Michaela F., Brian F. v. Benjamin A., T.A.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAELA F., BRIAN F., Appellants,

v.

BENJAMIN A., T.A., Appellees.

No. 1 CA-JV 19-0348
FILED 4-7-2020

Appeal from the Superior Court in Maricopa County
No. JS519131
The Honorable Cynthia L. Gialketsis, Judge Pro Tempore

AFFIRMED

COUNSEL

Michaela F. & Brian F., Phoenix
Appellants

Denise L. Carroll, Scottsdale
Counsel for Appellee, Benjamin A.
 MICHAELA F., BRIAN F. v. BENJAMIN A., T.A.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Michaela F. and Brian F. (“Appellants”) appeal the juvenile
court’s order denying their petition for termination of Benjamin A.’s
(“Father”) parental rights to his daughter, T.A. (“the child”). For the
following reasons, we affirm.

BACKGROUND

¶2 Father and Melissa G. (“Mother”) are the biological parents of
the child, who was born in 2012. Mother and Father lived together until the
child was about nine months old. In 2014, the family court awarded Mother
and Father joint legal decision-making and equal parenting time. Despite
the order, the child stayed in Mother’s custody, but Mother asked
Appellants (the child’s maternal aunt (“Aunt”) and uncle) to care for the
child. The child has been in Appellants’ care for approximately five years;
she refers to them as “mom and dad,” and they desire to adopt her.

¶3 In 2016, Aunt filed a petition to terminate Father’s parental
rights, alleging abandonment. Following a four-day evidentiary hearing,
in January 2018 the juvenile court (Judge Arthur Anderson) denied the
petition, finding that Father’s repeated attempts to contact Mother
demonstrated he had not abandoned the child. Michaela F. v. Benjamin A.,
T.A., 1 CA-JV 18-0040, 2018 WL 3853693, at *2, ¶ 11 (Ariz. App. Aug. 14,
2018) (mem. decision). Judge Anderson also declined to terminate Mother’s
parental rights, even though she had consented, because it would leave
Father as the only legal parent and would not serve the child’s best
interests. Id. The court then ordered DCS to investigate whether the child
was dependent as to Father. Id. Aunt then appealed Judge Anderson’s
ruling to this court. Id. at ¶ 12.

¶4 When DCS initially contacted Father, he refused to do a drug
test or psychological evaluation. Because of Father’s significant absence
from the child’s life, DCS put a safety plan in place on April 25, 2018.
Appellants, Father, Mother (by phone), and one of Father’s sisters attended

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a Team Decision Making (“TDM”) meeting on May 2, 2018, as a follow-up
to the juvenile court’s order directing DCS to investigate Father’s
circumstances, and to discuss the safety plan. Two psychologists, Dr. Fore
(the child’s therapist), and Dr. Dibacco (a DCS therapist), also participated
in the TDM. They discussed therapeutic visitation counseling to introduce
the child to Father. Dr. Fore explained that for the child, spending time
with Father would be like spending time with a complete stranger. She
recommended that they start getting to know one another in therapy.
Mother stated that Father is unstable. At the end of the TDM, DCS
indicated there was not enough information to assess Father as a safe
parent, and thus DCS determined it would assume immediate custody of
the child and file an out-of-home dependency. DCS stated it would
continue to assess Father “for safety and develop Conditions for Return,”
but Father was not to have contact with the child “at this time.” The child
was to remain with Appellants, and Mother could have supervised visits.
Dr. Fore understood that the plan was for the child and Father to be
introduced slowly, with Dr. Fore’s participation.

¶5 Around the same time, Father signed a “90-day voluntary”
agreement that allowed Appellants to keep the child for 90 days while DCS
completed its investigation. Father expected that at the conclusion of the
90 days he would be informed about the next steps. According to Father,
he participated in drug testing after the TDM.

¶6 On May 4, 2018, DCS filed a dependency as to Father, but the
court denied the petition because the child was not dependent on the
State—the child was under Appellants’ care, and there was no imminent
concern regarding Father. On May 10, DCS developed an aftercare plan
and discussed it with Mother and Father by phone. The plan indicated that
Mother and Father would resume 50/50 custody and that DCS no longer
had legal custody of the child. Father asserted he was not aware of this; he
believed DCS involvement ended in August. At that time, Father was fine
with the aftercare plan and did not want to take the child away from her
mother, who was terminally ill.

