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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.M., E.M., Appellees.

No. 1 CA-JV 19-0308
FILED 3-23-2020

Appeal from the Superior Court in Maricopa County
No. JD34421
The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee, Department of Child Safety
 JOSE H. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

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

C A M P B E L L, Judge:

¶1 Jose H. (“Father”) appeals the superior court’s order severing
his parental rights to J.M. (born in 2013) and E.M. (born in 2015) (collectively
“the Children”), based on the statutory ground of abandonment. 1 For
reasons that follow, we affirm.

BACKGROUND

¶2 Mother and Father separated in 2016 when the boys were one
and four years old. Sometime between January and May 2017, Father was
arrested and charged with felony DUI for driving while under the influence
of alcohol and cocaine. Father had both Children in the car, and neither
were in car seats. Father was arrested and put in jail.

¶3 On June 12, 2017, while Father was still in custody, Mother
was arrested for driving under the influence, similarly with the Children in
the car. Mother was unable to tell the Department of Child Safety (“DCS”)
where Father was, and no other family members were available to care for
the Children, so DCS took temporary custody of the Children.

¶4 DCS eventually found Father in jail in Maricopa County in
July 2017. DCS filed a dependency petition three days later alleging, as is
relevant here, that “Father is unable to provide proper and effective
parental care due to incarceration.” At the dependency hearing, Father was
appointed counsel and did not contest the allegations in the petition. The
court declared the Children dependent in September 2017.

¶5 DCS asked Father to participate in services while in custody
and told him to maintain contact with DCS when he was released. Father
was released from jail in January 2018, but did not contact DCS or his
attorney. Thereafter, Father was deported to Mexico. Father also failed to

1 Mother’s parental rights to the Children were severed in an earlier
proceeding, and she is not a party to this appeal.

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remain in contact with his Children. He testified that he sent Christmas
cards to the Children, albeit in February, but beyond that, did not send any
cards, letters, or gifts, or provide any financial or emotional support of any
kind.

¶6 Father testified that after he got out of jail, he would video
chat with the Children when they visited Mother. In May of 2018, DCS
discovered that Mother had contact with Father, and asked her to give the
case manager his number. DCS called the number and left a voicemail but
Father did not return the call.

¶7 In July 2018, DCS filed a motion to sever Father’s parental
rights pursuant to the statutory grounds of abandonment and nine-months
time in care. Father’s whereabouts were still unknown, necessitating service
by publication.

¶8 The next time Father contacted DCS was in November 2018.
He informed DCS he wanted to reestablish custody of his Children. The
case manager advised Father to seek out services through Integral Family
Development (“DIF”) in Mexico. Father participated in DIF services,
including parenting classes, a psychological evaluation, a rule-out
urinalysis test, and he cooperated with a home study of his parents’ house.
The psychologist had no concerns regarding Father’s mental health,
Father’s drug test came back negative, and DIF approved Father’s housing.

¶9 Based on this information, DCS authorized video calls
between Father and the Children. At first, one child refused to speak to
Father because the child was “scared and not ready,” but he eventually
consented to video contact. The Children do not speak Spanish, and Father
knows very minimal English, so a translator was needed for the entirety of
each conversation. Although Father had found a “Spanish/English school”
for the Children to attend in Mexico, he insisted that he did not need a
translator to communicate with the Children, because he could “kind of
understand” them without one, and they were young enough to learn
Spanish. Considering the language barrier and the Children’s inability to
sit still, the case manager testified she did not believe these phone calls were
sufficient to establish a normal parent-child relationship.

¶10 The court held a one-day contested severance trial in August
2019. By that time, the Children had spent over two years in care. The boys
had developed strong bonds with their placement family. The placement
family also sought out and took in the Children’s older sister, who was in
another placement, “so the siblings could be together.” The Children have

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now developed strong bonds with their sister. The family intends to adopt
all three children.

¶11 At the conclusion of trial, the court found that Father
abandoned the Children, and that termination was in the best interests of
the Children. The court heard testimony that the Children’s placement was
willing to facilitate phone conversations between Father and the Children
and encouraged the parties to include a written provision for continued
contact in any proposed adoption orders. Father timely appealed.

DISCUSSION

¶12 Father argues insufficient evidence supports the court’s
abandonment finding. We disagree.

