Appeal in Maricopa County, Juvenile Action No. JS-3594, Matter of

• Decision Date: 21 September 1982
• Docket Number: JS-3594,CA-JUV,No. 1,1
• Citation: 133 Ariz. 582,653 P.2d 39
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO.160.
• Court: Arizona Court of Appeals

Page 39

653 P.2d 39

133 Ariz. 582

In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. JS-3594.

No. 1 CA-JUV 160.

Court of Appeals of Arizona Division 1, Department B.

Sept. 21, 1982.

Review Denied Oct. 26, 1982.

Hash, Cantor & Tomanek by John M. Tomanek, Alena Cantor, Phoenix, for appellant

Morris & Walker by Mike Walker, Kent Mecham, Phoenix, for appellee.

OPINION

GRANT, Judge.

This is an appeal from an order of the juvenile court terminating the parent-child relationship between appellant and his children, Paul Howell Rosbury, Jr. and Shawn Rosbury. We reverse the court's order because we find that the evidence does not support the court's finding of abandonment.

Appellant Paul Rosbury and appellee Naomi Connizzo were married in February, 1966 and divorced in January, 1974, in Florida. There were two children born of the marriage, Paul Rosbury, Jr. and Shawn Rosbury. Appellee was given custody of the children, and appellant was granted visitation rights. In March 1975, appellee moved to Missouri with the children. She subsequently married Joseph V. Connizzo, her present husband. In July, 1978, appellee and her husband moved to Arizona.

On April 8, 1980, appellee petitioned the court for termination of the parent-child relationship between the children and their natural father on the grounds that appellant had abandoned the children, that he had made no effort to maintain a parental relationship with the children, and that he had not provided any support for the children since July, 1977. The petition also stated that Joseph Connizzo, appellee's present husband, was seeking permission to adopt the children.

After a hearing on the matter, the trial court made the following findings and conclusions of law:

1. That the Court has jurisdiction over this matter pursuant to A.R.S. § 8-531 et seq 2. That the Respondent has abandoned the children and has made no effort to maintain a parental relationship with the children. In the opinion of the Court, the evidence indicated that the Respondent has made only token efforts to support and/or communicate with the children.

THEREFORE, IT IS ORDERED terminating the parent-child relationship between Respondent, PAUL HOWELL ROSBURY, SR., and the children, PAUL HOWELL ROSBURY, JR., and SHAWN ROSBURY.

IT IS FURTHER ORDERED appointing the Petitioner as guardian of the children and fixing in them the responsibility for support of same.

The father appeals from the order of the trial court, and raises the issue, inter alia, whether the evidence presented at the severance hearing warrants the finding that he has abandoned his children.

A.R.S. § 8-533(B)(1) (Supp.1982) provides that one of the grounds which justifies the termination of the parent-child relationship is evidence:

[t]hat the parent has abandoned the child or that the parent has made no effort to maintain a parental relationship with the child. It shall be presumed the parent intends to abandon the child if the child has been left without any provision for support and without any communication from such parent for a period of six months or longer. If in the opinion of the Court, the evidence indicates that such parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by such parent.

The Arizona statute governing the burden of proof required for terminating a parent-child relationship is A.R.S. § 8-537(B) and provides:

The court's findings with respect to grounds for termination shall be based upon a preponderance of the evidence under the rules applicable and adhering to the trial of civil causes. [emphasis added]

The Supreme Court of Arizona reviewed this standard of proof in light of the recent United States Supreme Court decision, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and concluded that the standard is unconstitutional. In the Matter of the Appeal in Pima County Juvenile Action No. S-919, 132 Ariz. 377, 646 P.2d 262 (1982). See In the Matter of the Appeal in Maricopa County Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App.1982). The United States Supreme Court concluded that in parental rights termination proceedings, the "fair preponderance of the evidence" standard violates the due process clause of the fourteenth amendment. The Court stated that a "clear and convincing" standard of proof "strikes a fair balance between the rights of the natural parents and the State's legitimate concerns," and that "such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process." 455 U.S. at ----, 102 S.Ct. at 1402-03, 71 L.Ed.2d at 617. The Court further held that the determination of the precise burden equal to or greater than the "clear and convincing" standard is a matter of state law properly left to state legislatures and state courts. Id. at ----, 102 S.Ct. at 1403, 716 L.Ed.2d at 617.

Since the termination proceedings in this case occurred under the unconstitutional burden of proof as specified in A.R.S. § 8-537(B), the findings and orders of the trial court are constitutionally infirm. See In the Matter of the Appeal in Pima County Juvenile Action No. S-919. While the general procedure would be to vacate the judgment and remand the case to allow the trial judge to make a new factual determination applying the proper standard of proof, we hold that the evidence in this case is insufficient to support an order of termination under either standard of proof. See Juvenile Action No. JS-4130.

Sufficiency of the Evidence

In support of the trial court's order terminating the parent-child relationship between appellant and his two children, appellee alleges that it is in the best interests of the children to sever the parental rights of the natural father and that the children wanted to be adopted by their stepfather. On this latter point, there is evidence in the record that one of the children insisted on using his stepfather's surname in school, rather than his legal name. There is also evidence that the children indicated to the trial judge in private that they wished to be adopted by their stepfather.

Although the best interests of the child are a valid factor in deciding an abandonment allegation, abandonment cannot be predicated solely on the best interests of the child. Matter of Juvenile Action No. S-624, 126 Ariz. 488, 616 P.2d 948 (App.1980); Anonymous v. Anonymous, 25 Ariz.App. 10, 540 P.2d 741 (1975). In determining whether to terminate a parent-child relationship, the focus is primarily on the conduct of the parent, and the court must determine whether that conduct was an intentional relinquishment of parental responsibilities. Matter of Appeal in Maricopa County, Juvenile Action No. JS-1363, 115 Ariz. 600, 566 P.2d 1346 (App.1977). Stated another way, a severance of a parent-child relationship requires proof that there is conduct on the part of the parent which implies a conscious disregard of obligations owed by the parent to the child, leading to the destruction of the parent-child relationship. Anonymous v. Anonymous; Matter of Juvenile Action No. S-624. We therefore must examine the evidence in this case to determine if this test has been met.

In reviewing the evidence, we are mindful of the fact that the trial court will be deemed to have made every finding necessary to support the judgment. In Re Estate of Harber, 104 Ariz. 79, 449 P.2d 7 (1969); Marquess v. Spaner, 15 Ariz.App. 342, 488 P.2d 698 (1971). Furthermore, this court will not interfere with the juvenile court's findings of fact unless there is no reasonable evidence to support them. Anonymous v. Anonymous.

In its order dated April 13, 1981, the trial court made the following findings of fact which are not challenged on appeal:

8. From October, 1977 (date of filing of order to show cause, see 6, supra) to December, 1978, Respondent made no attempt to contact the children. He did not write them, send any money, support, gifts, etc., or call them. The fact is that he was unaware that he did not know their whereabouts.

9. It was not until December, 1978, that he found by sending Christmas cards, that they were no longer in Missouri, and it was not until February, 1979, that he found their address in Arizona. In August, 1979, he made a phone call in which he talked to the Petitioner. In December, 1979, h...