BREARCLIFFE, Judge
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. S20160157
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL Sarah Michèle Martin, Tucson
Counsel for Appellant Domingo DeGrazia, Tucson
Counsel for Appellee Deborah M. Pima County Office of Children's Counsel, Tucson
By John Walters
Counsel for Appellee A.M.
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. BREARCLIFFE, Judge: ¶1 In this private severance proceeding filed by Deborah M., mother of A.M., born in 2013, the juvenile court terminated the parental rights of Michael M. based on the ground of abandonment pursuant to A.R.S. § 8-533(B)(1). The court also found that severance was in A.M.'s best interests. Michael challenges the sufficiency of the evidence supporting the court's finding that he abandoned A.M. and maintains the court improperly considered evidence of domestic violence in its ruling. We affirm for the reasons stated below. ¶2 A juvenile court may terminate a parent's rights only if it finds by clear and convincing evidence that a statutory ground for severance exists and finds by a preponderance of the evidence that severance is in the child's best interests. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). On review, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). ¶3 We view the evidence in the light most favorable to upholding the juvenile court's ruling. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000). The parents' relationship was fraught with incidents of domestic violence, beginning with Michael's "awful" beating of Deborah early in her pregnancy with A.M. In light of continuing domestic violence incidents between the parents, the court ordered the removal of A.M., another one of Deborah's children, and Michael's son from the family home in November 2014; the children were returned to Deborah approximately three weeks later with instructions that Michael have no contact with Deborah. Following another serious domestic violence incident in July 2015, Deborah obtained an order of protection that included A.M. and Michael's son. The parties were divorced in November 2015, and Michael was ordered to pay child support for A.M. ¶4 In July 2016, Deborah petitioned to terminate Michael's rights to A.M. on the grounds of abandonment, neglect or abuse, mental illness or history of chronic substance abuse, and deprivation of civil liberties due to a conviction; she also obtained another protective order that same month. See § 8-533(B)(1), (2), (3), (4). After a contested severance hearing held on four days between April and June 2017, the juvenile court granted Deborah's petition on the ground of abandonment and made specific factual findings in a written ruling filed on July 24, 2017. ¶5 Section 8-531(1), A.R.S., defines abandonment as
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 relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment.
Imprisonment alone neither justifies nor precludes severance based on abandonment, rather an incarcerated parent "must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary."
Michael J.,
196 Ariz. 246, ¶ 22,
quoting In re Pima Cty.
Action No.
S-114487, 179 Ariz. 86, 97 (1994). "[A]bandonment is measured not by a parent's subjective intent, but by the parent's conduct."
Id. ¶ 18.
¶6 In its July 2017 ruling terminating Michael's parental rights, the juvenile court found Deborah had established a prima facie case of abandonment. It noted that Michael had not seen A.M. since July 2015; had not attempted to dismiss or modify the protective orders except for one hearing request in April 2017; had not attempted to modify the parenting time order following the parents' divorce; and had "chose[n]" not to make any child support payments. The court further determined Michael "did not act persistently to maintain the relationship with [A.M.] nor did he vigorously assert his legal rights to the extent necessary," and he had "made no or minimal effort to support [A.M.] or to communicate with [her] since July 2015 and ha[d] therefore abandoned [her]."
¶7 We view the evidence in the light most favorable to upholding the juvenile court's ruling,
Manuel M.
v.
Ariz.
Dep't of Econ.
Sec.,
218 Ariz. 205, ¶ 2 (App. 2008), and conclude there was sufficient evidence to support the court's findings. The evidence included a social study of the family prepared by an individual retained by Deborah, which provided that Michael had not seen or had contact with A.M. since July 2015. The author of that study testified that parents who are in custody can file for "some sort of custodial decision making" and that doing so "shows the initiative to establish a relationship and be a parent." Deborah similarly testified that Michael's last contact with A.M. had occurred on the same day Michael had assaulted her in the presence of A.M. and three other children. The family's case manager with the Department of Child Safety testified that due to the circumstances of the July 2015 domestic violence incident, she agreed that the children had been properly included in the order of protection. She further testified that she had not received any cards or letters from Michael for A.M., he did not inquire about her, nor did she recall him taking any steps to modify the orders of protection.
