Kiara D. v. Rudy N., R.N.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KIARA D., Appellant,

v.

RUDY N., R.N., Appellees.

No. 1 CA-JV 21-0334
FILED 5-10-2022

Appeal from the Superior Court in Maricopa County
No. JS20788
The Honorable Genene Dyer, Judge Pro Tempore

AFFIRMED

COUNSEL

Denise Lynn Carroll Attorney at Law, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Logan Mussman Law, PLLC, Phoenix
By Logan Mussman
Counsel for Appellees
 KIARA D. v. RUDY N., R.N.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C R U Z, Judge:

¶1 Kiara D. (“Mother”) appeals from the superior court’s order
terminating her parental relationship to her son, R.N. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 R.N. is the biological child of Mother and Rudy N. (“Father”),
born July 2013. Mother and Father were never married. In March 2017,
Mother moved to New Mexico, and Father filed a family court petition for
parenting time, legal decision making, and child support. The court
awarded the parties joint legal decision-making authority with Father as
the final legal decision maker and primary residential parent. Mother
received parenting time for one week per month until R.N. reached school
age, and then one weekend each month. During the summer months,
Mother received at least four weeks of parenting time. Given evidence that
Mother may have a substance-abuse problem, the court ordered Mother to
complete a parenting class, complete a substance-abuse assessment, and
provide a hair follicle sample for testing. Mother was ordered to pay $330
in monthly child support. Both parties were ordered to share equally in
medical costs not covered by insurance.

¶3 In October 2018, Father filed a petition for contempt and
modification of parenting time. He alleged Mother failed to complete the
substance-abuse assessment, drug testing, and parenting class. Father also
claimed that Mother failed to pay child support since September 2017 and
refused to reimburse Father for $607.90 in medical expenses. Following a
hearing which Mother failed to attend, the family court found Mother in
contempt and ordered her to pay child support arrears in the amount of
$1,354.53, as well as the $607.90 in medical expenses. The court found
Mother was in contempt for failing to comply with the drug testing,
substance-abuse assessment, and parenting-class requirements.
Accordingly, the court found Mother was not allowed to remove R.N. from

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Decision of the Court

Maricopa County until she complied with the court’s orders, including
testing negative for substances.

¶4 In October 2019, Mother attempted to visit R.N. in Arizona,
but Father incorrectly believed Mother was not allowed unsupervised
parenting time until she provided proof of the negative drug test,
substance-abuse assessment, and parenting class. Father allowed Mother
to visit with R.N. in his presence and outside his home for just a few
minutes.

¶5 Mother’s child support payments were automatically
deducted from her paycheck, and she paid off her arrears. But Mother’s
phone calls to R.N. were infrequent, and no more than every few months.
Mother also inconsistently sent R.N. gifts for holidays. Mother submitted a
drug test as ordered by the court, which tested negative for illicit
substances. However, Mother failed to reimburse Father for her share of
the medical costs, and she failed to complete the parenting class or a
substance-abuse assessment.

¶6 In March 2021, Father filed a petition to terminate Mother’s
parental relationship to R.N., claiming she had abandoned him and that
termination was in his best interests. After the petition was filed, Mother
paid the outstanding medical expenses and sent R.N. a birthday gift.
Mother made one other attempt to visit R.N., but Father notified Mother
they were out of town on the date she requested.

¶7 A two-day termination adjudication was held. The superior
court found Mother had abandoned R.N. and terminated her parental
relationship to R.N., also finding termination was in his best interests.
Mother timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶8 Although the right to custody of one’s children is
fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parental relationship, the
superior court must find by clear and convincing evidence at least one of
the grounds for termination in A.R.S. § 8-533(B), and also by a
preponderance of the evidence that termination is in the child’s best
interests. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149-50, ¶ 8 (2018).
“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. Ariz.

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Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This court does not
reweigh the evidence and will look only to determine if there is reasonable
evidence to sustain the court’s ruling. Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We will affirm the superior court’s
ruling unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1,
3, ¶ 9 (2016).

I. Abandonment

¶9 Father’s petition sought termination of Mother’s rights based
on abandonment. A.R.S. § 8-533(B)(1). “Abandonment” is defined 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).

¶10 “[A]bandonment is measured not by a parent’s subjective
intent, but by the parent’s conduct . . . .” Michael J., 196 Ariz. at 249, ¶ 18.
“What constitutes reasonable support, regular contact, and normal
supervision varies from case to case.” In re Pima Cnty. Juv. Action No. S-
114487, 179 Ariz. 86, 96 (1994). Because the concept of abandonment and
terms like “reasonable support” or “normal parental relationship” are
imprecise and elastic, these are questions of fact left to the superior court to
resolve. Maricopa Cnty. Juv. Action No. JS-4283, 133 Ariz. 598, 601 (App.
1982). Relevant facts for the court to consider include whether Mother
“visited [R.N.] regularly, the nature of her relationship with [R.N.] and
whether, within that context, she provided parental supervision and
guidance as the circumstances allowed.” Kenneth B. v. Tina B., 226 Ariz. 33,
37, ¶ 20 (App. 2010). Further, the court may consider evidence of gifts,
clothes, cards, and food Mother provided to R.N., and whether she
“voluntarily contributed additional funds to [Father] to support [R.N.’s]
upbringing.” Id.

