In re the Appeal in Yuma County Juvenile Court Action Number J-87-119

779 P.2d 1276, 161 Ariz. 537, 36 Ariz. Adv. Rep. 51, 1989 Ariz. App. LEXIS 165
CourtCourt of Appeals of Arizona
DecidedJune 6, 1989
DocketNo. 1 CA-JUV 88-039
StatusPublished
Cited by12 cases

This text of 779 P.2d 1276 (In re the Appeal in Yuma County Juvenile Court Action Number J-87-119) 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 Yuma County Juvenile Court Action Number J-87-119, 779 P.2d 1276, 161 Ariz. 537, 36 Ariz. Adv. Rep. 51, 1989 Ariz. App. LEXIS 165 (Ark. Ct. App. 1989).

Opinions

OPINION

KLEINSCHMIDT, Presiding Judge.

This is an appeal from an order of the superior court terminating the parental rights of the father of a boy who is now twelve years of age. The question on review is whether the trial judge abused his discretion in finding that the father had abandoned the child. We conclude that the trial judge did not abuse his discretion, and we affirm the order of termination.

The facts are as follows. The child’s father and mother were married in 1976 in the State of Missouri. The child was born in February 1977. Approximately two months after the child was born, the parents separated and the mother took the child and moved to the home of her parents in Herrin, Illinois. She filed for divorce in Illinois, and a Judgment of Dissolution of Marriage was entered in November 1978. The mother sought no child support because she did not want the father to have any contact with the child.

In late November or early December of 1978, the couple, although they did not remarry, reunited and lived together for several months in Cassville, Missouri. They separated again, and the mother took the child and went to the home of a friend who lived in Rogers, Arkansas. The mother and the child stayed there for a week and then returned to the home of the mother’s parents in Herrin, Illinois. They lived there for over two years, until around May of 1981. Thereafter, the mother took the child and moved briefly to Carbondale, Illinois, returning to live with her parents in Herrin sometime in 1981. In 1982, the mother married her second husband. It was during that year that she moved three miles away from Herrin, to Cope, Illinois, where she lived until December of 1984, when she and her. husband and the child moved to California. At some time after the wife moved to California, her parents moved to a town fourteen miles from their [539]*539former home. Their telephone number was always listed.

The father, in the eight years following his separation from the mother, made only one effort to contact his former wife. Within a week after she left him in early 1979, the father called her parents’ home in Herrin, Illinois. He was told that his former wife was not there, that the parents did not know where she was, and that he should not try to contact her.

Sometime in 1980, the mother called the former husband’s parents to ask them for a loan. As to her whereabouts, she said only that she was living in Illinois. At the time she called, her former husband was living with his parents, but the two did not talk. Thereafter, there was no contact of any kind until the father ■ received the papers asking him to consent to the adoption of the child by the mother’s second husband.

The father explained his lack of contact with his former wife and son as follows:

I did not know how, I did not know where they resided. I didn’t want to call and cause trouble with her folks, being told not to call her anymore. I didn’t feel it would be the right thing to do to call there.

The trial court found by clear and convincing evidence that the father had abandoned his son. Abandonment will justify termination of the parent-child relationship. A.R.S. § 8-533(B)(l) (Supp.1988). Abandonment is defined as:

[T]he failure of the parent to provide reasonable support and to maintain regular contact with the child, including the providing of normal supervision, when such failure is accompanied by an intention on the part of the parent to permit such condition to continue for an indefinite period in the future. Failure to maintain a normal parental relationship with the child without just cause for a period of six months shall constitute prima facia evidence of abandonment.

A.R.S. § 8-546(A)(l) (Supp.1986).

Abandonment must be shown by clear and convincing evidence. Juvenile Appeal No. JS-5894, 145 Ariz. 405, 410, 701 P.2d 1213, 1218 (App.1985). Clear and convincing evidence is evidence that makes the existence of the issue highly probable. State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). Nonsupport alone is not enough to establish abandonment. Juvenile Appeal No. JS-3594, 133 Ariz. 582, 586, 653 P.2d 39, 43 (App.1982).

Questions of abandonment and intent are questions of fact for resolution by the trial court. Juvenile Appeal No. 4283, 133 Ariz. 598, 601, 653 P.2d 55, 58 (App. 1982). Unless there is no reasonable evidence to support the juvenile court’s finding of facts, we must accept them. Juvenile Appeal No. S-1147, 135 Ariz. 184,185, 659 P.2d 1329, 1330 (App.1983); Juvenile Appeal No. JS-3594, 133 Ariz. at 585, 653 P.2d at 42; Juvenile Appeal No. J-2255, 126 Ariz. 144, 146, 613 P.2d 304, 311 (App. 1980).

The trial court did not abuse its discretion in finding that the father had abandoned his child. We conclude this in the face of the uncontroverted evidence that the mother severed all ties with her former husband and refused to tell him where she and the child were living. In this case the mother justified her conduct by saying that the father had beaten both her and the child and that she feared him. The father denied this emphatically. There was no need for the trial'judge to resolve who was telling the truth on this point because it was not essential to his decision.

We have no desire to encourage, barring real danger to spouses and children, the kind of behavior the mother engaged in here. Indeed, Division Two of this court has found that such conduct rebuts the presumption of abandonment that ensues from a failure to support or remain in contact with a child. In Juvenile Appeal No. S-1182, 136 Ariz. 432, 666 P.2d 532 (App.1983), the decision of the trial court terminating the parental relationship between a father and his child was set aside because the whereabouts of the mother and child were unknown to the father for about two years and the mother intentionally wanted to sever any relationship between the father and child. Id. at 433, 666 [540]*540P.2d at 533. The decision in Juvenile Appeal No. S-1182 does not control the case now before us. From all we can tell from that case, the father had utterly no way of even' beginning to try to find the mother and child in the less than two years they were out of touch. While we can envision many situations in which such conduct will conclusively rebut any contention of abandonment, this is not such a case.

Here, the father had an avenue of contact with his child through his former in-laws.

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Bluebook (online)
779 P.2d 1276, 161 Ariz. 537, 36 Ariz. Adv. Rep. 51, 1989 Ariz. App. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-yuma-county-juvenile-court-action-number-j-87-119-arizctapp-1989.