¶7 Mother passed away in June 2018. Her dying wish was for
the child to remain with Appellants permanently. Father contacted Aunt
through a Facebook message in July. He told her he “hope[d] you guys
[are] healthy still [and] doin[g] well. Think[ing] [a]bout [the child] always.”
Aunt responded that they were “absolutely willing to negotiate a Post-
Adoption Agreement with [Father], giving [him] time to begin and
maintain a relationship with [the child] upon completion of Adoption.”
Aunt stated she was “not interested in dragging this on through court until

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[the child] is 18.” Father replied that the courts had consistently decided in
his favor and asserted that Appellants had no legal rights to the child.
Father said he could provide an address to Aunt for when she was ready to
meet. A few days later, Father asked Aunt if she had considered complying
with the court’s orders to allow him visitation or a phone conversation with
the child.

¶8 In August 2018, this court affirmed Judge Anderson’s order
denying Aunt’s first petition to terminate Father’s parental rights. Michaela
F., 1 CA-JV 18-0040, at *1, ¶ 1. We explained in part that although evidence
existed from which the juvenile court “could have determined that Father
did not make sufficient efforts to maintain contact with [the child], the
record also supports the court’s conclusion that Father had not abandoned
[her], but rather that Mother’s interference had thwarted his efforts to
remain in his daughter’s life.” Id. at *3, ¶ 16. For example, we noted that
Mother kept the child from Father for two and a half years. Id. at *1, ¶ 7.
Mother failed to show up for scheduled exchanges so Father could not see
the child. Id. Father emailed and called Mother asking to see the child, but
for the most part, Mother did not respond. Id. Mother also alleged that
Father sexually abused the child. Id. at *1, ¶ 4. Both DCS and law
enforcement investigated Mother’s allegations, but they were unfounded.
Id.

¶9 In October 2018, Father contacted Aunt again, and this time
Aunt informed him that Mother had died. Father responded to Aunt in
December, asking when he could schedule visits with the child. Aunt
replied that therapeutic counseling needed to occur as a means to introduce
Father to the child and confirmed that her position on adoption had not
changed.

¶10 On December 10, 2018, Father filed a motion to modify
parenting time in family court, but the motion was later dismissed on
procedural grounds. The next day, presumably by coincidence, Appellants
filed their petition to terminate Father’s parental rights, alleging
abandonment and neglect. On March 17, 2019, Father filed a petition to
modify legal decision-making in family court. On March 22, Father filed a
motion to dismiss the termination and return the child to him. The court
denied the motion and explained that the family court was responsible for
any outstanding custody and visitation issues. The court then stated it was
“requesting” that the family court “not stay the issue.”

¶11 On April 15, 2019, the family court set a hearing regarding
visitation. On May 15, the family court conducted a resolution

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management conference, granting a stay of the petition despite the juvenile
court’s request.

¶12 Following a three-day termination hearing, the juvenile court
denied the petition. In its ruling, the court first explained that the parties
had agreed the relevant time period for assessing Appellants’ allegations
for termination started on January 18, 2018, when the first petition was
denied, to the present. The court and parties also acknowledged that
“information as it relates to the relationship Father has had with the child
historically would be relevant” to allow the court to see the entire picture,
and the court “would consider the previous case as needed for historical
context.” The court therefore took judicial notice of that docket. After
analyzing the applicable law and pertinent evidence, the court determined
that Appellants failed to establish by clear and convincing evidence the
alleged grounds for termination. This timely appeal followed.

DISCUSSION

¶13 The juvenile court is authorized to terminate a parent-child
relationship if clear and convincing evidence establishes at least one
statutory ground for termination and a preponderance of the evidence
shows that termination is in the child’s best interests. A.R.S. § 8-537(B);
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248–49, ¶ 12 (2000); Kent
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 42 (2005). As the trier of fact, the juvenile
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and make appropriate findings.” Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We will
not disturb the court’s ruling absent an abuse of discretion or unless there
is no reasonable evidence to support the court’s findings. Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We view the
evidence in the light most favorable to affirming the court’s findings.
Michael J., 196 Ariz. at 250, ¶ 20. We do not reweigh the evidence, and we
defer to the fact-finder’s resolution of any conflicts in the evidence. See
Vanessa H. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 252, 257, ¶ 22 (App. 2007).

