Kenneth B. v. Tina B.

243 P.3d 636
CourtCourt of Appeals of Arizona
DecidedNovember 18, 2010
Docket1 CA-JV 10-0044
StatusPublished

This text of 243 P.3d 636 (Kenneth B. v. Tina B.) 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
Kenneth B. v. Tina B., 243 P.3d 636 (Ark. Ct. App. 2010).

Opinion

243 P.3d 636 (2010)

KENNETH B. and Kelly B., Appellants,
v.
TINA B., Appellee.

No. 1 CA-JV 10-0044.

Court of Appeals of Arizona, Division 1, Department B.

November 18, 2010.

*637 Riggs, Ellsworth & Porter, P.L.C. by Michael R. Ellsworth, Show Low, Attorneys for Appellants.

Harlan W. Green, Payson, Attorney for Appellee.

OPINION

JOHNSEN, Judge.

¶ 1 This appeal requires us to consider the statutory meaning of "abandonment" in the context of an unusual non-custodial parenting arrangement. Because the superior court apparently misapplied the law in deciding whether the mother abandoned her children, we vacate the court's decision in part and remand.

FACTS AND PROCEDURAL HISTORY[1]

¶ 2 Tina and her former husband divorced in March 2004, when their daughter was two and their son was 15 months old. For more than nine months prior to the dissolution, the children lived primarily with Kenneth and Kelly, who are Tina's brother and sister-in-law. At the time of the dissolution, Tina and her former husband ("Father") agreed they would share joint legal custody of the two children but that Kenneth and Kelly would have "physical care, control and custody of the . . . children until further order of the court." The dissolution decree incorporated the settlement agreement and provided that Father would pay $1,000 a month to Kenneth and Kelly in child support "until further order of the court." The decree further required Father to provide medical and dental insurance for the children.

¶ 3 In early 2009, approximately six years after the children came to live with Kenneth and Kelly, Tina moved for change of physical custody. Shortly thereafter, Kenneth and Kelly filed a petition for termination of Tina's parental rights.[2] Their petition alleged Tina had abandoned the children, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1) (2009).[3]

¶ 4 Over two days of trial, the court heard evidence that Tina did not visit the children regularly during the first three years of the arrangement even though her visiting rights were unlimited at the time. When the children were approximately two and three years old, Tina moved nearly four hours' drive away. After relocating, Tina visited the children intermittently. During one visit in 2006, Tina absconded with the children. The police were called, a search was launched and an "Amber alert" was issued. Tina heard the Amber alert on the radio and fled with the children. Later that day, Tina and the children were found at a women's shelter in Phoenix. Tina pled guilty to custodial interference and Kenneth and Kelly obtained a restraining order prohibiting any contact between Tina and the children.

¶ 5 After the restraining order had been in place for about six months, Tina unsuccessfully petitioned the court to have the order lifted so she could visit the children. Six months after that, Tina renewed her request for parenting time. The court then granted her two supervised four-hour visits with the children each month. Over the 18 months that followed, Tina used only about a quarter of the visits allotted to her, and when she did visit, she often left before the approved four *638 hours. Tina's absences were explained in part by health issues she suffered during a five-month period beginning in September 2008. After Kenneth and Kelly filed their petition for termination, Tina visited the children more regularly. During the seven or eight months prior to trial, Tina missed only one scheduled visit.

¶ 6 As noted, the dissolution decree ordered Father to provide financial support for the children; there was no evidence Father had not complied with that obligation. Although the dissolution decree did not require Tina to provide any financial support for the children, much was made at trial about the fact that she had failed to offer them significant financial support. When Tina's daughter was quite young, Kenneth and Kelly once asked Tina to contribute to a medical bill for the girl, but Tina refused to do so. Kenneth and Kelly never again asked Tina for monetary support. Tina testified that, although she did not provide money for the children, she regularly brought them snacks, clothing and toys.

¶ 7 The evidence also showed that except for attending a single doctor's appointment, Tina has not been involved in any decision-making regarding the children's medical care. Nor has she expressed interest in or participated in decision-making regarding the children's religion or education. On the other hand, Kenneth and Kelly generally make no effort to initiate communication with Tina regarding decisions about the children.

¶ 8 A clinical psychologist, Dr. Andre Rousseau, testified the children have virtually no bond with Tina and that they should stay in their current home "perhaps for the rest of their child life." He explained that the children's bonding with Tina likely has been hindered by the presence of others at her visits, and opined that supervision no longer may be necessary for those visits. Rousseau further testified that tension between Tina on the one hand and Kenneth and Kelly on the other might have impaired the children's acceptance of Tina. At least some of the tension stems from Tina's repeated unsubstantiated reports to Child Protective Services and police against Kenneth and Kelly.

¶ 9 In a written order issued after trial, the superior court found that since Tina's supervised parenting time began in 2007, "[s]he has been fairly consistent in her visits, with the exception of medical issues." Nevertheless, the court found the children "have almost no bonding with [Tina]." It found Tina "is unable to parent" because she is unable to bond with the children and because "there are some issues of stability, both in her job situation and her current living environment." The court added that it had concerns about Tina's mental and emotional stability.[4]

¶ 10 In the end, the court denied the petition to terminate:

[A] Petition for Termination of Parental Rights will not be granted unless the Court finds that the Petitioners have shown by clear and convincing evidence that there are grounds sufficient to terminate [Tina's] parental rights. Looking at A.R.S. § 8-533, and looking at the definition of abandonment, the Court cannot find that [Tina] has only maintained the minimal contact with the children. The Court cannot find an intentional relinquishment, even though [Tina] has not paid any child support. . . . Based upon the foregoing the Court will not grant the Petition to Terminate [Tina's] parental rights.

The court appointed Kenneth and Kelly as guardians of the two children and ruled that "visitation will be left completely up to the guardians unless a Petition for Visitation is filed with the Court."[5]

¶ 11 Kenneth and Kelly appealed from the superior court's judgment. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and pursuant to A.R.S. § 12-2101(B) (2003).

*639 DISCUSSION

A. Standard of Review.

¶ 12 We review the superior court's order for an abuse of discretion and will affirm if it is supported by sufficient evidence in the record. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz.

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