¶11 Mother argues there is insufficient evidence to support a
finding of abandonment. We disagree. Mother voluntarily moved out of
state without R.N. in 2017. In February 2019, the family court ruled that
Mother was allowed to have out-of-state visitation only if she completed a

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parenting class, substance-abuse assessment, and provided a hair follicle
test. However, Mother did not disclose the hair follicle test to Father until
termination proceedings began, she did not complete the parenting class
until July 2021, and she failed to complete the substance-abuse assessment.
As a result, R.N. has not visited Mother in New Mexico since before
February 2019. Even in Arizona, the last time Mother saw R.N. in person
was October 2019 and only for a few minutes. Mother has never been to
any of R.N.’s sporting events or school conferences, and she never sought
information regarding school, sports, medical appointments, or other
events in R.N.’s life. Mother testified that since 2019, she has only spoken
on the phone or video chatted with R.N. once every few months for about
fifteen to twenty minutes each conversation. Father testified that Mother
spoke with R.N. only a “handful of times” in 2019, did not speak to R.N. on
the phone a single time in 2020, and spoke to R.N. only three or four times
in 2021.

¶12 While Mother has provided child support, she was previously
inconsistent with her child support payments, not making a single payment
between September 2017 and February 2019, and her payments were not
consistent until she was ordered to have her child support automatically
deducted from each paycheck. For three years, Mother refused to pay
R.N.’s outstanding medical costs, and she did not reimburse Father until a
week before the termination hearing. Mother admitted that she did not
send R.N. any Christmas gifts during 2020 and could not remember if she
sent a birthday gift. Father alleged Mother often failed to send Christmas
or birthday gifts. Mother claimed she has sent R.N. backpacks, supplies,
clothes, and shoes each year before school except in 2021, but Father
testified that Mother had not sent any back-to-school supplies or clothes in
three or four years. The record shows Mother has made only minimal
efforts to support and communicate with R.N.

¶13 Mother contends Father took “affirmative steps to isolate her
from the child and to destroy their relationship,” citing Calvin B. v. Brittany
B., 232 Ariz. 292 (App. 2013). Mother claims Father limited her phone calls
to R.N., but she also testified that she was allowed to speak to R.N. on the
phone “almost every time” she asked, and she was only denied phone calls
when Father said R.N. was unavailable due to dinner or sports practice.
Father denied ever preventing Mother from speaking to R.N. on the phone.
See Jesus M., 203 Ariz. at 280, ¶ 4 (the superior court is in the best position
to judge the credibility of the witnesses and we do not reweigh conflicting
evidence on appeal). Mother also admitted that she did not try to call R.N.
often, and only called him once a month.

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¶14 Mother contends Father prevented her from exercising her
visits in Arizona. But Mother testified that she had only tried to visit R.N.
twice since 2019. Father and R.N. were out of town on vacation during one
of these attempts. The other time, Father admitted that he incorrectly did
not allow Mother to take R.N. until she provided him with proof of
completing the parenting class, drug test, and substance-abuse assessment
pursuant to the February 2019 court orders. Mother did not attempt to
enforce her rights to parenting time by pursuing relief from the family
court.

¶15 The superior court found that Father’s actions did “not rise to
the level of interference required to establish a defense to abandonment.”
Unlike the parent in Calvin B., Mother did not actively seek involvement in
R.N.’s life, nor did she “act persistently to establish the relationship
however possible” or “vigorously assert [her] legal rights to the extent
necessary.” Michael J., 196 Ariz. at 250, ¶ 22 (citation and internal quotation
marks omitted); see also Calvin B., 232 Ariz. at 297, ¶ 22. Mother’s contacts
with R.N. have been infrequent and sporadic, and she has not provided any
supervision of R.N. for more than three years. The record supports a
finding that this irregular contact has been the result of Mother’s inaction
and not the result of Father’s conduct. Mother has not shown that the court
erred in finding that she abandoned R.N.

II. Best Interests

¶16 Mother also argues the court erred in finding that termination
was in R.N.’s best interests. Termination is in a child’s best interests if the
child will benefit from the termination, or the child will be harmed if the
court denies it. Alma S., 245 Ariz. at 150, ¶ 13. In making the determination,
the court evaluates the totality of circumstances at the time of trial,
considering factors such as the availability of an adoption plan, the bond
between the parent and the child, and the negative effect on a child of the
continued presence of a statutory ground for termination. Id. at 150-51,
¶ 13; Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶¶ 10-12 (App.
2016); Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App.
2013).

¶17 The court found termination was in R.N.’s best interests
because R.N.’s stepmother, whom R.N. referred to as “mom” and had been
a stable maternal figure in his life, wanted to adopt him, and was concerned
over R.N.’s stability in the event Father was to lose his life. The court also
found that R.N. would be harmed without termination, because he has been
negatively impacted by Mother’s sporadic contact. There was testimony

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Decision of the Court

that R.N. and Mother were not bonded, he did not enjoy speaking on the
phone with Mother, and R.N. wanted to be adopted by his stepmother. The
court’s best-interests findings are supported by the record. Mother has
shown no error.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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