Latoya L. v. Dcs, T.L., J.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LATOYA L., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, T.L., J.L., Appellees.

No. 1 CA-JV 19-0394
FILED 5-5-2020

Appeal from the Superior Court in Maricopa County
No. JD531003
The Honorable Norman J. Davis, Judge (retired)
The Honorable Jennifer E. Green, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

MEMORANDUM DECISION

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

M c M U R D I E, Judge:

¶1 LaToya L. (“Mother”) appeals from a juvenile court order
terminating her parental relationship to her children, Tremaine and
Ja’Lottie. The fathers of the children had their parental rights severed in
different termination proceedings and are not parties to this appeal. For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In July 2016, Mother considered herself homeless and faced
the possibility of incarceration for a burglary in Louisiana. Mother sent the
children to their maternal grandfather (“Grandfather”), who lived in
Arizona, to care for them. Mother provided a power of attorney to
Grandfather and his significant other, Alicia. In October 2016, Mother was
convicted of burglary and placed on three years’ supervised probation. She
absconded from supervised probation and did not retrieve the children
from Grandfather.

¶3 When the power of attorney expired, Grandfather asked
Mother for the children’s birth certificates and social-security cards so he
could enroll them in school. She refused. Mother and Grandfather’s
relationship became strained, and eventually, Grandfather initiated a
guardianship action.

¶4 The Department of Child Safety (“DCS”) began to investigate
Mother in June 2017 after the children’s guardian ad litem filed a
dependency petition. At that time, Grandfather and Alicia had ended their
relationship, but the children remained with Alicia as a kinship placement
and licensed foster-care provider.

¶5 In August 2017, Mother was arrested in Louisiana on
suspicion of committing another offense. While in custody, the police
became aware of her outstanding warrant for absconding from probation,
so they detained Mother pending resolution of the probation-revocation

2
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

proceedings. The court ultimately revoked Mother’s probation and
sentenced her to three years’ imprisonment. Mother was incarcerated in
Louisiana until August 1, 2018, when she qualified for parole. As a
condition of her parole, Mother was required to remain in Louisiana for
approximately two years.

¶6 While incarcerated, DCS attempted to set up services and
phone calls with the facility, but Mother did not qualify for services while
on work release. DCS began the process of placing the children with their
maternal grandmother in Louisiana but stopped when their grandmother
stated she did not want to be their placement. During this time, Mother was
able to appear telephonically at several hearings, and Grandfather and
Alicia brought the children to visit family in Louisiana and took the
children to see Mother. Additionally, DCS encouraged Mother to send
cards, letters, gifts, or whatever she could afford to her children; and
Mother did send a few letters.

¶7 Shortly after her release in August 2018, Mother made a quick
phone call to DCS and promised to contact them later. DCS requested
Mother’s parole officer’s contact information, but Mother did not provide
it. DCS and Mother did not communicate again until February 2019, when
Mother attended a hearing telephonically. DCS again requested Mother’s
contact information, and Mother gave DCS the maternal grandmother’s
phone number and address. When DCS later called the maternal
grandmother to speak with Mother, the grandmother stated that Mother
did not live there.

¶8 On March 13, 2019, DCS moved for termination of Mother’s
parent-child relationship alleging abandonment and nine months’
time-in-care. DCS alleged Mother abandoned her children, noting she had
not had any contact with them after her release from prison in August 2018,
nor had Mother provided financial support for them.

¶9 In April 2019, Mother completed an in-patient thirty-day
detoxification program. In May 2019, Mother reinitiated contact with DCS
and indicated that she had secured housing. However, after a relapse with
alcohol and marijuana, Mother voluntarily re-admitted herself into the
same in-patient treatment facility in August 2019 and again substantially
completed the program. Additionally, Mother partially completed
subsequent out-patient substance-abuse programs after the first in-patient
treatment program. Mother also participated in parenting classes,
urinalysis, and counseling through the treatment programs.

3
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

¶10 From June to August 2019, Mother participated in
intermittent supervised phone calls with the children. After the calls
between Mother and the children resumed, Tremaine was diagnosed with
depression. Both children would cry after the phone calls, and Tremaine
exhibited behavioral issues. In October 2019, the children’s therapist
recommended that DCS discontinue the phone calls due to their
inconsistency and for Tremaine’s mental stability.

¶11 Mother moved to Arizona and began working with a shelter
to get established. DCS organized drug testing for Mother, which Mother
eventually completed. DCS also scheduled an interview with an outpatient
treatment center.

¶12 The court conducted a two-day contested termination hearing
in November 2019. DCS called Mother’s case managers to testify
concerning the allegations of abandonment. The case managers testified
that: (1) during her incarceration, Mother could not engage in services with
DCS and had little contact with the children; (2) after she was released from
prison, Mother had limited or no contact with her children or DCS for over
six months, and (3) Mother was unemployed, and she did not know if she
would remain in Arizona or move back to Louisiana. The case managers
also opined that termination of Mother’s parental relationship was in
children’s best interests because their current placement was meeting their
needs, termination would provide them with permanency and stability,
they had bonded with a placement that was willing to adopt them, and they
were otherwise adoptable.

¶13 The juvenile court found that DCS had proven the
abandonment and nine months’ time-in-care ground and issued an order
terminating Mother’s parental relationship with the children. Mother
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) section 8-235(A) and Arizona Rule of Procedure for the Juvenile
Court 103(A).

