Appeal in Maricopa County, Juvenile Action No. JS-4130., Matter of, JS-4130

• Decision Date: 13 May 1982
• Docket Number: CA-JUV,JS-4130
• Citation: 132 Ariz. 486,647 P.2d 184
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. 1166.
• Court: Arizona Court of Appeals

Page 184

647 P.2d 184

132 Ariz. 486

In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. JS-4130.

1 CA-JUV 166.

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

May 13, 1982.

Review Denied June 15, 1982.

Francis G. Fanning, Tempe, for appellant

Robert K. Corbin, Atty. Gen. by Edward B. Truman, Asst. Atty. Gen., Phoenix, for Arizona Dept. of Economic Sec.

Jane Bayham-Lesselyong, Phoenix, for minor children.

OPINION

HAIRE, Judge.

We are faced with two basic issues in this appeal from an order of the juvenile court terminating the parent-child relationship between appellant and her two daughters. The first issue is the effect of the recent United States Supreme Court decision of Santosky v. Kramer, --- U.S. ----, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), on Arizona's termination of parental rights statute, A.R.S. § 8-537. The second and more difficult issue is whether there was sufficient evidence in this case to support the trial court's order terminating the parent-child relationship between appellant and her children.

BURDEN OF PROOF

Arizona's statutes governing the termination of parent-child relationships provide:

"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). A.R.S. § 8-537(B).

In examining a similar statute from New York, the United States Supreme Court recently noted that the "function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' " The court then used a three-part test based on Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine if the preponderance of the evidence standard was sufficient in matters involving the termination of parental rights. The court found:

"In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a 'fair preponderance of the evidence' standard in such proceedings is inconsistent with due process."

The court then held that a "clear and convincing evidence" standard "adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process." Santosky v. Kramer, supra. ¹

Therefore, Arizona's statute requiring only a preponderance of the evidence to terminate parental rights is unconstitutional and our juvenile court's findings with respect to grounds for termination must now be based on clear and convincing evidence. ²

Before turning to the merits of this case, we point out the effect of burden of proof standards as they relate to appellate review. As we said in Hopper v. Industrial Commission, 27 Ariz.App. 732, 734, 558 P.2d 927, 929 (1976) "The purpose of the 'clear and convincing' standard is to guide the trier of fact in consideration of the evidence. It is not a test to be applied by an appellate court in passing on the sufficiency of the evidence. Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583 (1944). Therefore the finding of the trier of fact should be sustained if the evidence furnishes reasonable or substantial support therefor. Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786 (1955); Brown v. Karas (73 Ariz. 62, 237 P.2d 799), supra; King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928 (1968). Even where the more stringent 'beyond a reasonable doubt' standard is imposed as a guide for the trier of fact, questions concerning the credibility of the witnesses and the weight and value to be given to the testimony are considered as questions exclusively for the jury, State v. Pieck, 111 Ariz. 318, 529 P.2d 217 (1974), and the appellate court in reviewing the sufficiency of the evidence is only concerned with whether there is substantial evidence in support of the verdict. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (filed August 6, 1976.)" (Footnote omitted). Accord, Stevenson v. Stevenson, 132 Ariz. 44, 643 P.2d 1014 (1982); Groth v. Martel, 126 Ariz. 102, 612 P.2d 1065 (App.1979).

If an appellate court were to apply different standards of review depending on the burden of proof required for the particular proceeding, it would be substituting its resolution of factual issues for that of the trier of fact. Therefore, no matter what the burden of proof required in the proceedings below, we can only review the evidence to determine if there is substantial evidence to support the conclusion of the trier of fact.

In most cases now on appeal in which the termination proceedings occurred under the incorrect burden of proof, we would simply vacate the judgment and remand the case to allow the trial judge to make a new factual determination, applying the proper standard of proof. As the Supreme Court said in Santosky:

"We, of course, express no view on the merits of petitioners' claims. At a hearing conducted under a constitutionally proper standard, they may or may not prevail. Without deciding the outcome under any of the standards we have approved, we vacate the judgment of the Appellate Division and remand the case for further proceedings not inconsistent with this opinion." (Footnote omitted).

However, in this particular case, we hold that the evidence is insufficient to support an order of termination under any standard of proof and the case must therefore be reversed.

THE ABANDONMENT STATUTE

The statute relevant in this case is A.R.S. § 8-533(B)(1):

"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 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."

A finding of abandonment under this statute requires evidence of "intentional conduct on the part of a parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." Anonymous v. Anonymous, 25 Ariz.App. 10, 12, 540 P.2d 741, 743 (1975); accord, In the Matter of the Appeal in Pima County, Juvenile Action No. S-139, 27 Ariz.App. 424, 555 P.2d 892 (1976); In the Matter of the Appeal in Pima County, Juvenile Action No. S-624, 126 Ariz. 488, 616 P.2d 948 (App.1980). A presumption that the parent intended to abandon arises under this statute if the child was left without any provision for support and the parent did not communicate with the child for a period of six months. In this case, the trial court found that the appellant had written letters to the children during the period of care by the Department of Economic Security, thus impliedly finding that this presumption did not arise. Therefore, we do not address those portions of the parties' arguments relating to the "left without any provision for support" element of the presumption. ³

The last sentence of the abandonment subsection allows a finding of abandonment where parents have made only token efforts to support or communicate with the child. This statutory provision cannot reasonably be construed to mean that a finding of "token efforts" alone will support a termination order; rather it means that "token efforts" by the parent to support or communicate with the child do not necessarily show an intent not to abandon. Even though mere "token efforts" are found, the court must also find, based upon the totality of the evidence, that the parent has abandoned the child.

SUFFICIENCY OF THE EVIDENCE

The Arizona Department of Economic Security filed a petition in March 1981, seeking termination of the parent-child relationship between appellant and her two minor daughters. ⁴ The petition alleged as grounds for termination that appellant had abandoned the children pursuant to A.R.S. § 8-533(B)(1). ⁵ A hearing was held on August 11, 1981 at which the only witness to testify was a Department of Economic Security social worker. Since her testimony was the sole basis for termination, we will review in detail her testimony concerning the abandonment allegation.

Appellant's two daughters were placed in foster care in September 1979, and became wards of the court on December 10, 1979. The worker who testified was assigned the case in July 1980, and she relied upon reports of other caseworkers for information prior to that time. As to visits with the children by the mother during 1979, the caseworker testified:

"A. Okay. She visited on four occasions in 1979.

"Q. For the record, do you have the dates of those visits?

"A. 9-21-79; 11-8-79; 11-19-79 and 11-21-79.

"Q. And these visits were set up through D.E.S.?

"A. That is correct.

"Excuse me. There was one more visit 12-6-79. There were no further visits."

The caseworker met with the appellant in August 1980 and they discussed the children but appellant gave no explanation for her failure to arrange for visits. In September 1980 appellant attended the Foster Care Review Board meeting concerning her children. ⁶ On that same day, the caseworker gave appellant a "contract" listing the requirements necessary for appellant to gain return...