Jose M. v. Eleanor J.

316 P.3d 602, 234 Ariz. 13, 2014 WL 118024, 2014 Ariz. App. LEXIS 7
CourtCourt of Appeals of Arizona
DecidedJanuary 14, 2014
DocketNo. 1 CA-JV 13-0069
StatusPublished
Cited by18 cases

This text of 316 P.3d 602 (Jose M. v. Eleanor J.) 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
Jose M. v. Eleanor J., 316 P.3d 602, 234 Ariz. 13, 2014 WL 118024, 2014 Ariz. App. LEXIS 7 (Ark. Ct. App. 2014).

Opinion

OPINION

CATTANI, Judge.

¶ 1 This is an appeal from a juvenile court order granting a mother’s request to terminate her child’s father’s parental rights. For reasons that follow, we vacate and remand.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 S.M. was born in 2006; her biological parents are Jose M. (“Father”) and Eleanor J. (“Mother”). In 2009, the Arizona Department of Economic Security filed a paternity and support action against Father. Father stipulated to paternity, but did not attempt to establish parenting time. Mother assigned her rights to receive support from Father to the State because she received public assistance for the child. The court issued an order confirming paternity, but found that Father’s income consisted only of Social Security disability payments, and that his earnings were below the amount at which child support is required. Accordingly, Father was not ordered to pay any back child [15]*15support, and the court did not order prospective support payments.

¶ 3 In February 2012, Father initiated a new proceeding to establish parenting time. While that matter was pending, Mother filed a petition in July 2012 to terminate Father’s parental rights on the ground of abandonment, which Father opposed. Mother requested that the two matters be addressed together, and the juvenile court consolidated them and set the matter for a one-day hearing.

¶ 4 Mother testified that she was 15 years of age and Father was 16 when their child was conceived. Father was present at S.M.’s birth, but since then has had only sporadic contact with the child. Although Mother and Father initially communicated with each other by telephone and through social media, by the time of the hearing they no longer did so.

¶ 5 Mother testified that Father did not see S.M. for four months after her birth, and that he only saw her “here and there” for the rest of 2006. Father did not have any contact with S.M. in 2007, and he saw her “off and on” for two to three months in 2008. Father did not have any contact with S.M. in 2009 and relatively infrequent contact thereafter. He last had contact with S.M. on Father’s Day 2011, approximately eight months before seeking to establish parenting time.

¶ 6 Mother further testified that Father had been abusive and violent toward her during their relationship and afterwards. Mother had a restraining order placed against Father in July 2007. She acknowledged, however, that Father had never been abusive or violent toward S.M.

¶ 7 Mother also acknowledged there were occasions she would not allow S.M. to visit Father, explaining that at times the visits were to occur too late in the evening, and at other times Father had “people [at his residence] that didn’t seem right.” When Mother made arrangements for Father to pick up S.M. at the park across from her residence, Father was late and picked her up or dropped her off at sporadic and late hours.

¶ 8 Mother testified that she also has a son with her fiancé, Eric. Mother indicated that S.M. has a father-daughter bond with Eric and loves her one-year-old brother. Mother, Eric, S.M., and the younger brother live together. Eric has treated S.M. like his own daughter and apparently would like to adopt her.

¶ 9 Father testified that he has a “very close” relationship with S.M., but Mother has kept him from having contact with her. Father admitted he had not been involved in S.M.’s life in the year preceding the hearing, but he attributed his lack of contact and involvement to Mother taking S.M. away from him. Father indicated that Mother had changed her phone number and blocked him from contacting her through social media. Although he knew Mother worked for her father’s company, Father claimed he could not find her at work because the office location had changed, and he did not know the new address.

¶ 10 After taking the matter under advisement, the juvenile court found that Father had made a conscious decision not to have a relationship with S.M., and that he had abandoned her by withholding parental presence, love, care, and financial support. The court found severance to be in S.M.’s best interests because “the termination of the parentfs] rights will free [S.M.] for adoption. And, here the [fiancé] of the Petitioner is willing to adopt. This will provide the child with a stable home and a parent who is willing to consistently support the child financially and emotionally.”

¶ 11 Father timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) section S^SCA).1

DISCUSSION

¶ 12 A parent’s right to “the companionship, care, custody, and management of his or her children” is a fundamental, consti[16]*16tutionally protected right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Under AR.S. § 8-533(B), that right may only be terminated upon a finding that at least one statutory ground for severance has been established by clear and convincing evidence, and that severance is in the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review a juvenile court’s severance order for an abuse of discretion and accept the court’s factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App.2004).

¶ 13 Father contends that the juvenile court erred by finding the statutory ground of abandonment as a basis for terminating his parental rights, and that the court erred by finding severance to be in S.M.’s best interests.

I. Abandonment.

¶ 14 Under AR.S. § 8-533(B)(l), parental rights may be terminated based on abandonment, as defined in AR.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.

Abandonment is measured by a parent’s conduct, not subjective intent. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). When “circumstances prevent the ... father from exercising traditional methods of bonding 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.4 at 250, ¶ 22, 995 P.2d at 686 (quotation omitted).

¶ 15 Here, the juvenile court based its conclusion that Father had abandoned S.M. in large part on the mistaken premise that Father had failed to provide required financial support for S.M. The court’s February 11,2013 minute entry states:

[Cjhild support was not set [in the 2009 action] because there was no information as to father’s income.

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Cite This Page — Counsel Stack

Bluebook (online)
316 P.3d 602, 234 Ariz. 13, 2014 WL 118024, 2014 Ariz. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jose-m-v-eleanor-j-arizctapp-2014.