DISCUSSION

¶14 Mother argues the juvenile court abused its discretion by
finding she had abandoned her children because other factors inhibited her

4
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

ability to maintain a normal parental relationship with them.1 Specifically,
Mother contends the “Louisiana prison system, her lack of a phone,
[Grandfather], and the failure of [DCS] to consistently facilitate phone
contact,” frustrated her efforts to maintain a normal parent-child
relationship. We review the juvenile court’s termination order for an abuse
of discretion and “will affirm if it is supported by sufficient evidence in the
record.” Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 12 (App. 2010). “We view
the facts in the light most favorable to sustaining the [juvenile] court’s
decision.” Id.

¶15 The juvenile court may terminate a parent-child relationship
if it finds there is clear and convincing evidence that a parent has
abandoned a child, and that termination of the parent-child relationship is
in the child’s best interests. A.R.S. § 8-533(B)(1); Kenneth B., 226 Ariz. at 36,
¶ 13. “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 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). “[A]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct.” Michael J. v. ADES, 196 Ariz. 246, 249,
¶ 18 (2000). “[I]n deciding whether a parent has abandoned a child as
defined in [A.R.S] § 8-531(1), a 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., 226 Ariz. at 37, ¶ 18 (alteration in original) (quoting A.R.S. § 8-531(1));
see Michael J., 196 Ariz. at 249–50, ¶ 18. Conduct that amounts to reasonable
support, regular contact, and normal supervision will vary depending on

1 Mother also argues the juvenile court erred by terminating her
parental rights under the nine months’ time-in-care ground, A.R.S.
§ 8-533(B)(8)(a), because DCS failed to provide appropriate reunification
services. “If clear and convincing evidence supports any one of the
statutory grounds on which the juvenile court ordered severance, we need
not address claims pertaining to the other grounds.” Jesus M. v. ADES, 203
Ariz. 278, 280, ¶ 3 (App. 2002).

5
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

the facts of each case. Michael J., 196 Ariz. at 250, ¶ 20. Incarceration alone
does not demonstrate nor excuse a finding of abandonment; instead, it is a
factor to consider in evaluating a parent’s performance of their parental
obligations. Id. at ¶ 22; Pima County Juv. Action No. S-624, 126 Ariz. 488, 490
(App. 1980).

¶16 Here, the juvenile court found that “[f]rom approximately
February 2018 to August 1, 2018[,] Mother made no financial contributions
to the children’s support, and failed to provide cards, letters or gifts to the
minor children.” The juvenile court also found that “[b]etween August 2018
and June 12, 2019, Mother made little efforts to contact DCS or maintain a
relationship with the children.” Finally, the court found that:

Mother’s voluntary absence from the lives of the children for
more than three years with only minimal contact during this
time clearly meets [the prima facie] standard of abandonment.
Mother’s minimal post-petition attempts to reestablish a
parental relationship with the children do not automatically
rebut this prima facie case of abandonment.

Based on these findings, the court concluded DCS had established by clear
and convincing evidence that Mother had abandoned the children.

¶17 Reasonable evidence supports these findings. Mother has
been largely absent from her children’s lives for several periods, each
lasting over six months. During her incarceration, Mother only sent a few
letters and saw her children one time in the spring of 2018. Mother did not
send gifts or financial support to the children, even though she was on work
release and earned income starting in February 2018. Mother remained in
contact with Grandfather and “could hear [the children] in the
background” of the calls but did not have direct contact with the children.
Although Mother’s options were certainly limited during this period,
Mother did not make more than token efforts to maintain a parental
relationship with the children. After her release, Mother had little or no
contact with her children until June 2019. Mother admitted during her
testimony that she did not call the children and did not send gifts, financial
support, or letters from August 2018 to February 2019. And after August
20, 2018, DCS was unable to communicate with Mother or locate her until
at least February 2019.

¶18 At the termination trial, Mother did not dispute these facts,
but claimed: (1) she attempted to contact the children through Grandfather,
but he refused to accommodate her out of fear of getting in trouble with

6
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

DCS; (2) she asked Grandfather if she could send the children gifts, but he
rejected the idea; (3) DCS failed to facilitate telephone calls between her and
the children while she was incarcerated and after her release; (4) she did not
have a phone from August 2018 to March 2019; and (5) she tried calling DCS
frequently through the maternal grandmother but because she received no
answer she left voicemails.

¶19 “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002). We cannot say the
court abused its discretion by finding Mother’s proffered reasons
unpersuasive and concluding Mother had failed to maintain a parental
relationship with the children for a period of more than six months—prima
facie evidence of abandonment.

¶20 Nor can we say the court erred by finding that Mother’s
post-petition efforts had not rebutted this prima facie evidence of
abandonment. Although Mother recently resumed communicating with
her children and moved to Arizona, the communication was intermittent at
best, and the children’s therapist recommended the communication end
because of the children’s behavioral issues attributed to that
communication. Under these circumstances, the juvenile court did not
abuse its discretion by concluding that Mother had abandoned her children.
Accordingly, the juvenile court did not err by terminating Mother’s
parental relationship with the children.2

2 Mother does not challenge the juvenile court’s finding that
termination of her parental relationship with the children is in their best
interests. Thus, we need not address the issue in this appeal. See Michael J.,
196 Ariz. at 249, ¶ 13.

7
 LATOYA L. v. DCS, T.L., J.L.
Decision of the Court

CONCLUSION

¶21 We affirm the order terminating Mother’s parental
relationship to Tremaine and Ja’Lottie.

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

8