¶8 Michael argues that "the severance order is wholly unsupported by the evidence." He also asserts the admission of evidence related to the domestic violence in his relationship with Deborah violated his fundamental rights under the United States and Arizona Constitutions. He contends that, "[h]owever disturbing and unfortunate, the domestic violence and injuries to the mother are not relevant to a determination of abandonment" and notes that he objected to the admission of such evidence below. Although the juvenile court did, in fact, refer to the domestic violence between the parents in its ruling, Michael has not established that the ruling was not supported by evidence independent of the domestic violence or that the court's reference to evidence of domestic violence was improper based on the circumstances in this case.
¶9 As previously noted, the evidence established not only that Michael had no contact with A.M. between July 2015 and the severance trial, but that between July 2015 and the filing of the petition one year later, Michael essentially made no effort to modify the protective orders to obtain visits with A.M.
And notably, the record does not indicate Michael petitioned the court for permission to provide, directly or indirectly, any gifts or cards to A.M. without violating the no-contact order. Michael also argues because of his incarceration, he was unable to pay court-ordered child support. However, as the court correctly noted in its ruling, although Michael received regular income while he was incarcerated, he "chose" not to support A.M., nor did he attempt to modify the child support order to reduce his support obligation.
¶10 As the juvenile court found, the record does not show that Michael acted "persistently" to establish a relationship with A.M. or that he "vigorously" asserted his rights to do so.
Michael J.,
196 Ariz. 246, ¶ 22,
quoting Pima Cty.
No.
S-114487, 179 Ariz. at 97. Moreover, Michael's arguments do not negate the reasonable evidence supporting the court's factual findings.
And while it may be true that the protective order and Michael's incarceration impeded his ability to contact A.M., it is Michael's own conduct that made it necessary for the court to impose the very safety measures that restricted his contact with his daughter. We similarly reject Michael's suggestion that, by having obtained an order of protection, Deborah "thwart[ed]" his ability to have "any contact whatsoever with [A.M.], including cards, gifts, letters or telephone calls." While we acknowledge that "a parent who has persistently and substantially restricted the other parent's interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child,"
Calvin B.
v.
Brittany B.,
232 Ariz. 292, ¶ 1 (App. 2013), that did not occur here. Additionally, as Deborah and A.M. correctly
argue, evidence of domestic violence was relevant to the court's best interests finding, which Michael does not challenge on appeal.
¶11 Finally, "[t]he concept of abandonment and terms such as 'reasonable support' or 'normal parental relationship' are somewhat imprecise and elastic. Therefore, questions of abandonment . . . are questions of fact for resolution by the [juvenile] court."
In re Maricopa Cty.
Juv.
Action No.
JS-500274, 167 Ariz. 1, 4 (1990). Accordingly, to the extent Michael asks us to reweigh the evidence, we will not do so.
See Jesus M.,
203 Ariz. 278, ¶ 12. Rather, we defer to the juvenile court in this regard because it is "in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts."
See Ariz.
Dep't of Econ.
Sec.
v.
Oscar O.,
209 Ariz. 332, ¶ 4 (App. 2004).
¶12 We affirm the juvenile court's ruling terminating Michael's parental rights to A.M.
Michael's parental rights to his son were terminated in July 2016. That child lives with Deborah, who has adopted him.
Michael was incarcerated from August 31, 2015, to December 15, 2016, on charges related to the July domestic violence incident.
Michael testified that he did not challenge the orders of protection until April 2017, after Deborah filed the petition to sever in July 2016.
For example, Michael criticizes the juvenile court's finding that "[t]he last time [he] saw [A.M.] was when he severely beat [Deborah] on July 8, 2015." However, Michael focuses only on the court's reference to the domestic violence incident, while ignoring the undisputed fact that he had not seen A.M. in almost two years.
In finding that severance would be in A.M.'s best interests, the juvenile court noted that Michael had "shown extreme violence and cruelty throughout [A.M.'s] young life" and that the domestic violence in this case was "horrific." --------