James S. v. Karina R.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES S., Appellant,

v.

KARINA R., A.S., P.S., Appellees.

No. 1 CA-JV 21-0192
FILED 1-4-2022

Appeal from the Superior Court in Maricopa County
No. JS20436
The Honorable Virginia L. Richter, Judge Pro Tempore Retired

AFFIRMED

COUNSEL

Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant

Crider Law, P.L.L.C., Mesa
By Brad J. Crider
Counsel for Appellee Karina R.
 JAMES S. v. KARINA R., et al.
Decision of the Court

MEMORANDUM DECISION

Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Acting Presiding Judge Samuel A. Thumma and Judge Maurice Portley1
joined.

C A T T A N I, Chief Judge:

¶1 James S. (“Father”) appeals the superior court’s order
terminating his parental rights as to his children A.S. and P.S. in this private
severance action. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Karina R. (“Mother”) and Father have two children together.
They ended their relationship in 2015, while Mother was pregnant with the
younger child. Neither parent sought family court orders to establish legal
decision-making authority, parenting time, or child support.

¶3 In March 2020, Mother petitioned to terminate Father’s
parental rights as to both children based on abandonment, see A.R.S. § 8-
533(B)(1), seeking to allow Mother’s new husband to adopt them. Father
opposed the petition. Mother, Father, and two other witnesses testified at
the termination adjudication hearing.

¶4 According to Mother, despite her attempts to facilitate his
relationship with the children, Father’s involvement with them went from
sporadic to nonexistent. Mother testified that, after their break-up in 2015,
Father saw the children only a few times each year, for a few hours at a
time—and he had no contact at all with them after early 2020. Mother
obtained an order of protection against Father in February 2020, but the
order did not include the children as protected persons and expressly
allowed Father to communicate with Mother by email. She stated that she
had not restricted Father’s access to the children, but he nevertheless did
not ask to see them very often or send cards, gifts, or letters to stay in touch.
Additionally, although conceding that Father had occasionally given her a

1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

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Decision of the Court

few hundred dollars for the children’s support, Mother asserted that Father
did not provide consistent or meaningful financial support to care for the
children. On the occasions that Mother asked him to do so, Father would
promise to provide support but never follow through.

¶5 Father testified that he loved his children and would do
anything for them but that Mother had blocked his attempts to develop and
maintain a relationship with them. Father further testified that, other than
some stretches of time when Mother withheld the children, he had contact
with them every week from birth until Mother’s order of protection
prohibited further contact. Father explained that, even though he asked to
see the children frequently and would arrive on time for visits, Mother often
rescheduled at the last minute and prohibited any contact that was not on
her terms. Father testified that he would gladly pay any child support
ordered and that, even absent a support order, he had given Mother money
for the children over the years and had offered to pay for anything else the
children needed. Father also noted that he had bought clothes, shoes, and
toys for the children directly, but Mother would not let them keep the items
he bought. He acknowledged that he never filed a family court case to
establish parenting time or support obligations.

¶6 The superior court granted severance, finding that Father had
abandoned the children and that severance would be in the children’s best
interests. Father timely appealed, and we have jurisdiction under A.R.S. §
8-235(A).

DISCUSSION

¶7 The superior court is authorized to terminate a parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8–533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review a severance ruling for
an abuse of discretion, deferring to the superior court’s credibility
determinations and resolution of conflicting facts. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶8 Father challenges the superior court’s finding that he
abandoned the children; he does not contest the court’s best-interests
determination. Abandonment, one of the statutory grounds for severance,
A.R.S. § 8-533(B)(1), is defined as:

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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). Abandonment is assessed objectively based on the
parent’s conduct, not on the parent’s subjective intent. See Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249–50, ¶ 18 (2000). Accordingly, when
faced with obstacles to a continuing parental relationship, a parent must
“act persistently” to establish or develop the relationship, including by
“vigorously” asserting legal rights to their child. Id. at 250–51, ¶¶ 22, 25.
We have also recognized, however, 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).

¶9 Relying largely on his own testimony, Father argues that he
made substantial and continuous efforts to maintain his relationship with
the children but was stymied by Mother’s repeated interference with and
restrictions on his contact with them. But the trial evidence was disputed,
and although Father presented evidence weighing against a finding of
abandonment, other evidence supports the superior court’s contrary
conclusion.

¶10 Father asserts that he had weekly contact with the children
and provided support for them in the form of cash and material goods (and
offered to provide additional financial support). But Mother testified that
Father saw the children, at most, only a few times annually and contributed
financially only minimally and unreliably. The superior court credited
Mother’s account, and we defer to that court’s credibility assessment. See
Jesus M., 203 Ariz. at 282, ¶ 12.

¶11 Father further asserts that Mother interfered with his exercise
of parental rights in a variety of ways: by only agreeing to visitation on her
own terms and changing plans without notice, by failing to invite him to
the children’s events, by not allowing the children to call him or to keep the
items he purchased for them, and ultimately, by obtaining an order of
protection preventing contact with the children. But Mother testified that

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Decision of the Court

she never restricted Father’s access to the children or to their activities and
never refused any visit he asked for (even though Father frequently
changed plans once visits were scheduled). Father acknowledged at trial
that he never pursued family court orders to establish and enforce the
parenting time he now argues Mother was withholding. Moreover, the
order of protection permitted Father to have contact with the children and
allowed him to contact Mother by email, so Father could have scheduled
visits but did not do so. The superior court was responsible for resolving
what were, at times, “sharply disputed” evidentiary conflicts, and we do
not reweigh the evidence on appeal. See Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 151, ¶ 18 (2018) (citation omitted).

CONCLUSION

¶12 We affirm.

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

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