In Re Termination of Parental Rights as to N.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0040
FILED 08-15-2024

Appeal from the Superior Court in Maricopa County
No. JS21704
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant

Perez Law Office, PLLC, Chandler
By Sabrina Perez-Arleo
Counsel for Appellee
 IN RE TERM OF PARENTAL RIGHTS AS TO N.L.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Cain L. (“Father”) appeals the order terminating his parental
rights to his child, N.L. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the
juvenile court’s findings. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 479
¶ 32 (2023).

¶3 Melissa A. (“Mother”) and Father are the biological parents of
N.L., born in June 2016. When they met in 2015, Father was on probation
for drug crimes he committed in 2012. He was also actively abusing illegal
drugs, which Mother did not realize until she found him in the bathroom
injecting heroin. Later, she would find needles, spoons, and foils he used
for injecting drugs scattered about his room. He was also using
methamphetamines and other illegal substances.

¶4 Father continued to abuse substances after N.L. was born. He
also sold drugs to pay for his addictions. When still together, Mother
pleaded with him to seek help for his substance abuse, but he was resistant
to treatment and ignored her requests or grew angry.

¶5 In November 2016, when N.L. was about five months old,
Father was arrested on new drug charges and for violating his probation.
He spent about four months in Maricopa County jail. Then, in February
2017, he was sentenced to eight years of incarceration and transferred to a
prison in Buckeye, Arizona.

¶6 While Father was in jail, Mother arranged for him to have
video visits with N.L. After he was transferred to prison, she brought N.L.
to see him every other week. But her visits gradually decreased over the
next two years because Father’s behavioral problems in prison—including
many substance-abuse offenses—resulted in the prison system transferring

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Decision of the Court

him to Yuma, Arizona. His last visit with N.L. was at the prison in Yuma in
2019.

¶7 During the first two years of Father’s incarceration, he would
call Mother collect every other day. But she stopped answering his calls in
2019 because he used the calls to ask her for favors or for money. The
following year, when the COVID-19 pandemic began, the Arizona
Department of Corrections provided him with a tablet that he could use to
send emails. Mother signed up to receive emails from him, but she stopped
emailing with him after about a year because he continued to ask her for
favors and money. As a single mother, she also struggled to afford his calls
and emails.

¶8 Meanwhile, Mother and N.L.’s stepfather started dating in
2018, and they were married in December 2023. N.L. was three when he met
his stepfather, whom he refers to as “Dad.” Mother and the stepfather also
have a three-year-old child together and a child on the way. In August 2023,
she petitioned the juvenile court to terminate Father’s parental rights,
alleging as grounds for termination: abandonment, substance abuse,
neglect, and incarceration. She also obtained a termination social study,
which recommended the court terminate Father’s parental rights so N.L.
could be adopted by his stepfather.

¶9 Father was released from prison on October 31, 2023. The next
day, he met with his probation officer and admitted to using heroin two
days earlier. He declined substance-abuse services, so instead they
prioritized finding housing and employment. He moved in with his
girlfriend and her children, and about a month later, he found a job as a
truck driver for a contracting company.

¶10 The court held a termination trial on January 31, 2024.
Following the trial, the court concluded that Mother proved by clear and
convincing evidence that Father abandoned N.L. See Arizona Revised
Statutes (“A.R.S.”) § 8-533(B)(1). The court found Mother was credible
when she testified that during her pregnancy and up until his incarceration
in 2016, Father was under the influence of illegal substances daily. The court
also found, during Father’s incarceration, Mother worked to maintain
Father’s relationship with N.L. by taking N.L. for visits every other week
and regularly accepting phone calls. However, Father received numerous
disciplinary sanctions in prison “resulting in the reduction of privileges
including the ability to interact with [Mother and N.L.].” The court further
found that he did not work hard to maintain a parental relationship with
his son and that his son had “no relationship” with him. Finally, the court

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determined that terminating Father’s parental rights was in N.L.’s best
interests.

¶11 Father timely appealed. We have jurisdiction under Article 6,
Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-120.21(A),
-2101(A), and Arizona Rule of Procedure for the Juvenile Court 601(a).

DISCUSSION

¶12 A parent’s right to custody and control of his or her own child,
while fundamental, is not absolute. Trisha A. v. Dep’t of Child Safety, 247
Ariz. 84, 90 ¶ 25 (2019). The juvenile court may terminate the parental
relationship where (1) clear and convincing evidence shows the existence
of a statutory ground for termination under A.R.S. § 8-533, and (2) a
preponderance of the evidence shows that termination is in the child’s best
interests. Brionna J., 255 Ariz. at 477 ¶ 20. We accept the court’s factual
findings so long as they are supported by reasonable evidence and
inferences, and we affirm the court’s legal conclusions about the statutory
grounds for termination unless they are clearly erroneous. Id. at 478–79
¶¶ 30–31. We do not reweigh the evidence. Maria G. v. Dep’t of Child Safety,
253 Ariz. 364, 366 ¶ 8 (App. 2022).