¶13 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, ¶ 12 (2000).
The superior court may terminate parental rights if it finds clear and
convincing evidence of one of the statutory grounds under A.R.S. § 8-
533(B), and a preponderance of the evidence showing termination would
be in the best interests of the children. Id. at 249, ¶ 12; Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

I. Abandonment

¶14 At issue here, a statutory ground for termination arises when
“the parent has abandoned the child.” A.R.S. § 8-533(B)(1). Abandonment
is defined in the statute 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). No “bright line formula [has] developed to determine
whether a parent abandoned an existing relationship.” Pima Cty. Juv. Sev.
Action No. S-114487, 179 Ariz. 86, 96 (1994).

¶15 The court found Father abandoned the Children. The record
reflects that Father did not parent the Children between July 2017, when the

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dependency proceedings began, and November 2018, when he first got in
touch with DCS seeking renewed contact with the Children. This timeframe
is well beyond the statutorily proscribed six-month period to establish a
prima facie case of abandonment.

¶16 The superior court is entrusted with a great deal of discretion
in weighing and balancing the interests of the children, parents, and state.
Cochise Cty. Juv. Action No. 5666–J, 133 Ariz. 157, 160 (1982). As the trier of
fact, 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)
(internal quotation omitted). We will not disturb the court’s termination of
parental rights unless the factual findings are clearly erroneous—that is,
unless no reasonable evidence exists to support them. See Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 78–79, ¶ 9 (App. 2001). This court interprets
the evidence and reasonable inferences in the light most favorable to
affirming the court’s order. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207, ¶ 2 (App. 2008).

¶17 Father argues that DCS could not prove a prima facie case of
abandonment because he participated in requested services, which
“indicated that Father was appropriate to parent.” This argument ignores
over a year and a half where Father had no contact with the Children and
provided no financial or emotional support. While it is true that Father
successfully participated in services, that engagement did not preclude a
finding of abandonment.

¶18 Father was in custody from July 2017 until January 2018 and
was then deported to Mexico. “[W]hen circumstances 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.” Michael J., 196
Ariz. at 250, ¶ 22 (internal quotation omitted). Courts “should look to see
whether the parent has taken steps to establish and strengthen the
emotional bonds linking him or her with the child.” Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 21 (App. 2010).

¶19 Here, Father has not taken the requisite steps. DCS advised
Father to send cards, gifts, and letters, and to make contact with the
Children as early as July 2017. Besides one belated Christmas card to each
child, Father did not have communication with the Children, did not send
any letters or gifts, and did not provide basic support throughout the
19-month pendency of the case. In light of Father’s failure to “maintain

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regular contact” with the Children and to “provide reasonable support,”
Father did not “maintain a normal parental relationship” with the Children
for 19 months.

¶20 Although Father started communicating with the Children
through video chat in 2019, the court heard evidence the video chat calls
were too superficial to “establish or reestablish” a normal parental
relationship, particularly because the language barrier between Father and
the Children hindered communication. DCS opined that, other than the
video calls, Father did not do anything that would remedy his prior
abandonment of the Children, including his failure to provide any financial
or emotional support of the children for 19 months.

¶21 Therefore, reasonable evidence supported the court’s finding
that DCS presented a prima facie case demonstrating Father’s
abandonment of his Children.

II. Best Interests of the Children

¶22 To the extent Father challenges the court’s best interests
finding, the finding is supported in the record. In considering whether
termination of parental rights is appropriate, the superior court must find
termination is in the Children’s best interests by a preponderance of the
evidence. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018).

¶23 Termination of parental rights is in the children’s best
interests if termination would benefit the children or if the continuation of
the relationship would harm the children. Aleise H. v. Dep’t of Child Safety,
245 Ariz. 569, 572, ¶ 9 (App. 2018) (internal citation omitted). Once the
court’s focus shifts to the best interests analysis, the “foremost concern . . .
is protecting a child’s interest in stability and security.” Id. (internal
quotations omitted). The superior court also considers whether the current
placement is meeting the children’s needs and whether the placement
wants to adopt the children. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz.
376, 377, ¶ 5 (App. 1998) (internal citations omitted).

¶24 Here, evidence supports the court’s finding that termination
would benefit the Children. The Children have spent over two years in out-
of-home care and have developed strong bonds with their placement
family. The placement family has been “the only source of stability they’ve
had in their life.” The placement family intends to adopt the Children and
their older sister.

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¶25 Evidence also supports the court’s corollary finding that
continuing the relationship would be harmful to the children. DCS agreed
it would be “traumatic for the Children to be separated from the placement
after the amount of time [the] boys have lived with her.” It would also “be
harmful to the boys if they were sent to Mexico [and] separated from their
sister,” because they are bonded.

¶26 Reasonable evidence supports the court’s finding that
termination of the parental relationship is in the Children’s best interests by
a preponderance of the evidence.

CONCLUSION

¶27 For the foregoing reasons, we affirm.

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

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