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

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-JV 24-0071
FILED 09-26-2024

Appeal from the Superior Court in Maricopa County
No. JS21741
The Honorable Christopher Whitten, Judge

AFFIRMED

COUNSEL

Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant

Kellee McDowell, Phoenix
Appellee

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
 IN RE TERM OF PARENTAL RIGHTS AS TO E.M.
Decision of the Court

M c M U R D I E, Judge:

¶1 Randolph Hatch (“Father”) appeals the juvenile court’s order
terminating his parental rights to Pat, born in 2008.1 We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Kellee McDowell (“Mother”) and Father are Pat’s biological
parents. Mother and Father never married, ending their relationship a few
months after Pat was born.

¶3 The juvenile court granted Mother and Father joint
decision-making for Pat but granted Mother the final say on school and
medical-related disputes. Father had overnight parenting time with Pat
until kindergarten. After that, Father exercised his parenting time less and
less, only picking Pat up from school a few times during her fourth-grade
year and stopping altogether in middle school.

¶4 In 2020, at the start of COVID-19, Mother did not allow Father
to take Pat on a trip to California because Pat “did not feel safe” taking the
trip with Father as he would not take precautions. During COVID-19,
Father did not have contact with Pat for several months until Father’s Day
in 2021. Father most recently saw Pat at his mother’s funeral in January
2022.

¶5 In November 2022, Mother moved to change Pat’s name
because Pat wanted to transition from a boy to a girl. Mother contacted
Father, informing him of Pat’s name-change trial in January 2023. Father
opposed Pat’s name change and would not refer to Pat by her preferred
name or pronouns. After researching the impact of transitioning on
adolescents’ mental health, Father expressed concern and wanted an
opportunity to talk to Pat about transitioning. But Pat did not respond to
his text messages.

¶6 After the name-change trial, Mother petitioned the family
court to modify the legal decision-making orders. In September 2023,
Mother petitioned to terminate Father’s parental rights to Pat on the
grounds of abandonment, neglect, and chronic substance abuse. Father
later petitioned to enforce the family court’s visitation and custody orders.

1 We use a pseudonym to protect the child’s identity.

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The family court dismissed Mother and Father’s petitions because the
termination proceedings were ongoing.

¶7 In November 2023, the juvenile court held an initial
termination hearing and directed Father to complete a social study before
the pretrial conference. A child protective services case manager conducted
the social study. According to the study, Pat wanted to have Father’s
parental rights terminated because she found “his attitude regarding
transgender difficult and . . . he bullies her about her life choices.” After
spending time with Mother and talking with Father, the case manager
found that Father did not express an interest in developing a relationship
with Pat and instead “only want[ed] [to talk to Pat] to express his
disapproval [of her desire to transition]” which would cause her “undue
distress and trauma.” Based on her observations, the case manager
concluded that the termination of Father’s parental rights was in Pat’s best
interests.

¶8 In April 2024, the juvenile court held a termination hearing.
Father blamed Mother for his lack of contact with Pat, but the court found
Father’s testimony lacked credibility. Father conceded that he had not
provided Pat with financial support in seven years, had not sent her cards,
letters, or gifts, and had only contacted Pat recently through text messages
to which she did not respond.

¶9 After the hearing, the juvenile court denied termination under
the neglect, abuse, and prolonged substance abuse grounds, finding Mother
had not met her burden by clear and convincing evidence. But it granted
termination on the abandonment ground. After considering Pat’s wishes
and the effect of Father’s opinions on Pat’s mental health, the court found
that the termination of Father’s parental rights was in Pat’s best interests.

¶10 Father timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

DISCUSSION

¶11 Father argues that “the evidence does not support the
termination of [his] parental rights” and termination “is not in [Pat’s] best
interest” because his refusal to support Pat’s life choices around
transitioning “is not a reason to terminate the parent-child relationship.”
He also argues that the juvenile court should not have terminated his
parental rights because of the pending family court case.

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¶12 Father’s second argument lacks merit. Mother and Father
filed petitions in the family court, which the court dismissed because the
termination proceedings were ongoing. See Ariz. R. Fam. Law P. 5.1(a) (The
“juvenile division has jurisdiction over the children” if simultaneous cases
are pending.). If the juvenile court had reached a different result, the parties
could have reinstituted the family-court filings.

¶13 Turning to the termination order, we will affirm such an order
unless the juvenile court abused its discretion or its factual findings were
clearly erroneous. See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004). “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, [and] judge the credibility of witnesses.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We accept the juvenile court’s
factual findings unless no reasonable evidence supports them. Id. We do
not reweigh the evidence on appeal. Mary Lou C., 207 Ariz. at 47, ¶ 8.

¶14 The juvenile court granted termination on the abandonment
ground. See A.R.S. § 8-533(B)(1). Under 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.
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.

