Michael M. v. Katie E A..O.
| Decision Date | 15 August 2017 |
| Docket Number | No. 1 CA-JV 16-0443,1 CA-JV 16-0443 |
| Parties | MICHAEL M., Appellant, v. KATIE A., E.O., Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Janice K. Crawford, Judge
AFFIRMED
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Katie A.
Terrea L. Arnwine PLLC, Tempe
By Terrea L. Arnwine
Guardian Ad Litem for Appellee E.O.
MEMORANDUM DECISIONJudge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Margaret H. Downie joined.
¶1 Michael M. ("Father") appeals the superior court's order terminating his parental rights. For the following reasons, we affirm.
¶2 Father is the biological father and Katie A. ("Mother") is the biological mother of E.O., born August 16, 2007. Mother and Father were unmarried at E.O.'s birth, and after E.O.'s birth, their relationship ended. Mother and E.O. moved into the maternal grandmother's home, and Father moved in with his grandparents ("Great-Grandparents").
¶3 During weekends, E.O. would stay with Great-Grandparents, and Father would visit with E.O. at either Great-Grandparents' or his mother's ("Grandmother") house. Mother and Father maintained this visitation schedule for approximately five months until Father was arrested for theft-related charges in December 2007.1 Approximately six months later, the family court awarded Mother sole legal decision-making authority of E.O. and awarded Father supervised parenting time. Father was incarcerated again in 2010 for burglary, but Mother continued to allow Grandmother and Great-Grandparents visitation with E.O. on weekends despite Father's incarceration. Father remained in prison for the entirety of the severance proceedings.2
¶4 In 2012, Mother started dating Alan A. ("Stepfather") and told Father to stop contacting her. She married Stepfather in April 2013, and she filed for severance of Father's parental rights in August 2013 on the grounds of Father's incarceration being of such length that E.O. would be deprived of a normal home for a period of years. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(4).3 Mother later amended the petition to allege the grounds of abandonment and inability to discharge parental responsibilities due to substance abuse. See A.R.S. § 8-533(B)(1), (3).
¶5 Shortly after filing for severance, Mother noticed E.O. began demonstrating behavioral issues, and in early 2014, Mother learned Grandmother and Great-Grandparents had begun facilitating phone calls between E.O. and Father on Grandmother's cell phone. After Great-Grandparents refused Mother's request that they stop the calls, Mother ended weekend visitation with the Great-Grandparents and Grandmother.
¶6 The severance hearing occurred in August 2014, and the superior court issued its first ruling in November 2014. The court denied Mother's petition to sever, finding Father had abandoned E.O. but that severance was not in E.O.'s best interest because it would cause E.O. to lose her relationship with Great-Grandparents. E.O.'s guardian ad litem appealed the best interest finding, and this Court vacated and remanded the November 2014 ruling for reconsideration of E.O.'s best interest. E.O. v. Michael M., 1 CA-JV 14-0310, 2015 WL 4655933, at *3, ¶ 14 (Ariz. App. Aug. 6, 2015) (mem. decision) ("E.O. I").
¶7 On remand, the superior court incorporated its factual findings from the November 2014 ruling, affirmed the ground of abandonment, and again found severance was not in E.O.'s best interest. It specifically found, in part, that Mother had failed to "establish that the stability, love, and permanence [E.O. was] already experiencing in the home would be enhanced through adoption by Stepfather, especially in the absence of any harm to [E.O.] in maintaining the parental bond between [E.O.] and Father." E.O.'s guardian ad litem appealed again, and this Court vacated and remanded the November 2014 ruling for a determination of E.O.'s best interest in light of Demetrius L. v. Joshlynn F., 239 Ariz. 1, 365 P.3d353 (2016). E.O. v. Michael M., 1 CA-JV 15-0380, 2016 WL 4366739, at *1, ¶ 1 (Ariz. App. Aug. 16, 2016) (mem. decision) ("E.O. II").