A. Abandonment

¶14 Whether a parent has abandoned his or her child requires an
objective analysis of the parent’s conduct, not the parent’s subjective intent.
Michael J., 196 Ariz. at 249, ¶ 18. Abandonment is defined as:

[T]he failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment includes a judicial

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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). Accordingly, when faced with obstacles to a continuing
parental relationship, a parent must “act persistently to establish the
relationship however possible and must vigorously assert his legal rights.”
Michael J., 196 Ariz. at 250, ¶ 22 (citations omitted). But we also recognize
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.”
Calvin B. v. Brittany B., 232 Ariz. 292, 293–94, ¶ 1 (App. 2013). “What
constitutes reasonable support, regular contact, and normal supervision
varies from case to case,” and thus “questions of abandonment . . . are
questions of fact for resolution by the trial court.” Michael J., 196 Ariz. at
250, ¶ 20 (citations omitted).

¶15 Appellants argue the juvenile court erred in finding they
failed to prove Father abandoned the child, asserting the court abused its
discretion by failing to find that he abandoned the child “after more than
six months without any form of contact with the child, no effort to
communicate with the child, and no parent-child relationship.”

¶16 The juvenile court explained that the child has lived with
Appellants full-time since she was three, and for a period of time before
that, “all with Mother’s consent.” The court found that Father has had no
physical contact with the child since she was 15 months old, and he has no
parent-child relationship with her. According to Judge Anderson, those
circumstances were caused “by Mother’s defiance of family court orders
and Mother’s failure to respond to Father’s email attempts.”

¶17 In evaluating Father’s efforts, the juvenile court expressly
noted a number of concerns about his failure to take steps toward
establishing a relationship with the child. For example, (1) Father’s lack of
effort to set up therapeutic visits with child since the TDM; (2) Father had
Dr. Dibacco’s contact information from the TDM but never called him; (3)
Father never reached out to Dr. Fore to set up any type of therapeutic
intervention or ask about how to begin that process; (4) Father claimed he
did not believe it was practical to set up the appointments because he did
not believe Appellants would cooperate; (5) Father said he did not want to
“rock the boat” as an explanation for not attempting to initiate more

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contact; (6) Father has not provided financially for the child; and (7) Father
stated he has gifts for the child but presented no evidence.

¶18 The juvenile court also found that Father (1) participated in a
home visit; (2) attended the TDM; (3) agreed to cooperate with DCS; (4)
signed a 90-day voluntary agreement; (5) believed he could not have
contact with the child until the 90-day period passed, which would have
been August 2018; (6) reached out to the Appellants in July, but it was made
clear to him that Appellants wanted to adopt the child; and (7) filed a
petition to modify legal decision-making, parenting time, and child support
in December 2018, and re-filed it in March 2019 after it was initially
dismissed. In concluding Father did not abandon the child, the court
recognized “Father could have done more” but made “more than minimal
efforts” by participating in the home visit, the TDM, ultimately cooperating
with DCS, signing the 90-day voluntary agreement, “reaching out to
Petitioners and filing documents with family court.” The court also
expressed its concern that Appellants “waited months to advise Father of
Mother’s death, knowing there were Family Court orders in place and that
Father was the only legal parent at the time.”1 Reasonable evidence in the
record supports these findings.