In determining abandonment, the juvenile court considers relevant factors,
including whether the “parent has provided reasonable support,
maintained regular contact, made more than minimal efforts to support and
communicate with the child, and maintained a normal parental
relationship.” Kenneth B. v. Tina B., 226 Ariz. 33, 36, ¶ 15 (App. 2010)
(citation omitted). “What constitutes reasonable support, regular contact,
and normal supervision varies from case to case.” Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 250, ¶ 20 (2000) (citation omitted). Abandonment
exists if a parent makes only “minimal efforts to support and communicate
with the child.” Kenneth B., 226 Ariz. at 36, ¶ 14 (quoting A.R.S. § 8-531(1)
(2007)).

¶15 Father does not meaningfully challenge the juvenile court’s
finding of abandonment, and the record supports that finding. Father has

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not had in-person contact with Pat in over two years. See A.R.S.
§ 8-531(A)(1) (“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.”). Father picked Pat up from school when Pat
was younger and had overnight visits with her. But his visits with Pat
decreased, and eventually, they stopped as she got older. Father contacted
Mother a couple of times during COVID-19 about spending time with Pat.
But Mother would not let Father see Pat because he would not take the
necessary COVID-19 precautions to make Pat comfortable. Despite Father’s
complaints that Mother interfered with his parental relationship, he never
sought to enforce parenting time before the termination proceedings began.
The court found his testimony lacked credibility, and “Father never
complained in writing to the Court or anyone else that Mother was unjustly
limiting his access to [Pat].” The last time Father saw Pat was at his mother’s
funeral in January 2022.

¶16 Father also conceded he had not financially supported Pat in
seven years and had not sent her gifts, letters, or cards. See Michael J., 196
Ariz. at 251, ¶ 24 (Abandonment supported by Father’s failure to send gifts,
letters, and cards.). Father sometimes texted Pat, but she did not respond.
Father tried to contact Pat and expressed a desire to be involved in her
decision-making, but these efforts were minimal and did not reflect a
normal parental relationship. See Angel S. v. Dep’t of Child Safety, 237 Ariz.
132, 139, ¶ 23 (App. 2015) (Minimal phone contact, without personal
contact, does not maintain a normal parental relationship with a young
child.). Thus, reasonable evidence supports the juvenile court’s finding of
abandonment.

¶17 Father suggests the juvenile court improperly terminated his
parental rights because he disagreed with Pat’s gender identification and
life choices around transitioning. As explained below, the court terminated
Father’s parental rights partly because his opinions affected Pat’s mental
health and his relationship with her. But the court did not terminate
Father’s rights based on his opinions alone. The court found that Father’s
“positions on these issues are not what this case is about.” Father failed to
develop a parental relationship with his child, support his child
emotionally or financially, and then wanted to exercise parental control
over her decisions.

¶18 After finding at least one statutory ground for termination,
the juvenile court must determine whether termination would be in the
child’s best interests. Michael J., 196 Ariz. at 249, ¶ 12. The petitioner must
show either that “(1) the child will benefit from [termination]; or (2) the

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child will be harmed if [termination] is denied.” Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 150, ¶ 13 (2018). The court must consider the totality
of the circumstances in its best interests determination. Id. at 150-51, ¶ 13.

¶19 Reasonable evidence supports the juvenile court’s finding
that termination was in Pat’s best interests as continuing the relationship
with Father “would be detrimental to [Pat] because Father has not shown a
respect for [her] choices, her development, or her mental health needs for
many years.” As stated in the social study, Pat wanted Father’s rights
terminated “because he bullie[d] her about her life choices.” Mother
testified that Father had not contacted her over the past few years to ask
about Pat’s well-being or if she needed anything. He only started showing
concern after Mother told him about Pat’s name change.

¶20 The evidence shows that Father’s opinions about Pat
transitioning affected his ability to develop a normal parental relationship
with Pat. But independent of his belief about her transitioning, he failed to
support his child in a manner that was conducive to a parental relationship.
During the name change trial, with Pat present, Father discussed his
opposition to the “LGBTQ community” at length and afterward would not
refer to Pat by her preferred pronouns. The case manager found that
because of Father’s strong opinions, “[h]e did not want to consider or talk
about anything that did not [agree] with his opinion.” Father’s behavior did
not suggest that he wanted to develop a relationship with Pat but that he
wanted to tell her he disagreed with her choices, which the case manager
believed would “cause undue distress and trauma to [Pat].”

¶21 The case manager concluded that terminating Father’s rights
would be in Pat’s best interests because “father’s refusal to even
acknowledge [Pat’s] feelings . . . is abusive and detrimental to [her] mental
health.” Thus, the court did not abuse its discretion by terminating Father’s
parental rights because denying the petition could harm Pat. See Kent K. v.
Bobby M., 210 Ariz. 279, 287, ¶ 37 (2005) (“[T]he child’s interest in obtaining
a loving, stable home, or at the very least avoiding a potentially harmful
relationship with a parent, deserves at least as much weight as that
accorded the interest to the unfit parent in maintaining parental rights.”).

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CONCLUSION

¶22 We affirm.

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

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