¶8 The superior court issued its final ruling in October 2016. It again incorporated its findings on the ground of abandonment as set forth in the November 2014 ruling and affirmed the ground of abandonment. However, it found severance was in E.O.'s best interest because, in part: (1) Stepfather was meeting all E.O.'s needs; (2) an adoption plan existed; (3) Stepfather wanted to adopt E.O. but the proposed adoption would only be legally possible if Father's parental rights were terminated; (4) adoption by Stepfather would provide E.O. with permanency and stability, ensuring E.O. could stay with Stepfather and E.O.'s half-sibling if anything should ever happen to Mother; and (5) Father's abandonment had a negative effect on E.O.
¶9 Father timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-1201(A), and Arizona Rule of Procedure for the Juvenile Court 103(A).
¶10 Father challenges both the superior court's abandonment and best interest findings. For the following reasons, we affirm the superior court's order severing Father's parental rights to E.O.
¶11 We review the superior court's severance order for an abuse of discretion. Frank R. v. Mother Goose Adoptions, 239 Ariz. 184, 190, ¶ 21, 367 P.3d 88, 94 (App. 2016). We view the facts in the light most favorable to affirming the superior court's findings. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000).
¶12 A parent's rights in the care, custody, and management of their children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005). A court may sever those rights if it: (1) finds clear and convincing evidence of one of the statutory grounds for severance in A.R.S. § 8-533(B); and (2) finds by a preponderance of the evidence that severance is in the child's best interest. A.R.S. § 8-537(B); Kent K., 210 Ariz. at 281-82, 288, ¶¶ 7, 41, 110 P.3d at 1015-16, 1022.
¶13 Father argues the superior court erred in finding he abandoned E.O. because: (1) Mother prevented Father from having contact with E.O.; and (2) insufficient evidence supported the court's abandonment finding.
¶14 A court may sever a parent's parental rights if the parent abandons the child. A.R.S. § 8-533(B)(1). "Abandonment" is "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). It "includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child." Id. "[A]bandonment is measured not by a parent's subjective intent, but by the parent's conduct . . . ." Michael J., 196 Ariz. at 249, ¶ 18, 995 P.2d at 685.
¶15 Incarceration "neither provide[s] a legal defense to a claim of abandonment nor alone justifies severance on the grounds of abandonment." Id. at 250, ¶ 22, 995 P.2d at 686 (internal quotations and citation omitted). It is but one factor to consider in evaluating a parent's ability to perform his parental obligations. Id. (citation omitted). Similarly, nonpayment of child support alone is not enough to establish abandonment. In re Yuma Cty. Juv. Court Action No. J-87-119, 161 Ariz. 537, 539, 779 P.2d 1276, 1278 (App. 1989). When circumstances prevent a parent from "exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary." Michael J., 196 Ariz. at 250, ¶ 22, 995 P.2d at 686 (citation and internal quotations omitted).
¶16 Father cites Calvin B. v. Brittany B., 232 Ariz. 292, 304 P.3d 1115 (App. 2013) and Jose M. v. Eleanor J., 234 Ariz. 13, 316 P.3d 602 (App. 2014) in support of his assertion that Mother prevented him from having contact with E.O. by terminating visits with Great-Grandparents and Grandmother in February 2014. Although Father is correct that a parent "may not restrict the other parent from interacting with their child and then petition to terminate the latter's rights for abandonment," Calvin B., 232 Ariz. at 297, ¶ 21, 304 P.3d at 1120, that is not what happened here. Here, Mother restricted Father's family from interacting with E.O. after she filed the severance petition. Father had Mother's address throughout the proceedings, but except for one letter, chose to contact E.O. exclusively through Grandmother and Great-Grandparents. Additionally, evidence in the record indicates Father did not participate in the visitation available to him prior to Mother's petition, unlike the parents in Calvin B. and Jose M.See Calvin B., 232 Ariz. at 297-98, ¶¶ 22-24, 29, 304 P.3d at 1120-21 (); Jose M., 234 Ariz. at 17, ¶¶ 18-19, 316 P.3d at 606 (). Because Calvin B. and Jose M. are factually distinguishable, neither controls the outcome of this case.4
¶17 Father's argument that insufficient evidence supported the superior court's abandonment finding also fails. Father highlights social worker Polly Thomas' testimony that Father was interested in and knowledgeable about E.O. in support of his assertion that he did not...
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