Maricopa County Juvenile Action No. JS-4374, Matter of
| Decision Date | 28 July 1983 |
| Docket Number | CA-JUV,JS-4374,No. 1,1 |
| Citation | 667 P.2d 1345,137 Ariz. 19 |
| Parties | In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.196. |
| Court | Arizona Court of Appeals |
This appeal from an order of the juvenile court terminating appellant's parental rights presents four issues for review:
1. Whether there was sufficient evidence to support a finding of abandonment as defined by A.R.S. § 8-201(1) and implemented by A.R.S. § 8-533(B)(1).
2. Whether the mother (appellant) was denied the opportunity to personally appear at the proceedings and was therefore denied her due process right to confrontation.
3. Whether the juvenile court committed reversible error in denying a motion for continuance for the purpose of presenting impeachment evidence.
4. Whether the juvenile court committed error in admitting exhibits into evidence.
After a factual overview, we will discuss each issue in turn. Initially, we observe several principles generally applicable to this review. On appeal, this court will accept the juvenile court's findings in support of termination of the parent-child relationship unless such findings are clearly erroneous. In the Matter of Juvenile No. J-2255, 126 Ariz. 144, 613 P.2d 304 (App.1980); In the Matter of Maricopa County Juvenile Action No. JS-378, 21 Ariz.App. 202, 517 P.2d 1095 (1974). The standard of proof in a termination proceeding is by clear and convincing evidence. Stantosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In the Matter of Maricopa County Juvenile Action No. A-26961, 135 Ariz. 228, 660 P.2d 479 (App.1982).
The child who is the subject of this action was born on September 13, 1972. When the child was approximately four months old, appellant made arrangements to place him for adoption through a welfare agency. This was adamantly opposed by the grandparents (appellees). Appellant ultimately acquiesced and left the child with appellees for approximately eight or nine months. Subsequently, appellant married and left her parents' home with the child. In 1974, she left her first husband because he abused her and she travelled to Texas with a male companion and her child. While in Texas, she divorced her first husband. Appellant, a companion and the child then travelled to South Carolina where appellant and the companion were married. A second child was born to appellant, the son of her second husband, in South Carolina. Appellant's second husband was also prone to wife abuse and appellant left him after two years and returned to her parents' home where she remained with both children for approximately thirteen months. In the interim, she divorced her second husband.
In 1977, appellant returned to Texas with the two children and subsequently remarried for the third time. Appellant and her third husband thereafter moved to Arizona where they began a mechanic's business and rented a home.
At the hearings in this matter, appellant's brother and his wife testified regarding what they had observed in appellant's home during a two-week visit. They testified that the child involved in this case, together with his half-brother, slept in a room with no beds on a bare floor, although appellant and her husband had the use of a bed. Additionally, the son of appellant's third husband, an eighteen year-old boy living with the family at that time, also had his own room and a bed. Appellant's brother testified that the child involved in these proceedings and his half-brother were not allowed to eat with the adults nor were they fed the same foods that the adults consumed.
Appellant's third husband's business thereafter failed and the family returned to Texas.
After the return to Texas, appellant separated from her third husband, again because he was a wife beater. In December 1979, appellant requested that appellees take the child involved in this case into their home on an indefinite basis. After placing the child with appellees, appellant had no significant contact with the child. The extent of appellant's contact with the child involved approximately four phone calls, a birthday card, and a poster over a two-year period. She provided no money for food or clothing. Rather, she continued to request support from her parents for her own expenses.
After appellant's separation from her third husband in Texas, she began another relationship with an individual who is the father of a third child. In 1980, appellant's second child, the result of the union between appellant and her second husband, died. A certified report from the office of the medical examiner of Travis County, Texas was received in evidence. The report detailed the postmortem examination of the child's half-brother who died at the age of four years. The examiner concluded that the child came to his death as a result of blunt trauma to the abdomen and head and that the death was a homicide. The report indicated that several days had elapsed between the injuries sustained by the child and the time when appellant brought him to the hospital for medical care.
Appellees, together with the child in this case, attended the funeral of the child's half-brother in Texas and this is the only time that the child has seen the appellant since she left him with appellees in 1979.
Appellant was indicted for the murder of her second child and released on bond. On August 17, 1981, appellees brought this petition to terminate the parent-child relationship in order to clear the way for the adoption of their grandson.
Appellant contested the termination and, after extensive continuances, hearings were held before the juvenile court on August 3, August 26, October 28, and November 9, 1982. Appellant was represented by counsel throughout these proceedings. Although requested to do so, appellant made no attempt to seek permission of the Texas court for relief from her bond restricting her to the State of Texas so that she might attend these severance proceedings nor did she provide any deposition testimony.
Following the hearings in this matter, the juvenile court entered an order on November 16, 1982, which found that appellant had abandoned the child and had made no effort to maintain a parental relationship. The order found that appellant had left the child without provision for support and had made only token efforts to communicate with the child for a period in excess of six months. On that basis, and applying a standard of clear and convincing evidence, the juvenile court ordered that the parent-child relationship between appellant and the child be terminated. This appeal followed.
We first consider the issue of whether sufficient evidence was presented to the juvenile court from which a finding of abandonment could be made. 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 or that the parent has made no effort to maintain a parental relationship with the child. It shall be presumed that 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.
Abandonment is also defined in A.R.S. § 8-201 which states:
In this chapter, unless the context otherwise requires:
1. "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. 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.
A recent opinion of this court has also considered the definition of abandonment in the context of a termination of parent-child relationship. In Matter of Maricopa Juvenile Action Nos. JS-4118/JD-529, 134 Ariz. 407, 656 P.2d 1268 (1982) this court stated:
The appropriate test of abandonment is whether there has been conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship. [Citations omitted.]
At 1270.
In the case of In the Matter of Pima County Juvenile Action No. S-624, 126 Ariz. 488, 616 P.2d 948 (App.1980), this court recognized that the definition of abandonment...
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