Steven M. v. Dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STEVEN M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.M., A.M., A.M., Appellees.

No. 1 CA-JV 22-0054
FILED 2-2-2023

Appeal from the Superior Court in Maricopa County
No. JD40962
The Honorable David O. Cunanan, Judge (Retired)

AFFIRMED

COUNSEL

Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Bailey Leo
Counsel for Appellee Department of Child Safety
 STEVEN M. v. DCS et al.
Opinion of the Court

OPINION

Judge Randall M. Howe delivered the opinion of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

H O W E, Judge:

¶1 Steven M. (“Father”) appeals from the juvenile court’s ruling
terminating his parental rights to his three children with Shannon M.
(“Mother”), born in 2011, 2013, and 2015, on the ground of abandonment.
Father contends, among other arguments, that the Department of Child
Safety (“DCS”) was required under Jessie D. v. Dep’t of Child Safety, 251 Ariz.
574 (2021), to give him a “chance to prove parental fitness” before moving
to terminate his parental rights on the ground of abandonment.

¶2 We reject Father’s argument because Jessie D. requires DCS to
make reasonable efforts to provide reunification services to an incarcerated
parent if, among other conditions, the incarcerated parent requests
reunification services. Id. at 582 ¶ 21. In this case, Father did not request
reunification services while he was incarcerated. Because we reject Father’s
argument and the other arguments discussed below, we affirm the juvenile
court’s order terminating Father’s parental rights.

FACTS AND PROCEDURAL HISTORY

¶3 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016). In
2016, around one year after the youngest child was born, Father separated
from Mother and left the family home.1 He never petitioned the family
court for parenting time and legal decision-making authority over the
children.

¶4 In January 2018, Father was charged with two felonies and
taken into custody, where he remained until being sentenced. In April 2018,
he was placed on a two-year supervised probation term and released from
custody. Less than three months later, he was arrested for violating his

1 Mother and her partner Christopher Y. (with whom Mother shares
other children) are not parties to this appeal; Mother’s parental rights were
terminated.

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Opinion of the Court

probation and was sentenced to prison in early 2019. He was released from
prison in September 2021. About three months after his release, he
contacted DCS to request visitation. He also participated in drug testing
and an intensive outpatient program that provides housing, counseling,
and assistance in securing employment.

¶5 The children had lived with Mother and her new partner
since 2016, after Father and Mother ended their relationship. DCS received
several neglect and physical abuse reports about the children after Father
moved out. DCS received the latest report of neglect in June 2021, when
Father was incarcerated. A DCS investigator found the children living in
the mother’s home in unhealthy and hazardous conditions, with significant
medical needs and a general lack of food. The home was also frequented by
strangers. DCS immediately took physical custody of the children.

¶6 DCS simultaneously petitioned to establish Father’s paternity
of the children and for their dependency as to Father, alleging neglect due
to abandonment and incarceration. The juvenile court found the children
dependent and adopted a case plan of severance and adoption. Then, DCS
moved to terminate parental rights due to abandonment and Father’s
incarceration on a felony sentence that would deprive the children of a
normal home for a period of years. DCS later dropped the length of felony
sentence as a ground for termination.

¶7 At the termination hearing, the DCS case manager testified
that Father had failed to give the children a stable home and protection from
physical harm and neglect. Father’s contact with the children before his
incarceration was “sporadic and non-existent.” His contact with the
children during his incarceration was non-existent. Although he was given
the opportunity to send letters to the children while he was in prison, the
children did not receive any letters or have any other contact with him. She
also testified that termination was in the best interests of the children
because it would provide them with stability and safety. Finally, she
testified that the children were in adoptable placements that were meeting
their needs. Dr. Erin South, the DCS unit consultant, testified that because
the children did not consider Father their father and did not want to see
him, it could be traumatic for the children to force contact between them.

¶8 Father testified that he visited the children at least twice a
week until he was incarcerated. He also testified he gave them gifts and
financial support. Yet Father conceded he was unaware that DCS was ever
involved with the children, or that DCS investigators found the children
living in hazardous conditions in June 2021. The last time Father saw the

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Opinion of the Court

children was a few weeks before he was first incarcerated, sometime in the
spring or summer 2018. Finally, he testified that during his incarceration,
he sent letters to the children. He did not, however, present any evidence
corroborating his testimony.

¶9 The juvenile court, after considering and weighing all the
evidence, found that DCS had proved abandonment and that termination
was in the children’s best interests. The juvenile court found that although
Father “made some different statements, the most credible evidence is that
Father did not have a significant relationship with those children [] before
he got incarcerated in that facility.” It also found that before Father’s
“sentencing and incarceration, he had not maintained a relationship with
his children since at least 2016/2017 when he and Mother separated and he
moved away from the family home.” Finally, it found that Father had failed
to provide financial support to the children and maintain contact with the
children since his incarceration in the fall of 2018. It therefore terminated
Father’s parental rights. Father timely appealed.

DISCUSSION

¶10 Father argues that the juvenile court erred in terminating his
parental rights. We accept the juvenile court’s factual findings if reasonable
evidence supports them and will affirm a termination decision unless
clearly erroneous. Demetrius L., 239 Ariz. at 3 ¶ 9.

