In re C.R.

105 Arizona Cases Digest 34

536 P.3d 298

IN RE Termination of Parental Rights as to C.R. and A.R.

No. 1 CA-JV 23-0041

Court of Appeals of Arizona, Division 1.

Filed September 19, 2023

Thomas A. Vierling Attorney at Law, Phoenix, By Thomas A. Vierling, Counsel for Appellant Father

Stuart & Blackwell PLLC, Chandler, By Cory A. Stuart, Counsel for Appellee Mother

Judge Daniel J. Kiley delivered the opinion of the Court, in which Vice Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

KILEY, Judge:

¶1 James R. ("Father") appeals the juvenile court's order terminating his parental rights to his children, C.R. and A.R. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Laura R. ("Mother"), who were married in 2013 and divorced in 2020, are the biological parents of C.R., born in 2015, and A.R., born in 2017.

¶3 Viewed in the requisite "light most favorable to sustaining the juvenile court's order," In re O.M. , 254 Ariz. 543, 544, ¶ 3, 525 P.3d 286, 287 (App. 2023), the evidence shows that Father used illegal drugs "off and on" throughout the marriage. When under the influence of illegal drugs, Father exhibited "paranoia," expressing to Mother fear that "people were hiding" in the attic of their home or "under [the] mattress" of their bed. He could also become physically abusive, and choked Mother on "several" occasions while under the influence.

¶4 In March 2019, Mother filed a petition for an order of protection against Father, alleging, inter alia , that Father "is currently using cocaine or crystal," "is having delusions and hallucinations," carries "a kitchen knife throughout the house," and threatens that "he will blow up [her] car" if she "leave[s] him." The superior court issued the order of protection (the "First OOP") directing Father to have "no contact" with Mother, C.R., or A.R. "except through attorneys, legal process, [or] court hearings" and excluding Father from the family residence. Father did not contest the First OOP. Although Father later had limited contact with the children by telephone, he never saw them again.

¶5 In April 2019, Mother filed a petition for dissolution of marriage. In the dissolution decree entered in February 2020, the superior court found that "Father is ‘Seriously Mentally Ill’ by his own admission and is presumed to be abusing drugs since he failed to submit [to] court-ordered drug testing." The court further found that Father "has engaged in acts of domestic violence against" Mother. The court awarded Mother sole legal decision-making authority for the children and granted Father no parenting time, finding that "an award of parenting time" to Father "is not in the best interest of the children at this time." The court held, however, that Father could move to modify the decree to obtain parenting time once he took the following actions to address his mental health and substance abuse issues:

Father must submit two clean hair follicle tests evidencing no less than 6 months sobriety, attend a domestic violation evaluation at Sage Counseling, Inc., comply with the recommendations in that evaluation and submit a record from a mental health professional establishing mental stability.

Father never submitted evidence that he complied with any of these conditions, nor did he ever seek to modify the decree to obtain parenting time with the children.

¶6 In March 2020, police officers arrived at Mother's home to conduct a welfare check after Father made a baseless report that Mother "killed the kids." That same month, Father was arrested and jailed for burglary. While in custody over the ensuing months, he had telephone contact with the children "a handful of times." Father was subsequently convicted and sentenced to prison in September 2020.

¶7 In October 2020, Mother petitioned to terminate Father's parental rights on grounds of abandonment, neglect, incapacity, and felony conviction under A.R.S. §§ 8-533(B)(1)-(4).

¶8 The following month, Father sent Mother's employer an unsigned letter purportedly written by the parent of an unidentified 16-year-old boy whom Mother was allegedly "sleeping with." Claiming to have "sexual photos & videos of the illegal sexual activity," the letter's anonymous author threatened to sue Mother's employer unless the employer fired her. The letter also accused Mother, a licensed pharmacist, of "stealing a lot of narcotic pills" and "re-selling them to underage boys."

