Michael J. v. Arizona Dept. of Economic Sec.

• Decision Date: 30 March 2000
• Docket Number: No. CV-99-0129-PR.,CV-99-0129-PR.
• Citation: 995 P.2d 682,196 Ariz. 246
• Parties: MICHAEL J., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Zachariah J., Appellees.
• Court: Arizona Supreme Court

995 P.2d 682

196 Ariz. 246

MICHAEL J., Appellant, v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Zachariah J., Appellees.

No. CV-99-0129-PR.

Supreme Court of Arizona, En Banc.

March 30, 2000.

Gary Sheets, Phoenix, Attorney for Michael J.

Janet Napolitano, The Attorney General by Kathleen P. Sweeney, Assistant Attorney General and Susan J. Gebhard, Assistant Attorney General, Phoenix, Attorneys for the Arizona Department of Economic Security

Michael D. Hintze & Assoc., Ltd. by Michael D. Hintze and Kevin W. Holliday and Richard D. Dault, Phoenix, Attorneys for Zachariah J.

Mary L. Verdier, Phoenix, Attorney for Amicus Curiae Adoptive Parent.

OPINION

McGREGOR, Justice.

I.

¶ 1This case requires that we again consider the bases for severing parental rights and the test to apply to determine whether a sufficient basis exists.In January 1997, the Arizona Department of Economic Security(the ADES) filed a severance action on behalf of Zachariah J.The superior court terminated the father's rights based on three grounds: (1) length of the father's felony sentence, (2) unfit parent, seeArizona Revised Statute Annotated (A.R.S.)§ 8-533.B.4(West 1999), and (3) abandonment, seeA.R.S. §§ 8-531.1 & 8-533.B.1 (West 1999).The court of appeals reversed.

¶ 2We granted the petition for review filed by the ADES to resolve recurring issues in this critical area of family law.We have jurisdiction pursuant to the Arizona Constitution, article VI, section 5.3,A.R.S. section 12-120.24(West 1992), andRules of Procedure of Juvenile Court28(a)(WestSupp.1999).We now vacate the opinion of the court of appeals and affirm in part and reverse in part the judgment of the superior court.

II.

¶ 3 The child, Zachariah, was born on December 25, 1995.The ADES took custody of Zachariah the day after his birth because he had been exposed to amphetamines by his mother.His father, Michael J., was absent because one month earlier he had been sentenced to a 3.5 year prison term for aggravated assault and misconduct involving a weapon.

¶ 4 In January 1996, the ADES served Michael, in prison, with a dependency petition.Michael did not answer and did not participate in the January 23, 1996 dependency hearing, at which Zachariah was declared dependent.On January 30, the ADES sent Michael a letter notifying him that Zachariah was in its custody.On February 23, Michael wrote the following letter to the ADES:

I am writing this to you in regards to my son Zachariah.

I have been told I needed to contact you & let you know what my plans are in regards to him.First let me say I would very much like to see him.Also let me say that I am his father & he is my son and I plan on being his father & raising him when I get out.In fact I would like, and plan on, myself, my wife Leah, and all of our children being a normal functioning family upon my release.Until my release I would like to at least be able to have visits with him.

If there is anything else I can do please contact me.

¶ 5 In March 1996, the ADES responded to Michael's request to let him know what else he could do as follows:

Your letter was received requesting a visit with Zachariah....You have not been in contact with the court and in your best interest you need to write to the court and request an Attorney who can help with possible visitation.The address of the court is Superior Court of Arizona, Juvenile Division, 3215 W. Durango, Phoenix, AZ 85009.Request an Attorney in writing.

This case has been set for severance which means that a court hearing will be set to sever all parental rights due to the fact that you are in prison and unable to parent and Leah will have a severance hearing due to other reasons.Zachariah has already been found a Ward of the State in regards to you because you did not contact the court after you were served.In order to protect any of your rights, you need to write the Juvenile Court.¹

¶ 6 Despite the advice given by the ADES, Michael neither wrote to the superior court nor contacted the ADES again for more than a year.During that time, he never inquired about Zachariah's welfare, requested services, or provided any financial support for Zachariah.He did not ask for an attorney or visitation.

