abandon the child. Michael J., 196 Ariz. at 249,
¶ 18. “[T]he statute asks 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.

¶9 When circumstances such as imprisonment “prevent
the . . . father from exercising traditional methods of bonding with his child,
he must act persistently to establish the relationship however possible and
must vigorously assert his legal rights to the extent necessary.” Pima County
Juv. Severance Action No. S-114487, 179 Ariz. 86, 97 (1994). “[I]ncarceration
alone . . . does not justify a [parent’s] failure to make more than minimal
efforts to support and communicate with [that parent’s] child.” Michael J.,
196 Ariz. at 250, ¶ 21.

¶10 Here, the superior court found Father had failed to maintain
even minimum contact with G.L. for at least six months, and that the period
of total abandonment of the parent-child relationship likely extended closer
to nine months. The court also found: (1) Father made, at best, minimum
attempts to maintain contact with G.L. during his incarceration; (2) Father,
upon his release and deportation to Mexico, made some efforts to contact
G.L., but that those efforts were sporadic until October 2017; (3) Father has
never provided financial support or gifts for G.L., despite having the ability
to send a small amount of support or a gift since at least October 2017; and
(4) Father’s marginally increased efforts to contact G.L. and assert his
parental rights after he became aware of Mother’s intent to terminate
Father’s parental rights were not enough to overcome his abandonment of
G.L. Based on these findings, the court concluded Mother proved by clear
and convincing evidence that Father had abandoned G.L. pursuant to
A.R.S. § 8-533(B)(1).

¶11 Reasonable evidence supports these findings. At the
severance hearing, Mother testified Father has never sent G.L. gifts, cards,
letters, or financial support. Mother testified Father sought out and

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maintained some in-person and over-the-phone contact with G.L. in the
first year and a half of G.L.’s life, but that his communication with Mother
and G.L. soon trailed off. From August or September 2016 until after
Father’s release from prison and deportation to Mexico in late March or
early April 2017, Father made no attempts to contact Mother or G.L. Mother
testified that once Father arrived in Mexico around April 2017, he
reinitiated contact with her, but only to engage in small talk and request
favors from her, not to earnestly discuss or facilitate contact with G.L.
Father only began to request contact with G.L. after Mother made Father
aware of her intent to have another man adopt G.L. Mother testified Father
did not send G.L. letters, gifts, or financial support even after he began to
express a greater interest in resuming communication with G.L. In sum,
Mother’s testimony established that after the first year and a half of G.L.’s
life, Father made little or no effort to maintain his relationship with G.L.
Father did not send G.L. cards, gifts, or letters; he did not provide G.L. with
any financial support; and for at least six months, he made no attempt to
contact G.L. at all.

¶12 Father disputed Mother’s account during his own testimony.
Father explained he sent cards, pictures, and drawings to G.L. during his
incarceration; he indicated he sent text messages offering to support G.L. as
soon as he was able; and during his incarceration he never stopped calling
Mother to attempt to facilitate his relationship with G.L. Father also claimed
Mother had selectively introduced portions of text-message conversations
to support her story, and that the phone records from the prison where he
was incarcerated would show that his attempts to contact G.L. never
lapsed. But Father did not supply the court with either the rest of the
text-message conversations with Mother or phone records from the prison.
By failing to introduce the evidence he asserted would support his version
of events, Father left the court to determine whether Father’s assertions
concerning these issues were credible based on his testimony alone. The
superior court found Mother’s version of events to be more credible and
directed its findings accordingly. On this record, we cannot say the court
abused its discretion by making that determination, or in ultimately finding
that Mother had met her statutory burden of proving Father had
abandoned G.L. pursuant to A.R.S. § 8-533(B)(1).

