In re K.C.

• Decision Date: 10 May 2023
• Docket Number: 2 CA-JV 2023-0001
• Parties: In re Termination of Parental Rights as to K.C.,
• Court: Arizona Court of Appeals

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In re Termination of Parental Rights as to K.C.,

No. 2 CA-JV 2023-0001

Court of Appeals of Arizona, Second Division

May 10, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Graham County No. SV202200009 The Honorable Travis W. Ragland, Judge Pro Tempore

E.M Hale Law PLLC, Lakeside

By Elizabeth M. Hale

Counsel for Appellant

Law Office of Jeremy J. Waite P.C., Safford

By Jeremy J. Waite

Counsel for Appellee Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.

MEMORANDUM DECISION

ECKERSTROM, JUDGE.

¶1 In this private severance proceeding, Scott R. appeals from the juvenile court's December 2022 ruling terminating his parental rights to his son, K.C., born in April 2018. He challenges the sufficiency of the evidence to support the court's findings that he abandoned his son, see A.R.S. § 8-533(B)(1), and that termination of his parental rights was in K.C.'s best interests. For the reasons set forth below, we reverse.

¶2 Before the juvenile court may terminate a parent's rights, it must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the facts in the light most favorable to sustaining the juvenile court's findings. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016).

¶3 Lisa C., K.C.'s mother, and Scott ended their relationship shortly after K.C. was born in April 2018. Scott did not see K.C. again until January 2019, when Lisa brought him to visit Scott in the rehabilitation facility where he was residing at the time. During the fourteen-month period between February 2019 and April 2020, Scott saw K.C. a few times per month, always in Lisa's presence. In March 2021, the juvenile court granted Scott's petition to establish paternity. Acknowledging that there was evidence that Scott had an alcohol abuse problem and that he had successfully completed "rehab," the court awarded the parents joint legal decision-making authority; designated Lisa the primary caregiver; created a parenting-time schedule for Scott to see K.C., permitting Lisa to request that he undergo four urinalysis tests during any three-month period; and ordered Scott to pay child support.

¶4 In September 2021, without a court order authorizing her to do so, Lisa unilaterally began prohibiting Scott from having contact with K.C., purportedly for her son's "protection and his safety." On September 17, 2021, when Lisa refused to bring K.C. to meet Scott for his scheduled visit, Scott called the Safford police, who documented the incident but did not contact Lisa. Scott sent Lisa text messages for several months after the incident, asking to see K.C. so he could give him a present or a hug, and asking her to tell K.C. that he loved him. Lisa did not respond to most of Scott's text messages, although she did inform him that she would not permit K.C. to be "around" drugs. In May 2022, Lisa filed a petition to terminate Scott's parental rights, alleging he had abandoned K.C., whom he had not seen since September 2021 (when Lisa failed to bring K.C. to the scheduled parenting-time exchange). See A.R.S. § 8-533(B)(1). On June 14, 2022, after several unsuccessful attempts in the prior months to secure the appropriate paperwork from the court, but before being served with Lisa's severance petition, Scott filed a petition to enforce the March 2021 parenting-time order.^[1] In that petition, he asserted Lisa had "refused to meet as scheduled for [his] visitation weekends and refuse[d] to let [him] speak to [his] son or see him at all."

¶5 In December 2022, following a two-day contested severance hearing held in September and November 2022, the juvenile court granted Lisa's petition.^[2] The court found that Scott had "not provided reasonable support, ha[d] sent no cards, gifts or letters, and . . . had no contact with the child for over six (6) months," and that Scott had "failed to maintain a normal parent child relationship, all without good cause." The court also noted that Scott had not paid any child support "since approximately July 2021 and [was] currently approximately $10,000.00 in arrears." The court concluded termination was in K.C.'s best interests, noting that he is adoptable and that Lisa's husband^[3] wanted to adopt him. This appeal followed.

¶6 A parent abandons a child by failing "to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). Abandonment "includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child." Id. "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." Id. "[A]bandonment is measured not by a parent's subjective intent, but by the parent's conduct," Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 18 (2000), and "depend[s] on the circumstances of the particular case," Kenneth B. v. Tina B., 226 Ariz. 33, ¶ 19 (App. 2010).

¶7 On appeal, Scott contends the juvenile court abused its discretion by finding he abandoned K.C.^[4] He maintains Lisa "persistently and repeatedly prevented [him] from seeing his child, in violation of a court order and despite [his] repeated attempts to contact his son," so she could claim he had abandoned his child.

¶8 In its ruling, the juvenile court provided a detailed summary of the facts it had considered, including the following:

That Father did file a Petition to Enforce on June 14, 2022.

That Mother began denying Father Parenting Time in September 2021, due to Father being charged with a DUI, and pleading guilty to Possession of Drug Paraphernalia.

That Father did make a police report re: Mother's refusal to allow Parenting Time and did attempt to communicate with Mother to get his Parenting Time.

That Father's testimony was that he obtained the incorrect paperwork to enforce his parenting time from the Clerk's Office on multiple occasions. However, Father never filed any of those documents.

That Father had further police contact in June of 2022, involving a suspected Drug DUI. However, no charges have been brought regarding this matter.

That it took Father eight (8) to nine (9) months from the time he was originally denied Parenting Time, to file his Petition to Enforce.

That Mother did in fact deny Father parenting time, after Father was suspected of a DUI.

That Mother did not file a Petition to Modify Parenting Time based on her concerns.

¶9 The record shows that the juvenile court considered both Scott's and Lisa's conduct, including Scott's multiple efforts to see K.C. Parents prevented from exercising traditional means of bonding with a child must "act persistently to establish the relationship" and "must vigorously assert" their legal rights. Michael J., 196 Ariz. 246, ¶ 22 (quoting In re Pima Cnty. Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994)); see also Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 29 (App. 2013). "What constitutes reasonable support, regular contact, and normal supervision varies from case to case." Pima Cnty. No. S-114487, 179 Ariz. at 96.

¶10 Based on the above fact findings, the juvenile court determined that Scott had not provided reasonable support for K.C. or had contact with him for more than six months. The court ultimately concluded that, "while Mother did in fact deny the Father Parenting Time, Father did not act persistently to establish his relationship with the child, nor did he vigorously assert his legal rights to the extent necessary."

¶11 We do not reweigh the evidence presented to the juvenile court. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). Because the concept of abandonment and terms like "reasonable support" or "normal parental relationship" are imprecise and elastic, these are questions of fact usually left to the court to resolve. In re Maricopa Cnty. Juv. Action No. JS-4283, 133 Ariz. 598, 601 (App. 1982); see also Michael J., 196 Ariz. 246, ¶ 20 (abandonment is primarily fact question). However, even viewing the facts in the light most favorable to sustaining the court's findings here, Demetrius, 239 Ariz. 1, ¶ 2, we conclude there was insufficient evidence to support the court's conclusion that Scott had abandoned K.C. We therefore reverse the court's ruling as to abandonment. See Jordan C., 223 Ariz. 86, ¶ 18.

¶12 The record shows that, despite the seeming futility of his repeated efforts, Scott repeatedly tried to contact Lisa by text message asking to see K.C., requesting that Lisa tell K.C. that Scott loved him, and asking permission to bring him gifts. Each time Scott did so, he was acting to establish his relationship with K.C. through Lisa, the only medium of communication that he had with K.C. See Michael J. 196 Ariz. 246, ¶ 22. In addition, Scott called the police when Lisa refused to meet him for his scheduled visit with K.C. in an effort to enforce his parental rights. He tried on multiple occasions, albeit initially...