¶19 Considering the context of the entire case, but focusing
specifically on the relatively short timeframe outlined by the juvenile court,
Appellants have failed to identify any six-month period where Father made
only minimal efforts without just cause. See A.R.S. § 8-531(1). Until May
2018, Father was waiting for DCS to end its investigation before reaching
out to Aunt, which he did in July. From May to August, he believed he was
not allowed to have contact with the child based on the 90-day voluntary
agreement entered into after the TDM meeting. Mother did not pass away
until June, and Father was not informed of her passing until October.
Although he certainly could have done more, and acted more promptly,
Father did make at least some efforts to stay in touch with Aunt, check in
regarding the child, and inquire as to when he could spend time with the

1 The juvenile court aptly recognized that its decision “sadly leaves
the parties in the same situation as they were” at the time of Judge
Anderson’s ruling, in that Father is unable to parent due to significant
absence in the child’s life, with the now added factor that Mother is
deceased. The court directed DCS to start another investigation and file a
dependency, if appropriate, explaining that if no parent is currently able to
parent, a dependency petition would likely be needed. The court also
expressed its hope that Appellants, who “have done a wonderful job” in
raising the child, would continue to be an important part of her life.

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child. Additionally, he opposed Aunt’s appeal of Judge Anderson’s
decision, continued to seek relief in the juvenile court by opposing the
second petition for termination, including filing a motion to dismiss the
petition and return the child to him, and he made pertinent filings in the
family court seeking to change the 2014 order.

¶20 Moreover, the juvenile court’s concern regarding Aunt’s
failure to communicate is justified. Aunt waited to inform Father of
Mother’s death for several months after Mother died. When Father reached
out to Aunt in July of 2018, she said nothing about Mother’s passing.
Furthermore, when Father made that inquiry, Appellants plainly took the
position that Father’s only option was to discuss a post-adoption
relationship in the child’s life; reunification was apparently out of the
question. Appellants were free to take that position; however, it was also a
factor the juvenile court could properly consider in deciding the
reasonableness of Father’s efforts, and whether they were more than
minimal or whether Appellant’s position provided good cause for his lack
of effort in seeking the return of his child. Cf. Calvin B., 232 Ariz. at 297, ¶
21 (“A parent may not restrict the other parent from interacting with their
child and then petition to terminate the latter’s rights for abandonment.”)

¶21 In sum, the juvenile court was in the best position to weigh
testimony and evidence presented at the termination hearing, and we will
not substitute our judgment for that of the juvenile court. Maricopa County
Juvenile Action No. JD-500200, 163 Ariz. 457, 461 (App. 1989). While we
acknowledge that Father could have taken a number of additional steps in
his effort to establish a relationship with his child, we cannot say the court’s
decision was “manifestly unreasonable,” or “based on untenable grounds
or for untenable reasons.” See Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
39, 42, ¶ 11 (App. 2008) (citation omitted); see also State v. Slover, 220 Ariz.
239, 242, ¶ 4 (App. 2009) (A court abuses its discretion when it “misapplies
the law or exercises its discretion based on incorrect legal principles.”). Nor
can we conclude that the record lacks any reasonable evidence supporting
the court’s findings. Thus, the court did not err in denying Appellants’
petition relating to abandonment.

B. Neglect

¶22 Appellants also argue the juvenile court erred in denying
their petition to terminate Father’s parental rights based upon neglect due
to his failure to provide healthcare to the child when she came into their
care as well as Father’s inability to provide for himself, which shows he will
not be able to provide for the child’s basic needs. See A.R.S. § 8-533(B)(2).

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Neglect is “[t]he inability or unwillingness of a parent . . . to provide [a]
child with supervision, food, clothing, shelter or medical care if that
inability or unwillingness causes unreasonable risk of harm to the child’s
health or welfare.” A.R.S. § 8-201(25)(a). The juvenile court recognized that
“Father has not provided food, shelter, clothing, etc. for the child.” The
court then explained, however, that the evidence does not support a finding
that his failure to provide support “caused unreasonable risk of harm to the
child’s health or welfare.” Appellants do not argue, nor have they directed
us to any evidence in the record, that Father’s inaction has caused an
unreasonable risk of harm to the child’s health or welfare. Thus, we find
no abuse of discretion.2

CONCLUSION

¶23 We affirm the juvenile court’s order denying the petition for
termination.

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

2 Because the superior court did not find either ground for
termination was proven (i.e., that Father is unfit to parent), we do not
address Appellants’ argument relating to best interests. See Kent K., 210
Ariz. at 285, ¶ 31 (“Once a court determines that a parent is unfit, the focus
shifts to the interests of the child as distinct from those of the parent.”).

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