Juvenile Action No. S-624, Matter of

• Decision Date: 22 July 1980
• Docket Number: No. 2,S-624,CA-CIV,2
• Citation: 126 Ariz. 488,616 P.2d 948
• Parties: In the Matter of the Appeal in Pima County, JUVENILE ACTION NO.3576.
• Court: Arizona Court of Appeals

Page 948

616 P.2d 948

126 Ariz. 488

In the Matter of the Appeal in Pima County, JUVENILE ACTION NO. S-624.

No. 2 CA-CIV 3576.

Court of Appeals of Arizona, Division 2.

July 22, 1980.

Review Denied Sept. 9, 1980.

Robert K. Corbin, Atty. Gen. by John R. Evans, Asst. Atty. Gen., Tucson, for appellant

Barry Hochman, Tucson, for appellee.

James Crane, Tucson, for minors.

OPINION

HATHAWAY, Chief Judge.

Appellant, the Department of Economic Security (DES), claims that it sustained its burden of proving the grounds alleged in its petition to sever the parental rights of the natural father of two minor children. We find no basis for overturning the juvenile court's determination and affirm.

Appellant filed a petition to sever the parental rights of both the natural mother and father. ¹ As to the father, the petition alleged that he had abandoned the children and had made no effort to maintain a parental relationship with them. It also alleged that he had been deprived of his civil liberties due to conviction of a felony, the sentence for which was of such length that the children would be deprived of a normal home for a period of years. The only two witnesses at the severance hearing were the father and a DES caseworker. At the conclusion of the hearing, the juvenile court found that appellant had failed to carry its burden of proof that the father intended to abandon the children and ordered the petition dismissed. No finding was made as to the other ground alleged, i. e., that the sentence being served by the father was of such length that the children would be deprived of a normal home for a period of years. We therefore presume that, as to this second ground, the court found appellant had also failed to sustain its burden of proof.

It is undisputed that the father had neither seen nor communicated with the children since November 1977. Also, in February 1978, he was committed to the Department of Corrections for not less than two nor more than four years and in May 1978, was committed to the Department of Corrections for not less than five nor more than five years and one day commencing January 11, 1978. In December 1977, the children were adjudicated dependent. DES was given their care, custody and control, and the children had been in agency foster homes from that time.

The father testified that while he was in the county jail in 1978, he learned that the children were at Casa de los Ninos, a temporary child care facility, and that the mother assured him she was going to try to get them back. He was incarcerated at Fort Grant and would be eligible for work release in December 1980. He stated that his family would be willing to help him when he was released and help with the care of the children, and that it was common practice in his family that some of the children were raised by aunts and cousins. During the preceding three years, he did not know where the children were and he could not get the telephone number from DES. He had never sent any letters because he had difficulty communicating in writing. In 1978, when he first arrived at Fort Grant, he called a relative to ask for help in locating the children and she told him that she could get no information from DES.

The father was under the impression that some people were taking care of his children, but testified that no one ever tried to contact him until he received a "paper" saying they were going to be put up for adoption.

The caseworker testified that the mother indicated to him in December 1978 that she did not know where the father was. It was not until January 1979, when a relative of the father contacted him, that he learned the father was in the state prison. No attempt was made to contact the father and the petition for severance was filed because the father had had no contact with the children since 1977 and was serving a five-year term. Telephone inquiries from the father's relative as to where the children were met with no success. In response to a question from the court, the caseworker admitted that even if the relative had come into the DES office, he would not have told her where the children were. The tenor of his testimony was that it was in the best interests of the children that they go into a home "where they will be treated properly." It was apparent that no attempt had been made to contact the father or to assist the other relatives in an attempt to preserve the familial ties.

We have pointed out that severance of the parent-child relationship is a serious matter and should not be considered a panacea. Rather, it should be resorted to only where concerted efforts to preserve the relationship fail. Arizona State Department of Economic Security v. Mahoney, 24 Ariz.App. 534, 540 P.2d 153 (1975). We have also recognized that parents enjoy constitutional rights with regard to raising their children and that a child has a right to be with his natural parents, Hernandez v. State ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 530 P.2d 389 (1975), and that the state and its...