Appeal in Maricopa County Juvenile Action No. JS-500274, Matter of

• Decision Date: 18 September 1990
• Docket Number: JS-500274,No. CV-89-0379-PR,CV-89-0379-PR
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.
• Court: Arizona Supreme Court

Page 730

804 P.2d 730

167 Ariz. 1

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JS-500274.

No. CV-89-0379-PR.

Supreme Court of Arizona, In Banc.

Sept. 18, 1990.

[167 Ariz. 2] Carmichael & Powell, P.C. by Laurence B. Stevens and Claudia J. Kroman, Phoenix, for Natural Father.

Helm & Kyle, Ltd. by Margaret R. Tinsley, Tempe, for Natural Mother.

OPINION

MOELLER, Justice.

JURISDICTION

In this proceeding a mother seeks to terminate a father's parental rights. The juvenile court found the father had abandoned his son and granted the request for termination. The court of appeals reversed, holding that, notwithstanding the finding of abandonment, the termination order was not supported by evidence showing that termination was in the best interests of the child. 163 Ariz. 19, 785 P.2d 588. Pursuant to Rule 28, Rules of Procedure for the Juvenile Court, 17B A.R.S., we granted the mother's petition for review in part. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3).

FACTS

We use only fictitious first names for the parties and the child. Gary and Lynn are the natural father and mother of Bobby, born December 7, 1984. They met in November 1983 when Lynn was a senior in high school and Gary was a freshman in college. By April 1984, Lynn realized she was pregnant. Gary assisted in preparations for the birth and attended birthing classes. He was present when Bobby was born and paid half of the medical bills for the birth. He again paid half of the medical bills when Bobby was readmitted to the hospital for a subsequent medical problem.

During the spring of 1985, Lynn and the baby lived with Lynn's parents, where Gary regularly visited. In June of 1985, Gary went to Alaska, where his parents lived, to work on an oil rig. During that summer Gary sent Lynn a $100 check each month. Towards the end of the summer, at Gary's request, Lynn flew to Alaska to meet Gary's parents. While in Alaska, Gary bought Lynn a ring and they became engaged to be married. In the fall, Gary purchased Lynn a car and drove back to Arizona to resume school.

From August 1985 to April 1986 Gary visited Lynn and Bobby once or twice a week. However, Gary's relationship with Lynn deteriorated and they "separated" in April 1986. After the breakup, Gary did not start visiting his child until June 1986. During the summer Gary visited Bobby about three times a week, and they would swim or eat dinner together.

In August 1986, Gary and Lynn resumed their relationship. They took Bobby to visit Gary's grandmother in Hawaii that same month, and Gary paid for the trip. Upon their return, Gary returned to school and part-time work. He went to Lynn's house regularly to see his son. However, on February 7, 1987, Lynn unexpectedly terminated the relationship.

At the time of the breakup, Lynn indicated to Gary she did not want the breakup to affect Gary's relationship with Bobby. Gary did see his child on February 22, 1987, when he went to Lynn's house to return some of her items. Testimony at trial indicated that Gary was emotionally shaken by the breakup.

Gary did not go to see Bobby again, but Lynn took Bobby to see Gary on August 20, 1987, because she was upset that Gary had not come to see his son since February. The meeting resulted in some testiness. Lynn refused to let Gary wake Bobby who was sleeping at the time, and Gary stated that if he could not be "a 100% father" to Bobby, he would not be a father at all. The meeting ended with Lynn advising Gary that he would not see his son again.

After this meeting there was no further contact between Gary and Bobby. Gary provided no support, gifts, cards or letters, and made no phone calls. Gary's mother continued to call, write and send gifts to Bobby until December 1987 when Lynn argued with her over an unrelated matter.

