In Re Term of Parental Rights as to N.R. and N.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO N.R. and N.R.

No. 1 CA-JV 23-0057
FILED 10-24-2023

Appeal from the Superior Court in Maricopa County
No. JS21058
The Honorable Genene Dyer, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi, Elisabeth Alongi
Counsel for Appellant

Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellee Alexandra D.

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellee Logan R.
 IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Kristina M. (“Grandmother”) appeals the juvenile court’s
order denying her petition to terminate the parental rights of Alexandra D.
(“Mother”) and Logan R. (“Father”) to their children. She contends, among
other arguments, that the juvenile court erred in finding that Mother’s
consent to place her children in a guardianship precluded a finding of
abandonment and that she did not prove that Mother’s chronic substance
abuse warranted termination of Mother’s rights. We vacate the court’s
order and remand for further proceedings for two reasons. First, consent to
a guardianship does not necessarily negate a finding of abandonment.
Second, the court should not have considered the substance abuse ground
because Grandmother never alleged that ground in her termination
petition.

FACTS AND PROCEDURAL HISTORY

¶2 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).
Mother and Father are the biological parents of a boy born in 2018, and a
girl born in 2019. Both parents have histories of substance abuse and
domestic violence. Father has been incarcerated several times. He was last
incarcerated in July 2020 for driving under the influence and for armed
robbery. His expected release date is October 2024. In April 2021, Mother
moved to Florida for substance abuse treatment and left the children with
Grandmother. She consented to placing the children in a guardianship with
Grandmother as their guardian.

¶3 In May 2022, Grandmother petitioned to terminate both
Father’s and Mother’s parental rights to the children. As grounds for
termination of Father’s parental rights, she alleged abandonment, neglect,
and incarceration under A.R.S. § 8–533(B)(1), (2), and (4). As grounds for
termination of Mother’s parental rights, she alleged abandonment and
neglect under A.R.S. § 8–533(B)(1) and (2). To support her neglect
allegation, Grandmother argued that Mother had neglected the children

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Decision of the Court

because Mother had abused substances, had been unsuccessful in
rehabilitating, and was unable to discharge her parental responsibilities.

¶4 The juvenile court held a termination hearing. Mother failed
to appear at the hearing. The expert who Grandmother had hired to
conduct a home study testified that grounds existed to terminate Father’s
and Mother’s parental rights. He also testified that termination was in the
children’s best interests because the parents were not involved with the
children, the children were safe in Grandmother’s home, and they had
permanency with Grandmother. Finally, he testified that Grandmother was
willing and able to adopt the children and that adoption would be in the
children’s best interests. He admitted that his home study rested only on an
interview with Grandmother and online research about Father’s criminal
history. He had not interviewed Father or Mother.

¶5 Grandmother testified that Mother and Father had
abandoned the children because, for more than six months, they had failed
to maintain a normal parental relationship with the children. They did not
send any letters, gifts, or cards to the children. She admitted, however, that
the children had not been harmed while in Mother’s care. After Mother
returned from Florida in August 2022, she saw the children only four times,
with the last contact being in December 2022. She also testified that the
termination of the parents’ parental rights was in the children’s best
interests because the children would have a stable environment. When
asked if she was concerned that Mother would withdraw her consent to the
guardianship, Grandmother answered, “No.” Finally, she testified that
Father had not indicated that he intended to terminate the guardianship.

¶6 Father testified that after his release from incarceration in
April 2020, he communicated with Grandmother about once a week to
discuss how the children were doing. He could not remember, however, if
he had ever asked to see the children. His last contact with the children was
in April 2020. While incarcerated, he received updates about the children
from Mother via phone calls until she stopped answering his calls. He also
said that he has been participating in substance abuse and counseling,
domestic violence, and anger management classes. Finally, he testified that
he did not intend to terminate the guardianship.

¶7 During the closing argument, Grandmother argued that the
court should terminate Mother’s parental rights on the abandonment and
neglect grounds. As to Father, she argued that his parental rights should be
terminated on the abandonment, neglect, and incarceration grounds. The
juvenile court found that Grandmother had proved the incarceration and

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Decision of the Court

substance abuse grounds to terminate Father’s parental rights, but not the
abandonment ground.

¶8 As to Mother, the court found that Grandmother had not
proved grounds for termination. It found that Grandmother did not prove
abandonment because Mother had consented to the guardianship “to
ensure that Grandmother [had] the legal authority [to] provide for [the
children’s] medical, educational and financial needs.” It also found that
Grandmother had not proved chronic substance abuse because
Grandmother provided no evidence beyond her testimony about Mother’s
chronic substance abuse. The court did not address that Grandmother had
alleged neglect, not chronic substance abuse, as a ground for termination.

¶9 The court further found that Grandmother had not shown
that termination of either parent’s parental rights would be in the children’s
best interests. The court reasoned that the children “always had a safe and
stable home that the parents agree[d] to through their consent to the
guardianship” and that no evidence showed imminent disruption of the
guardianship. It therefore denied Grandmother’s petition for termination.
Grandmother timely appealed.