¶13 In this case, the court terminated Father’s rights based on
abandonment. See A.R.S. § 8-533(B)(1). Arizona law defines
“abandonment” 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.

¶14 In deciding whether a parent has abandoned a child, we
consider “whether a parent has (1) provided reasonable support to the
children, (2) maintained regular contact with them, and (3) provided
normal supervision.” Steven M. v. Dep’t of Child Safety, 254 Ariz. 426, 430
¶ 12 (App. 2023) (internal citation omitted). Incarceration provides neither
a legal defense to abandonment, nor alone justifies termination based on
abandonment, but it is one factor for the court to consider in evaluating a
parent’s ability to perform his or her parental obligations. Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 250 ¶ 22 (2000). When a parent cannot
exercise traditional methods to bond with his child, “he must act
persistently to establish the relationship however possible and must
vigorously assert his legal rights to the extent necessary.” Id. (quoting In re
Pima Cnty. Juv. Sev. Action No. S-114487, 179 Ariz. 86, 97 (1994)).

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¶15 In this appeal, Father argues the court’s finding he abandoned
N.L. is not supported by reasonable evidence because he made “more than
minimal efforts” to maintain contact with N.L. He contends the record
demonstrates that he cared for N.L. for the first five months of his life and
that he had contact with N.L. through visits, telephone calls, and emails for
the first few years of his incarceration. “[T]he juvenile court’s legal
conclusions regarding [abandonment]—which must be established by
‘clear and convincing’ evidence at the juvenile court level—will be affirmed
unless they are clearly erroneous.” Brionna J., 255 Ariz. at 478–79 ¶ 31.
Further, “the question of whether the statutory factor is supported by the
mandated quantum of evidence will not be disturbed unless [we]
determine[] ‘as a matter of law that no one could reasonably find the
evidence to be clear and convincing.’” Id. (quoting Murillo v. Hernandez, 79
Ariz. 1, 9 (1955)).

¶16 Before his incarceration, Mother described Father as “dozing
off, basically on the verge of death every day” because of his drug use. He
prioritized substance abuse over establishing a relationship with his child
by using drugs daily. Indeed, he tested positive for heroin (and other drugs)
on the day N.L. was born. And although Father testified about his stint as a
stay-at-home dad, that lasted only five months before he was incarcerated.

¶17 After his incarceration, Father continued to undermine his
relationship with N.L. by repeatedly committing drug and conduct-related
offenses. He acknowledged at trial that his conduct while incarcerated
resulted in him losing visitation privileges and being transferred to a prison
in Yuma, far away from where Mother and N.L. lived. He also used
telephone calls and emails, paid for by Mother, to ask her for favors and for
money, instead of inquiring about his child. He has not sent N.L. a letter or
card in three years, although according to Mother it has been much longer.
Therefore, reasonable evidence and inferences support the court’s finding
that he did not establish and maintain a relationship with N.L. before and
after his imprisonment.

¶18 The evidence in the record also supports the court’s finding
that Father never provided financial support for N.L. Although lack of
support alone does not constitute abandonment, it is a factor the court
considers when combined with “a poor history of visitation or contact.” In
re Pima Cnty. Sev. Action No. S-1607, 147 Ariz. 237, 239 (1985); see also Michael
J., 196 Ariz. at 250–51 ¶¶ 21, 24 (considering an incarcerated parent’s level
of support in determining abandonment). Before his incarceration, Father
was unemployed and provided no financial support for his son; and
whatever money he earned from selling drugs he spent on his addictions.

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Decision of the Court

Nor did he provide any financial support for N.L. after his release from
prison despite having employment. He also acknowledged at trial he had
no evidence to show he had ever supported N.L.

¶19 The record establishes that Father has not “provided
reasonable support, maintained regular contact, made more than minimal
efforts to support and communicate with the child, and maintained a
normal parental relationship.” Michael J., 196 Ariz. at 249–50 ¶ 18.
Therefore, reasonable evidence supports the court’s findings, and its
conclusion that Father abandoned N.L. is not clearly erroneous because, as
a matter of law, reasonable persons could find this evidence to be clear and
convincing. See Brionna J., 255 Ariz. at 478–79 ¶¶ 30–31.

¶20 Father does not challenge the sufficiency of the court’s finding
that termination of his parental rights was in N.L.’s best interests. We
therefore accept that finding and do not address it further. See Michael J.,
196 Ariz. at 249 ¶ 13.

CONCLUSION

¶21 For the foregoing reasons, we affirm.

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

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