Gordon O., Karrie O. v. Kiley O.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GORDON O., KARRIE O., Appellants,

v.

KILEY O., Appellee.

No. 1 CA-JV 20-0230
FILED 12-31-2020

Appeal from the Superior Court in Navajo County
No. S0900SV201900023
The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

Riggs Ellsworth & Porter, PLC, Show Low
By Michael R. Ellsworth
Counsel for Appellants

Weagant Law Office PLC, Florence
By Megan K. Weagant
Counsel for Appellee

GORDON O., KARRIE O. v. KILEY O.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Gordon O. (“Grandfather”) and Karrie O. (“Grandmother”)
(collectively “Grandparents”) appeal the juvenile court’s order denying
their petition to sever Kiley O.’s (“Mother[‘s]”) parental rights to her minor
child, R.B. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 R.B. was born in 2009 to Mother and David B., who is not a
party to this appeal. R.B. began permanently living with Grandparents,
Mother’s parents, in August 2018. Mother left R.B. with Grandparents for
the last weekend before the start of the 2018-2019 school year. She failed to
return by the following Monday, or even communicate with Grandparents
about retrieving R.B. Grandparents then filed for temporary legal decision-
making authority over R.B., which the Navajo County Superior Court
granted. The order permits Mother some parenting time if she complies
with urinalysis tests, which Grandparents may request once per week.

¶3 Grandparents filed a severance petition in October 2019,
seeking to terminate Mother’s parental rights on the grounds of
abandonment, neglect, and substance abuse.

¶4 The juvenile court held a one-day termination hearing in May
2020. Grandmother testified that Mother visited R.B. in-person at least four
times since January 2019. Grandmother described one of R.B.’s overnight
visits with Mother, during Christmas 2019, and how R.B. was happy to
receive a present from Mother. Grandmother also stated that Mother could
have enjoyed more access to R.B. if she were willing to contact
Grandparents. Grandfather also testified, adding that R.B. “seems a lot
happier” and is improving at school.

¶5 Mother testified that she routinely requested to see R.B., but
Grandparents refused. Mother participated in a rehabilitation program
from February to May 2019. Shortly after leaving the program, she lived
with Grandparents and R.B. for one week. In October 2019, Mother also saw

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GORDON O., KARRIE O. v. KILEY O.
Decision of the Court

R.B. without prior approval when Grandparents permitted Mother’s ex-
husband Greg O. (father of Mother’s other child) to have R.B for Halloween.

¶6 The juvenile court ruled that Grandparents failed to prove
any asserted ground by clear and convincing evidence. Grandparents
timely appealed, challenging only the court’s ruling on abandonment. We
have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 To prevail on their petition to terminate Mother’s parental
rights based on abandonment, Grandparents had to prove that ground by
clear and convincing evidence. See Michael J. v. Ariz. Dep’t. of Econ. Sec., 196
Ariz. 246, 249, ¶ 12 (2000). Though we review issues of statutory
interpretation de novo, we view the facts in the light most favorable to
sustaining the superior court’s denial of a motion to terminate parental
rights and review that ruling for an abuse of discretion. Kenneth B. v. Tina
B., 226 Ariz. 33, 36, ¶ 12 (App. 2010).

¶8 Grandparents argue the juvenile court abused its discretion
by finding that Mother did not abandon R.B. See A.R.S. § 8-533(B)(1).
Abandonment is:

[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).

¶9 We do not measure abandonment by a parent’s subjective
intent, but by the parent’s conduct. Michael J., 196 Ariz. at 249, ¶ 18.
Grandparents contend Mother’s conduct does not amount to “regular
contact” because Mother has only visited R.B. five times since 2019. What
constitutes regular contact varies from case to case. Pima Cnty. Juv. Action
No. S-114487, 179 Ariz. 86, 96 (1994).

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GORDON O., KARRIE O. v. KILEY O.
Decision of the Court

¶10 The parties presented conflicting testimony regarding the
frequency of Mother’s efforts to call, text message, or visit R.B. But
Grandmother testified Mother visited R.B. at least four times during 2019.
Mother also spent at least one week with R.B., living in Grandparents’
home, when she left her rehab program in May 2019. And Grandmother
described one of Mother’s attempts to see R.B. on Halloween, albeit against
the temporary legal decision-making order.

¶11 The juvenile court determined Mother provided no normal
supervision for a period of two years. The court also found that Mother’s
contact with R.B. was regular and she made efforts to establish and
strengthen her maternal bond with R.B. But the juvenile court noted that
Mother’s ability to maintain a relationship with R.B. “was probably more
through the efforts of [Grandparents] and [R.B.] than Mother.” The statute
does not distinguish between contact initiated by a child, parent, or third
party, when determining whether the parent maintained requisite contact
to avoid an abandonment finding. See A.R.S. § 8-533(B)(1). Grandparents
essentially ask us to reweigh the evidence and reach a new conclusion. We
decline to do so. See Joelle M. v. Dep’t of Child Safety, 245 Ariz. 525, 528, ¶ 18
(App. 2018). The record contains reasonable evidence to support the
juvenile court’s findings and we find no abuse of discretion.

CONCLUSION

¶12 We affirm.

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

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