Lynn initiated a Petition for Termination of Parental Rights on June 20, 1988. Gary opposed the petition and filed a separate Complaint to Establish Paternity and Parental Rights. Pursuant to A.R.S. § 8-536, the trial court appointed a caseworker, Sue L. McLaughlin, to investigate the situation and make a preliminary recommendation on the issue of termination. McLaughlin sent form letters to Gary and Lynn. On July 25, 1988, McLaughlin met with Lynn and her mother for approximately one hour. McLaughlin did not speak with Bobby, who was then about three and a half years old. Before speaking to Gary, McLaughlin submitted her report on July 27, 1988. In it, she attributes the following statement to Lynn: "If Gary was serious about having a relationship with Bobby, she [Lynn] would let him see the child." Report at p. 4. Without further investigation, McLaughlin recommended termination of Gary's parental rights.

Gary called McLaughlin on July 29, 1988, to ask some questions. McLaughlin talked to him for fifteen minutes and asked him some questions and then filed an addendum to her report reflecting the conversation. She noted that she thought there was "room for negotiation" in the case but, once again, recommended termination.

At trial, Lynn explained that she sought to terminate Gary's parental rights so she could name her parents in her will as guardians for Bobby. Additionally, she explained that, in case she married, she wanted her future husband to be able to adopt Bobby.

Gary did not contest Lynn's custody of Bobby, nor did he dispute that Lynn provides a secure and caring environment for him. Gary contended, however, that he had not abandoned his son. He also claimed that his absence from his son's life from February 1987 to August 1988, was excused by extenuating circumstances. He also claimed that he could not visit Bobby at Lynn's parents' home because of the emotional upheaval of the breakup, and because he did not want his son to witness any further arguments between him and Lynn. Gary claimed there was hostility in Lynn's house, and he did not feel welcome. He also argued that his only source of transportation at the time was a motor scooter, and he did not feel it was safe to transport Bobby to another location on this vehicle.

The trial court found that although Gary is "more mature now and is sincere in his desire to establish a father-son relationship with the child," he absented himself from Bobby's life for a period of eighteen months without justification. Therefore, the trial court concluded, abandonment was shown by clear and convincing evidence. Additionally, the trial court found that severance would serve the best interests of Bobby.

The court of appeals reversed the termination order, holding that the evidence did not support a finding that termination was in the best interests of the child. The court of appeals stated that before there may be a lawful termination, the "state" must show that the child is jeopardized by continuation of the parental relationship. There being no showing of such jeopardy, the court of appeals reversed the termination order. Although we disagree with some of the court of appeals' reasoning, we agree with the result it reached.

ISSUE PRESENTED

Whether there is sufficient evidence to support the finding that termination of parental rights would be in the best interests of the child.

DISCUSSION

The mother's petition for termination relied on the statutory basis of abandonment. A.R.S. § 8-533(B)(1) provides:

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. ....

"Abandoned" is defined in § 8-546(A)(1), which provides:

"Abandoned" means the 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 facie evidence of abandonment.

In order for abandonment to exist, there must be clear and convincing evidence of intentional conduct on the part of a parent that evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Matter of Appeal in Pima County Severance Action No. 1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985). The concept of abandonment and terms such as "reasonable support" or "normal parental relationship" are somewhat imprecise and elastic. Therefore, questions of abandonment and intent are questions of fact for resolution by the trial court. Appeal of Maricopa County Juvenile Action No. JS-4283, 133 Ariz. 598, 601, 653 P.2d 55, 58 (App.1982).

The trial court found a prima facie case of abandonment because the father had no contact with his son for more than six months. The trial court found "the father has not made a sincere effort to maintain a parental relationship with his child, has put his own needs ahead of his child's, consciously disregarding his parental rights and responsibilities, and has demonstrated by his conduct an intent to abandon his relationship with his child." The trial court also found that the father failed to establish "just cause" for his absence.

As we read the court of appeals' opinion, the validity of the abandonment finding is assumed. The father has not challenged this finding by cross-petition. Consequently, we do not ascertain, but simply assume for purposes of this review, that the finding of statutory abandonment is reasonably supported by the record.

Nonetheless, a finding of the statutory grounds of abandonment standing alone does not permit termination of parental rights. A severance must also be in the best interests of the child. Matter of Appeal in Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, ...