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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KARLA M.,
Appellant,

v.

LARRY J., BEATRICE J., E.M., K.M.,
Appellees.

No. 1 CA-JV 18-0421
FILED 4-4-2019

Appeal from the Superior Court in Maricopa County
No. JS19358
The Honorable Glenn A. Allen, Judge Pro Tempore

AFFIRMED

COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant

Law Office of Sarah J. Michael, Glendale
By Sarah J. Michael
Counsel for Appellees Larry J. and Beatrice J.
 KARLA M. v. LARRY J., et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Karla M. ("Mother") appeals the superior court's order
severing her parental rights to her twin daughters, born in 2010.1 Because
sufficient evidence supports the order, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In June 2014, Missouri's analog to the Arizona Department of
Child Safety petitioned a Missouri court to make the girls "ward[s] of the
court." In May 2015, the girls moved to Arizona to live with their maternal
grandmother and her husband (collectively, "Grandparents"), who took
custody of them through a guardianship approved by the Missouri court.
Mother continued to live in Missouri and did not visit the girls after the
guardianship began in 2015. During that period, Mother twice was
incarcerated, including a period from February to August 2017.

¶3 In December 2017, Mother filed a motion in Missouri to end
Grandparents' guardianship. The following month, Grandparents
petitioned the Arizona superior court to terminate Mother's parental rights
so they could adopt the girls. The Missouri court stayed ruling on the
motion to terminate the guardianship pending the ruling on the
termination petition in Arizona.

¶4 In their petition, Grandparents alleged, inter alia, that Mother
had abandoned the girls under Arizona Revised Statutes ("A.R.S.") section
8-533(B)(1) (2019).2 After Grandparents filed their petition, Mother asked
the court to allow her visitation with the girls, asserting Grandparents were
denying her contact with them. Grandparents objected to Mother's request,

1 The court's order also severed the rights of the girls' father, but his
rights are not at issue in this appeal.

2 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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Decision of the Court

explaining the girls had recently begun therapy "to address the issues
caused by the abandonment," and the court denied Mother's motion. The
court held a severance hearing in August 2018, at which Mother and
Grandparents testified. Later, the court ruled Mother had abandoned the
two girls and terminated her parental rights.

¶5 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A)
(2019), 12-120.21(A)(1) (2019), -2101(A)(1) (2019) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

DISCUSSION

¶6 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). A party seeking termination of a parent-child relationship must
prove the existence of a statutory ground under § 8-533(B) by clear and
convincing evidence, Michael J., 196 Ariz. at 249, ¶ 12, and, by a
preponderance of the evidence, that termination is in the best interests of
the child, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). The superior
court is the trier of fact in a termination proceeding. Jordan C. v. Ariz. Dep't
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We view the evidence and
reasonable inferences drawn from the evidence in the light most favorable
to sustaining the court's decision and will reverse only if no reasonable
evidence supports the court's factual findings. Id.

¶7 Under Arizona law, "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.

A.R.S. § 8-531(1) (2019).

¶8 In deciding whether a parent has abandoned a child under §
8-531(1), the superior court "should consider each of the stated factors –
whether a parent has provided 'reasonable support,' 'maintain[ed] regular
contact with the child' and provided 'normal supervision.'" Kenneth B. v.
Tina B., 226 Ariz. 33, 37, ¶ 18 (App. 2010). "[A]bandonment is measured not

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Decision of the Court

by a parent's subjective intent, but by the parent's conduct." Michael J., 196
Ariz. at 249, ¶ 18. When "circumstances prevent the . . . [parent] from
exercising traditional methods of bonding with [the] child, [the parent]
must act persistently to establish the relationship however possible and
must vigorously assert his legal rights to the extent necessary." Id. at 250, ¶
22.