DISCUSSION

¶10 Grandmother challenges the juvenile court order to the extent
that it found that (1) she did not prove abandonment and chronic substance
abuse as grounds to terminate Mother’s parental rights, and (2) termination
of both parents’ parental rights was not in the children’s best interests. As
to the abandonment ground, she contends that the juvenile court erred in
finding that she did not prove abandonment as to Mother solely because
Mother had consented to the guardianship. A juvenile court’s termination
determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). We will uphold the court’s factual
findings “if supported by adequate evidence in the record.” Christy C. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–52 ¶ 19 (App. 2007) (quoting State
v. Smith, 123 Ariz. 243, 247 (1979)). “The juvenile court’s legal conclusions
regarding the statutory ground for termination [] will be affirmed unless
they are clearly erroneous.” Brionna v. Dep’t of Child Safety, 533 P.3d 202,
209–10 ¶ 31 (Ariz. 2023).

¶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); Jennifer

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Decision of the Court

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 “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 In determining abandonment, the court must consider
whether a parent has (1) provided reasonable support to the children,
(2) maintained regular contact with them, and (3) provided normal
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 The court erred by concluding that Mother’s consent to the
guardianship alone defeated Grandmother’s abandonment claim. A parent
cannot avoid a finding of abandonment solely by placing children in a
guardianship. See A.R.S. § 8–533(A)–(B)(1) (no express prohibition for legal
guardians to petition for termination of parental rights). Although the
existence of a guardianship is a relevant factor for the court to consider, it
is not the only, nor even the most important, factor. See Timothy B. v. Dep’t
of Child Safety, 252 Ariz. 470, 476–477 ¶¶ 25, 27 (2022). Instead, the court’s
main focus in analyzing the abandonment ground should be on the parent
and her efforts—or lack thereof—to provide reasonable support, regular
contact, and normal supervision. See A.R.S. § 8–531(1) (Abandonment
means “the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing normal
supervision.” (Emphasis added)). The court here made no other findings.

¶14 Grandmother also argues that the juvenile court erred in
finding that she had not proved the chronic substance abuse ground under
A.R.S. § 8–533(B)(3) to terminate Mother’s parental rights. But, as Mother
points out, she never alleged chronic substance abuse as a separate ground
for termination. Although Grandmother alleged that Mother had abused
substances, had been unsuccessful in rehabilitating, and was unable to

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Decision of the Court

discharge her parental responsibilities, Grandmother did so to support her
neglect ground allegation. Thus, the only two grounds Grandmother
alleged to terminate Mother’s parental rights were abandonment and
neglect under A.R.S. § 8–533(B)(1) and (2). Grandmother never moved
before or at the termination hearing to amend her petition to allege the
chronic substance abuse ground. In fact, during the closing argument, she
argued that the court should terminate Mother’s parental rights only on the
abandonment and neglect grounds. Mother thus did not receive notice
about the chronic substance abuse ground and was denied the opportunity
to prepare a defense to this ground. See Roberto F. v. Ariz. Dep’t. of Econ. Sec.,
232 Ariz. 45, 55–56 ¶¶ 45–50 (App. 2013) (finding that the juvenile court
erred in allowing amendment of the petition to terminate parental rights on
the fourth day of trial). The juvenile court therefore erred in considering a
ground not alleged in Grandmother’s petition. See id. at 55 ¶ 44 (“Adequate
notice is a fundamental element of due process.”) In doing so, the court
further erred in not resolving the neglect ground that Grandmother had
alleged in her petition.

¶15 We vacate the juvenile court’s order denying Grandmother’s
petition to terminate Mother’s parent rights and remand to allow the
juvenile court to reconsider its ruling on the petition under a correct
understanding of the applicable law. Because we vacate the juvenile court’s
order based on the court’s error in applying the law on the statutory
grounds for termination of Mother’s parental rights, we need not—and
therefore do not—address whether the juvenile court erred in finding that
termination of Mother’s parental rights was not in the children’s best
interests.

¶16 Moreover, the juvenile court’s errors in analyzing whether
Mother’s parental rights should be terminated affected its analysis whether
termination of Father’s parental rights was in the children’s best interests.
Whether grounds exist to terminate Mother’s parental rights is a factor in
determining the best interests analysis as to Father because the termination
of Mother’s rights affects the children’s adoptability, a critical factor in
determining best interests. See Demetrius L., 239 Ariz. at 3–4 ¶ 12 (explaining
that in determining whether the 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); see
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98 ¶ 10 (App. 2016) (noting
that termination would make the children eligible for adoption, which
shows that the children would benefit from the termination). We therefore
also vacate the juvenile court’s best interests analysis as to the termination
of Father’s parental rights and remand for further proceedings.

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Decision of the Court

CONCLUSION

¶17 We vacate and remand.

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

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