In Re Term of Parental Rights as to E.F.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.F., K.F. and R.F.

No. 1 CA-JV 23-0038
FILED 7-6-2023

Appeal from the Superior Court in Yavapai County
No. P1300SV202200028
The Honorable Anna C. Young, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Prescott Law Group, PLC, Prescott
By Pennie J. Wamboldt
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO E.F. et al.
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

P A T O N, Judge:

¶1 John F. (“Father”) appeals the superior court’s order
terminating his parental rights to E.F., K.F., and R.F. (collectively “the
children”). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Margaret D. (“Mother”) and Father have three biological
children who were born in 2010, 2011, and 2012. The parents married in
2011, not long after the oldest child was born. Both parents were
incarcerated in 2015, and the children’s paternal grandmother
(“Grandmother”), who lived in California, began caring for them. The
children remained with Grandmother through 2018, and Father had
parenting time with them beginning in 2016. In 2018, the children and
Grandmother moved to Arizona and lived with Father.

¶3 From 2018 to May 2020, the children lived full-time with
Father. Once released from custody, Mother had regular visitation with the
children during that time, including weekend visits at her home after Father
and Mother finalized their divorce in March 2020. Father was arrested
again in April 2020, and Mother took primary care of the children while he
awaited trial.

¶4 In May 2021, the court modified the parenting plan and
granted Mother sole legal decision-making authority based on Father’s
incarceration for an unknown period of time. Father was awarded no
parenting time but could have “unlimited contact through the USPS mail”
and phone contact with the children “at the direction and recommendation
of the children’s counselor.” The modification also allowed Grandmother
to participate in counseling with the children and follow the counselor’s
guidance and recommendations for phone calls and visits. Grandmother
subsequently participated in one counseling session with the children. She
talked to Father on the phone every week. Mother petitioned for

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termination of Father’s parental rights in July 2022 on grounds of
abandonment and neglect.

¶5 In April 2022, a jury convicted Father of a felony offense, and
the court sentenced him to 3.75 years’ imprisonment. Father has seven
other charges against him pending disposition, including one federal
charge.

¶6 Father has not seen the children since May 2020. At the
termination trial, Mother testified that Father had not maintained a normal
parent-child relationship with the children or provided them with any
support in the two years since his incarceration. Mother also testified that
during the approximately two years between Father’s incarceration and her
filing for termination in July 2022, Father sent the children three letters.
Mother further testified that Father tried calling her to speak with the
children five times in the year after the parenting plan changed even though
he was not supposed to, that she did not speak to Father about the counselor
or telephone contact with the children, and that she stopped taking his calls
to avoid emotional stress.

¶7 Father testified that he sent the children “probably close to
twenty” letters since his 2020 incarceration, six of which he sent after
Mother filed the termination petition. Father also testified that after he
became incarcerated he tried to contact the children by phone several times
by calling Mother directly and that Mother would not answer his calls.
Father further testified that he was not told which counselor was supposed
to recommend his telephone contact with the children and that he could not
get the information from Mother because she refused his calls. Father never
reached out to the children’s counselor, and the counselor never
recommended that the children have telephone contact with Father.

¶8 The superior court granted Mother’s petition to terminate
Father’s parental rights on grounds of abandonment and neglect. Father
timely appealed. We have jurisdiction under Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) Sections
8-235(A) and 12-120.21(A)(1).

DISCUSSION

¶9 To grant a petition to terminate parental rights, the superior
court must find (1) by clear and convincing evidence that at least one
statutory ground for termination exists and (2) by a preponderance of the
evidence that the termination is in the child’s best interests. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018); see also A.R.S. § 8-533(B)

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(listing grounds for termination). As the trier of fact, the superior court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). Accordingly, we will affirm
the superior court’s factual findings if supported by reasonable evidence.
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–94, ¶ 4 (App. 2009).

¶10 Father argues insufficient evidence supported the superior
court’s findings of abandonment pursuant to Section 8-533(B)(1) and
neglect pursuant to Section 8-533(B)(2). He does not challenge the court’s
best-interests finding.

¶11 “‘Abandonment’ means 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). Abandonment
is independent of a parent’s subjective intent and is determined by his
conduct. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249–50, ¶ 18
(2000).

¶12 Father has provided no support to the children since his
incarceration around May 2020. Although lack of support alone does not
constitute abandonment, it is a factor the superior court considers when
combined with “a poor history of visitation or contact.” In re Pima Cnty.
Severance Action No. S-1607, 147 Ariz. 237, 239 (1985). “[I]ncarceration alone
. . . does not justify a failure to make more than minimal efforts to support
and communicate with [one’s] child.” See Michael J., 196 Ariz. at 250–51,
¶¶ 21, 24 (noting as a factor to consider in determining abandonment that
incarcerated parent “provided no support, however minimal it might have
been”).

¶13 Although Mother and Father provided contradictory
testimony regarding the number of letters Father mailed to the children, the
superior court found that Father only sent them three letters between May
2021 and July 2022, despite having the ability to send an unlimited number.
When such facts are disputed, we defer to the superior court’s judgment,
see Oscar O., 209 Ariz. at 334, ¶ 4, and will not reweigh the evidence, Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002).

¶14 Father contends Mother interfered with his ability to
communicate with the children by not answering his telephone calls.
Mother admitted she stopped answering Father’s calls. But the 2021
parenting plan required Father to first get permission to call the children
through an identified counselor who would then direct those calls, if

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approved. Father failed to contact the counselor despite Grandmother
obtaining the counselor’s information and speaking with Father at least
once a week. The order did not allow Father to call Mother directly to
communicate with the children. The superior court also noted in its ruling
that Father never sought a modification of the parenting order to allow for
contact by other means.

¶15 Although Father was incarcerated, he neither sought to
increase contact with his children nor maintained contact with them to the
extent he was permitted. He provided them no support. Reasonable
evidence thus supported the superior court’s finding of abandonment.
Because we affirm on the abandonment ground, we decline to address
Father’s arguments regarding the neglect ground. See A.R.S. § 8-533(B) (To
justify termination, a court need only find “any one” of the listed grounds
exists.); Jesus M., 23 Ariz. at 280, ¶ 3.

CONCLUSION

¶16 We affirm.

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

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