¶9 Reasonable evidence supports the superior court's finding
that Mother abandoned the girls. Mother had sent only $30 to support the
girls and did not begin paying child-support arrears until March 2018, a few
months before the termination hearing. Moreover, at the time of the
hearing, Mother had not seen the girls since they moved to Arizona to stay
with Grandparents, more than three years before. Mother testified she tried
to visit the children three times, but Grandparents did not allow her to visit.
On the other hand, Grandparents testified Mother had asked to visit the
girls only twice during that time, once in December 2017 and once in June
2018. Grandparents testified they would have allowed Mother to visit the
girls in December 2017, but Mother chose not to visit after Grandparents
told her she could not stay at their home. In June 2018, the girls' counselor
advised against Mother visiting; Grandmother testified that they followed
the counselor's recommendation, but Grandfather testified that he
nonetheless "offered to . . . make arrangements" for a visit "and [Mother]
didn't follow through."

¶10 Mother points to her motion for visitation, phone calls to the
girls, and gifts and letters she sent them as evidence she did not abandon
her daughters. The record does not make clear how frequently Mother
telephoned the girls before she was incarcerated in February 2017, but she
did not call them more than once a month. After Mother was released from
jail in August 2017, she telephoned the girls roughly once a week. It
likewise is unclear how frequently Mother corresponded with the girls. She
testified she had sent them "several" letters, but in support of that
contention she offered copies of a single card she sent to the girls and two
letters she wrote to Grandparents. Although the letters asked
Grandparents to tell the girls that Mother loved them, the letters do not
show an ongoing dialogue between Mother and the girls or between
Mother and Grandparents about parenting issues. Mother argues she sent
the girls gifts and offered photographs of various items she had sent for
their birthdays and other holidays, but there is no evidence of when, how
many or how frequently she sent them gifts. Based on the record, we cannot
say the superior court erred in finding Mother abandoned the girls. We will
not reweigh the evidence on which the court ruled. Jordan C., 223 Ariz. at
93, ¶ 18.

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Decision of the Court

¶11 Mother nevertheless argues that because Grandparents
"stymied her efforts for visitation and contact," an abandonment finding
was foreclosed under Calvin B. v. Brittany B., 232 Ariz. 292 (App. 2013). In
particular, Mother points to her testimony that Grandparents did not allow
her to visit her girls. Mother also testified that when she telephoned to
speak to the girls, Grandmother would use a "hateful" tone of voice to let
the girls know she was on the phone, "like it was a bad thing to speak to
[Mother]."

¶12 For their part, Grandparents testified they attempted to work
with Mother to facilitate visits between her and the girls, and stated they
did not stop her from speaking to them on the phone. The superior court
is in the best position to assess the credibility of witnesses and was entitled
to believe the Grandparents' testimony. See Jesus M. v. Ariz. Dep't of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). Moreover, the facts here are unlike
those in Calvin B., in which the mother violated a parenting-time order and
obtained multiple orders of protection to bar the father from parenting their
child. 232 Ariz. at 297-98, ¶¶ 22-29. Here, the record supports a finding
that Grandparents took no such action to prevent Mother from maintaining
a relationship with the girls.

¶13 Mother also argues the superior court erred in finding that
termination of her parental rights was in the girls' best interests.
Termination of the parent-child relationship is in the best interests of a child
if there is either "an affirmative benefit to the child by removal or a
detriment to the child by continuing in the relationship." Jesus M., 203 Ariz.
at 282, ¶ 14. Moreover, "[i]n combination, the existence of a statutory
ground for severance and the immediate availability of a suitable adoptive
placement for [a child] frequently are sufficient to support a severance
order." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 335, ¶ 8 (App.
2004).

¶14 The superior court's ruling that termination of Mother's
parental rights is in the girls' best interests is supported by reasonable
evidence. Grandparents love and intend to adopt the girls. Grandparents
testified the girls are thriving socially and academically, feel secure with
Grandparents and feel that "this is their home." Mother does not dispute
that Grandparents are a suitable adoptive placement. In fact, she testified
the girls need stability and that Grandparents have provided the most
stable placement for them, Grandparents have taken good care of the girls,
and the girls have bonded with Grandparents.

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 KARLA M. v. LARRY J., et al.
Decision of the Court

CONCLUSION

¶15 For the reasons stated above, we affirm the superior court's
order terminating Mother's parental rights to the girls.

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

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