¶11 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one statutory ground
under A.R.S. § 8–533 and by a preponderance of the evidence that
termination would be in the child’s best interests. A.R.S. § 8–533(B); Ariz.
R.P. Juv. Ct. 66(C);2 Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15
(App. 2016). One such ground is abandonment, A.R.S. § 8–533(B)(1), which
is defined as “the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing normal
supervision.” A.R.S. § 8–531(1). A parent’s “[f]ailure to maintain a normal
parental relationship with the child without just cause for a period of six
months constitutes prima facie evidence of abandonment.” Id.

¶12 A finding of abandonment requires the court to consider
whether a parent has (1) provided reasonable support to the children, (2)
maintained regular contact with them, and (3) provided normal

2 We cite the rule in effect at the time of the termination hearing; it has
since been renumbered and amended.

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supervision. Kenneth B. v. Tina B., 226 Ariz. 33, 37 ¶ 18 (App. 2010). A
parent’s conduct determines abandonment, not a parent’s subjective intent.
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 18 (2000). “The
burden to act as a parent rests with the parent, who should assert his legal
rights at the first and every opportunity.” Id. at 251 ¶ 25 (citation omitted).
When a parent cannot exercise traditional methods to bond with the
children, “he must act persistently to establish the relationship however
possible and must vigorously assert his legal rights to the extent necessary.”
Id. at 250 ¶ 22 (quoting In re Pima Cnty. Juv. Sev. Action No. S–114487, 179
Ariz. 86, 97 (1994)).

¶13 Reasonable evidence supports the termination of Father’s
parental rights based on abandonment. According to the DCS case
manager, Father had little or no contact with the children before he was
incarcerated. He had not lived with the children for over five years, and he
never petition the family court for parenting time or legal decision-making
authority over the children. During his incarceration, the contact was non-
existent. Father had not seen the children for over three years. The juvenile
court found Father’s conflicting testimony was not credible, and Father
provided no evidence of financial support to the children, or evidence of
letters, gifts, or cards that he sent to the children. Thus, the juvenile court
did not err in finding that DCS has proved by clear and convincing evidence
that Father had abandoned the children.

¶14 Father cites Jessie D. to argue that DCS was required to give
him a “chance to prove parental fitness” before moving to terminate his
parental rights on the abandonment ground. Jessie D. requires DCS to make
reasonable efforts to provide reunification services to an incarcerated
parent if (1) DCS “seeks to terminate parental rights under [A.R.S.] § 8
–533(B)(4)’s provision addressing the parent’s length of felony sentence,”
(2) the “incarcerated parent requests reunification services,” and (3)
“providing the services will not endanger the child.” Id. at 582 ¶ 21. The
record here does not show that Father requested reunification services
while he was incarcerated. Because Father did not request such services
while incarcerated, DCS was not required to provide Father with
reunification services while he was incarcerated. Because the second
condition is not met, considering the other conditions is unnecessary.

¶15 Father argues next that the juvenile court erred in finding that
termination served the children’s best interests. Termination of parental
rights is in a child’s best interests if the child will benefit from the
termination or will be harmed if the relationship continues. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018). In determining whether the

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child will benefit from termination, relevant factors include whether
the current placement is meeting the child’s needs, an adoption plan is in
place, and if the child is adoptable. Demetrius L., 239 Ariz. at 3–4 ¶ 12. The
juvenile court may find that continuing the parent-child relationship would
be detrimental to the child’s well-being because the child would linger in
care with no prospect of reunifying with the parent. See Aleise H. v. Dep’t of
Child Safety, 245 Ariz. 569, 571–72 ¶¶ 6, 10 (App. 2018). In determining
whether the termination is in the child’s best interest, the juvenile court
must consider the totality of circumstances. Alma S., 245 Ariz. at 150–51
¶ 13.

¶16 Reasonable evidence supports the juvenile court’s best
interests finding. The DCS case manager testified that termination would
provide the children with a sense of stability and safety. She also testified
that the children were in adoptable placements that were meeting their
needs. Dr. South testified that because the children did not think of Father
as their father and they did not want to see him, forcing contact between
them could traumatize the children.

¶17 Father argues, however, that the court failed to consider in its
best interests analysis his rehabilitation efforts—his request for contact with
the children upon his release, and his participation in a drug-testing
program and counseling. While the juvenile court should “consider a
parent’s rehabilitation efforts as part of the best-interests analysis,” it must
not “subordinate the interests of the child to those of the parent once a
determination of unfitness has been made.” See Alma S., 245 Ariz. at 151
¶ 15; see also Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 478 ¶ 31 (2022)
(“The ‘balancing’ performed by the juvenile court during the
best-interests inquiry does not pit the parent’s interests against the child’s
best interests to determine which predominate; at this stage, it is a given
that the child’s best interests predominate.”). The juvenile court here
explicitly noted that it considered and weighed all the evidence before it.
And the evidence before it included Father’s requests for contact with the
children upon his release, and his participation in a drug-testing program
and counseling. Father’s argument, thus, merely asks this court to reweigh
the evidence, which we will not do. See Williams v. King, 248 Ariz. 311, 317
¶ 26 (App. 2020). Reasonable evidence supports the juvenile court’s best
interests findings.

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CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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