¶9 Father also sent letters to Mother from jail in which he called her "sick," a "whore," and a "bitch." Accusing her of "stealing narcotics" from her employer, Father warned, "Your gonna be going to jail soon [sic ]." On one occasion he sent Mother a postcard demanding that she bring the children to jail to visit him, warning,

I ain't playen!! You either are gona bring my kids to come see me or my parents are gona take you pharmacy license away bitch!!! [sic ]

¶10 In January 2021, almost a year after the First OOP expired, Mother applied for and obtained a second order of protection (the "Second OOP"), which prohibited Father from contacting Mother but made no reference to the children. Father never contested the Second OOP. Father was released from prison in November 2021. In January 2022, Mother applied for and obtained a third order of protection (the "Third OOP") which, like the First OOP, barred Father from contacting Mother or the children "except through attorneys, legal process, [or] court hearings." Father never contested the Third OOP.

¶11 After a four-day trial throughout September and November 2022, the court terminated Father's parental rights as to C.R. and A.R. on abandonment grounds. Father timely appealed. We have jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶12 A parent's right to custody and control of his or her child, though fundamental, is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec. , 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). The parental relationship may be terminated if the juvenile court finds, by clear and convincing evidence, at least one statutory ground for termination under A.R.S. § 8-533(B) and further finds, by a preponderance of the evidence, that termination is in the child's best interest. Timothy B. v. Dep't of Child Safety , 252 Ariz. 470, 474, ¶ 13, 505 P.3d 263, 267 (2022). We view evidence in the light most favorable to sustaining the juvenile court's findings, see Manuel M. v. Ariz. Dep't of Econ. Sec. , 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008), and we will affirm an order terminating parental rights absent an abuse of discretion, Mary Lou C. v. Ariz. Dep't of Econ. Sec. , 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).

A. Statutory Grounds for Termination

¶13 Abandonment of a child occurs when a parent fails to "provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). To establish abandonment, the evidence must show that the 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.

¶14 Father challenges the juvenile court's finding of abandonment, arguing that "[a]lthough it has been in excess of six months since [he] had contact with the children, it is with just cause." He explains that Mother "block[ed] him from communicating" with the children by "obtain[ing] orders of protection" and complains that she "refused to bring the children to the jail or prison for visits with him." Because "Mother actively sought to prevent contact between Father and the children on multiple fronts," Father contends, his lack of contact with the children does not support a finding of abandonment.

¶15 The well-established principle that "a parent who has persistently and substantially restricted the other parent's interaction with their child" may not then rely on the other parent's "limited involvement with the child" to "prove abandonment," Calvin B. v. Brittany B. , 232 Ariz. 292, 293, ¶ 1, 304 P.3d 1115, 1116 (App. 2013), applies only if the parent wrongfully restricts the other parent's access to the child. In Calvin B. , for example, this Court reversed a finding that the father "abandoned" his children because the mother had "violated" the parenting time provisions of their dissolution decree "by refusing to allow" him to exercise his court-ordered parenting time. Calvin B. , 232 Ariz. at 294, 297, ¶¶ 2, 24, 304 P.3d at 1117, 1120 ; accord Anthony O. v. Nora R. , 2 CA-JV 2022-0016, 2022 WL 2348526, at *4, ¶ 14 (Ariz. App. June 29, 2022) (mem. decision) (affirming termination of incarcerated father's rights to his children in part because, "[e]ven crediting" father's allegation that mother did not inform him of her new address and phone number after she and the children moved, "nothing in the record supports an allegation that she undertook those action[s] to evade him").

¶16 Here, by contrast, no evidence shows that Mother ever blocked Father's contact with the children in violation of any court order. On the contrary, the parties' dissolution decree expressly denied Father any parenting time. Although the decree authorized Father to seek an award of parenting time after completing specified steps to address his substance abuse and mental health issues, he did not complete those steps, nor did he otherwise seek to modify the decree. The record supports the juvenile court's determination that "Father's own failure to comply with the family court decree," rather than anything Mother did or didn't do, "is the reason Father does not have a parent-child relationship" with the children. See Christopher M. v. Aubrey R. , 2 CA-JV 2021-0122, 2022 WL 95468, at *1-2, ¶¶ 1, 6, 13 (Ariz. App. Jan. 10, 2022) (mem. decision) (affirming termination of father's rights on abandonment grounds in part...