¶ 7 In January 1997, the ADES filed a petition to terminate Michael's parental rights.That filing prompted a response from Michael's lawyer, who wrote to the ADES in April 1997.By the time of the severance hearing in December 1997, approximately one year remained on Michael's sentence.At the hearing, Michael testified that he had not used drugs in the past three years, that he had taken parenting and anger management classes in prison, that he wanted to parent Zachariah when he was released, and that his mother would help care for the child.

¶ 8An ADES case manager testified that Michael had never seen Zachariah, written him any letters, or sent him any gifts.During the one and one-half years prior to the hearing, then two-year-old Zachariah had been living with his mother's cousin, who loved him, had bonded with him, and had taken steps to become certified to adopt him.The case manager testified that severance was in Zachariah's best interests because he was well-adjusted and happy in his placement, permanency is important for children, and the cousin with whom he lived loved him and could provide him a decent future.

¶ 9Judge Hertzberg found three grounds for severance by clear and convincing evidence: (1) the length of Michael's sentence would deprive Zachariah of a normal home life for a period of years, (2) Michael was an unfit parent due to the nature of his crimes, and (3) Michael had abandoned Zachariah because he had failed to maintain a normal parental relationship.

¶ 10The court of appeals reversed on all three grounds, holding that the superior court erred because its "findings were not supported by clear and convincing evidence."Michael J. v. Arizona Dep't of Econ. Sec.,194 Ariz. 231, 232, 979 P.2d 1024, 1025(App.1999).

III.

¶ 11 Severance of parental rights necessarily involves the consideration of fundamental, often competing, interests of parent and child."This court and the United States Supreme Court have long recognized that the right to the control and custody of one's children is a fundamental one."In re Maricopa County Juvenile Action No. JS-500274,167 Ariz. 1, 4, 804 P.2d 730, 733(1990)(Action No. JS-500274)."[T]his fundamental right `does not evaporate simply because' the natural parents `have not been model parents or have lost temporary custody of their child to the state.'"Id.(quotingSantosky v. Kramer,455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599(1982)).

¶ 12 The right of a parent to custody of his child, however, is not absolute.The State can terminate parental rights under specified circumstances and procedures.In Arizona, "[t]ermination of parental rights is governed solely by A.R.S. § 8-533."In re Pima County Juvenile Severance Action No. S-114487,179 Ariz. 86, 95, 876 P.2d 1121, 1130(1994)(Action No. S-114487).To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533, and also that termination is in the best interest of the child.SeeA.R.S. § 8-533.B.

¶ 13The superior court found three statutory grounds for severing Michael's parental interest and also found that severance would be in Zachariah's best interest.Michael has never challenged the superior court's best interest finding.We therefore accept that finding and do not address it further.

A.

¶ 14The court of appeals held that the superior court clearly erred in finding that Michael had abandoned Zachariah under A.R.S. section 8-533.B.1.We disagree.

¶ 15 The standard for determining whether a parent has abandoned his child has been the subject of some confusion."Until 1982, the termination statute contained its own definition of abandonment.When that was deleted, our courts seemingly set off on their own, generally ignoring the definition in § 8-546," which has now been renumbered to 8-531.Action No. S-114487,179 Ariz. at 95 n. 11, 876 P.2d at 1130 n. 11.Two common law tests developed to define what constitutes abandonment: the settled purpose doctrine and the conscious disregard test.²

¶ 16We took the first step toward eliminating confusion in this area in Action No. S-114487, in which we terminated an unwed father's parental rights because he had abandoned his child.We rejected both common law tests in favor of the statutory definition of abandonment because "adhering to settled purpose or conscious disregard concepts in these cases in which no such relationship exists defeats the essential goal: prompt finality that protects the child's interests."Id. at 97, 876 P.2d at 1132.We noted that prompt finality is paramount because "[o]therwise a young child languishes in limbo— surrendered by the mother, unclaimed by the father, and bonding with others—from which the law cannot extricate the child without lengthy proceedings compounding the harm."Id.

¶ 17The statute that applied in Action No. S-114487,A.R.S. § 8-546.A.1, defined abandonment "as the `failure ... to provide reasonable support and to maintain regular contact..., including ... normal supervision, when such failure is accompanied by an intention on the part of the parent to permit such condition to continue for an indefinite period in the future.'"Id. at 96, 876 P.2d at 1131(emphasis added).In 1994, the legislature deleted the intent language from the statute."Abandonment" now means

the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision.Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child.Failure to maintain a normal parental

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