¶13 Citing Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013), Father
contends the superior court erred by failing to consider the impact of
Mother’s alleged efforts to prevent Father from maintaining his relationship
with G.L. But Father’s reliance on Calvin B. is misplaced. In Calvin B., we
reversed an order terminating a father’s parental rights under the
abandonment ground because he had consistently attempted to assert his

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A.L. v. J.B., G.L.
Decision of the Court

rights despite the hurdles placed in his path by the child’s mother. See id. at
297, ¶¶ 21–26. Here, the primary obstacles Father faced in maintaining his
relationship with G.L. were of his own making. Mother played no role in
Father’s incarceration, deportation, or alleged lack of ability to support G.L.
Nor is Mother responsible for Father’s resistance to seek legal
decision-making and parenting time. The record contains no evidence that
Mother erected the types of barriers to Father’s ability to parent G.L. at issue
in Calvin B.

B. Sufficient Evidence Supports the Superior Court’s Determination
That Terminating Father’s Parental Rights Was in G.L.’s Best
Interests.

¶14 Father also argues there is insufficient evidence to support the
superior court’s conclusion that terminating Father’s parental rights was in
G.L.’s best interests.

¶15 At the best-interests stage, we “presume that the interests of
the parent and child diverge because the court has already found the
existence of one of the statutory grounds for termination by clear and
convincing evidence.” Alma S., 245 Ariz. at 150, ¶ 12 (quoting Kent K. v.
Bobby M., 210 Ariz. 279, 286, ¶ 35 (2005)). The court’s primary concern
during the best-interests inquiry is the stability and security of the child.
Demetrius L. v Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016). “[T]ermination is in the
child’s best interests if either: (1) the child will benefit from severance; or (2)
the child will be harmed if severance is denied.” Alma S., 245 Ariz. at 150,
¶ 13. “Courts must consider the totality of the circumstances existing at the
time of the severance determination.” Id. at 150–51, ¶ 13.

¶16 Here, the superior court concluded terminating Father’s
parental rights to G.L. was in the child’s best interests because of the risk of
harm to G.L. Specifically, the court found that Father’s alleged work
informing on criminal organizations he was once affiliated with created an
ongoing threat of harm to G.L. The court identified two particularly acute
risks posed by Father’s informant work: (1) G.L. could become a target
should those organizations seek reprisals against Father; and (2) Father’s
admitted involvement in gun sales and drugs sales, even as an informant,
“would expose [G.L.] to danger.”

¶17 Reasonable evidence supports these findings. Father testified
he currently works with multiple law enforcement agencies to inform on
the operations of certain criminal organizations. Father acknowledged
throughout his testimony that informant work was dangerous. Although

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A.L. v. J.B., G.L.
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Father asserted it was no more dangerous than “what law enforcement
does,” and he was “not concerned that way,” he also testified that he lives
far away from his work because “[he] wouldn’t want anything to happen
to [his other children] and [his] mother.” Regarding his contacts with
weapons sales and drug sales, Father testified part of his work involved
acquiring “samples” off the streets, and that those samples could include
items such as guns, grenades, heroin, and methamphetamine. Father also
claimed that he gets paid by the bust, and that these operations could
encompass situations ranging from an attempted sale of “10 pounds of
meth” to a million-dollar weapons deal. Accordingly, because reasonable
evidence supports the superior court’s finding that continuing Father’s
parental relationship with G.L. presented an ongoing risk of harm to the
child, we hold the superior court did not abuse its discretion by finding that
terminating Father’s parental rights was in G.L.’s best interests.

ATTORNEY’S FEES AND COSTS

¶18 Mother requests an award of attorney’s fees and costs.
Because Mother cites no authority to support the request, she is not entitled
to an award of attorney’s fees. See ARCAP 21(a)(2); Bed Mart, Inc. v. Kelley, 202 Ariz. 370, 375, ¶ 24 (App. 2002). However, as the prevailing party,
Mother is entitled to her costs on appeal upon compliance with Arizona
Rule of Civil Appellate Procedure 21.

CONCLUSION

¶19 For the foregoing reasons, we affirm the termination of
Father’s parental rights to G.L.

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

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