In Re the Appeal in Maricopa County Juvenile Action No. JS-6520

756 P.2d 335, 157 Ariz. 238, 2 Ariz. Adv. Rep. 32, 1988 Ariz. App. LEXIS 37
CourtCourt of Appeals of Arizona
DecidedFebruary 18, 1988
Docket1 CA-JUV 397
StatusPublished
Cited by55 cases

This text of 756 P.2d 335 (In Re the Appeal in Maricopa County Juvenile Action No. JS-6520) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Appeal in Maricopa County Juvenile Action No. JS-6520, 756 P.2d 335, 157 Ariz. 238, 2 Ariz. Adv. Rep. 32, 1988 Ariz. App. LEXIS 37 (Ark. Ct. App. 1988).

Opinion

OPINION

GRANT, Judge.

The natural father of three minor children appeals from an order of the juvenile court terminating his parental rights. The only issue on appeal is whether the evi *240 dence supported the grounds for termination.

FACTS

Three children, 12-year-old David Ray, 11-year-old Teresa Marie and 7-year-old Johan Michael, are the subjects of the termination proceeding. Appellant is the biological father of all three children. David and Teresa have the same mother, Kathleen J.; Johan’s mother is Cheryl M., Kathleen J.’s parental rights were terminated and Cheryl M. signed a consent, relinquishing her rights to Johan.

The youngest child, Johan, first came to the attention of the Arizona Department of Economic Security (DES) in January, 1982. At that time his mother was jailed on a charge of drunk and disorderly conduct. Prior to her arrest, witnesses reported that she was both verbally and physically abusive to Johan. On February 16, 1982, DES placed Johan in a temporary foster home. The court subsequently found him dependent and made him a ward of the court. For three months in 1982 Johan was placed in the physical custody of appellant. This placement, however, proved unsuccessful, and Johan has remained in foster care since August of 1982. Presently he is in a “fost-adopt placement,” which is a potential adoptive home.

The two older children, David and Teresa, came to the attention of DES in May 1982, when their maternal grandmother contacted the agency and advised it that she was unable to continue caring for her grandchildren. The children's mother had left the children in the grandmother’s care for “the weekend” two weeks earlier. Subsequently, the grandmother received a letter from her daughter, advising her that she was in New Mexico and could not take the children. David and Teresa were later placed in foster care and made wards of the court on January 17, 1983. The children’s chances for adoption are “slim” according to DES; therefore long-term foster care is the probable treatment plan.

All three children have been in foster care since mid-1982. The two oldest children are in the same home. The youngest child, Johan, has seen his half-siblings infrequently.

Between 1982 and 1985, DES offered appellant a wide range of services to facilitate reintegration of the family. These included parenting classes, mental health counseling, and referrals to a variety of agencies for treatment of an alcohol problem. Appellant declined or failed to cooperate with these remedial services, claiming he was capable of controlling his admitted life-long drinking problem without assist anee.

Appellant visited David and Teresa on a continuous, if sporadic, basis prior and subsequent to the filing of the petition for severance. DES did not require appellant to arrange visitation through the agency because he had a prior relationship with the foster parents of David and Teresa. Because of this arrangement, DES was unaware of the exact number of these visits. Appellant’s contacts with Johan, who was in a different foster home than the other two children, has been nearly non-existent. In 1983, appellant saw his then 2-year-old son a total of four times. Appellant visited Johan only once in 1984 at Christmastime and once in 1985, again during the Christmas holidays.

In July 1985, DES filed a petition to terminate the parent-child relationship between appellant and his three children, alleging abandonment. In October 1985 and May 1986, appellant then entered into agreements with DES to work for his children’s return. Appellant agreed to attend Alcoholics Anonymous, have individual therapy, maintain a regular visitation schedule with his children, and obtain a suitable home for all of them. The termination hearing was continued in order to provide appellant an opportunity to regain his children.

Appellant failed to follow through on the provisions of these agreements, and on October 17, 1986, DES amended its petition for termination to include the grounds of inability to parent due to mental illness and/or a history of chronic alcohol abuse pursuant to A.R.S. § 8-533(B)(3) and length of out-of-home placement pursuant *241 to A.R.S. § 8-533(B)(6)(a) and (b). The juvenile court terminated the parent-child relationship between appellant and Johan based on abandonment, mental illness and alcohol abuse, and both out-of-home placement grounds. Appellant’s rights to David and Teresa were terminated on all of the above except for abandonment grounds.

LEGAL ISSUES ABANDONMENT

Unquestionably, parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, while the best interest of the child is a valid factor in deciding whether to terminate the parent-child relationship, it cannot be the sole basis for termination. Juvenile Appeal S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 873 (1985). However, this right to parent is not absolute. The state has an interest in the welfare and health of children. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). When the welfare of the child is in serious jeopardy, the state will act to protect the child and will interfere with this valued relationship. Juvenile Appeal J-5666, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Arizona courts have recognized that parental rights should be terminated only when concerted effort to preserve the relationship fails. Juvenile Appeal S-111, 25 Ariz.App. 380, 387, 543 P.2d 809, 817 (1975). Towards this end, DES has an affirmative duty to make all reasonable efforts to preserve the family relationship. DES v. Mahoney, 24 Ariz.App. 534, 540 P.2d 153 (1975).

A.R.S. § 8-533 sets forth the grounds for termination of parent-child relationships. The statute reads in pertinent part:

B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court may also consider the needs of the child:
1. That the parent has abandoned the child.
3.

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Cite This Page — Counsel Stack

Bluebook (online)
756 P.2d 335, 157 Ariz. 238, 2 Ariz. Adv. Rep. 32, 1988 Ariz. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-maricopa-county-juvenile-action-no-js-6520-arizctapp-1988.