                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                           ANTHONY L., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, J.E., A.E., Appellees.

                              No. 1 CA-JV 18-0379
                                FILED 3-19-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD34214
            The Honorable Lindsey G. Coates, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Appellee, Department of Child Safety
                         ANTHONY L. v. DCS, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


C A M P B E L L, Judge:

¶1           Anthony L. (“Father”) appeals the superior court’s order
terminating his parental rights to his two children based on the statutory
grounds of abandonment and the length of his incarceration, arguing the
court incorrectly weighed the evidence against him. Because reasonable
evidence supports the court’s order, we affirm.

                              BACKGROUND

¶2             Father is the biological father of J.E., born in 2005, and the
alleged biological father of A.E., born in 2007. Father was incarcerated for a
conviction of witness intimidation in 2006 and incarcerated again in 2008
for an assault conviction. After his release in 2012, Father did not visit either
child until 2016, when Mother separated from her boyfriend. At that point,
Father moved into the home with Mother and the children for about seven
months until he was arrested and extradited to Ohio in early 2017. There,
Father was convicted of theft and receiving stolen property and sentenced
to a prison term of two years and six months.

¶3            In May 2017, the Department of Child Safety removed the
children from Mother and filed a dependency petition regarding both
Mother and Father. Father did not contest the allegations, and the court
found the children dependent as to him. In February 2018, the children were
placed with their maternal grandparents in Colorado. In March, DCS
moved to terminate Father’s parental rights based on the grounds of
abandonment the length of his incarceration. After an evidentiary hearing,
the superior court terminated Father’s parental rights, finding that DCS had
met its burden of proof on both grounds and that termination was in the
children’s best interests.

                                DISCUSSION

¶4            The right to custody of one’s child is fundamental but not
absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship based


                                       2
                         ANTHONY L. v. DCS, et al.
                           Decision of the Court

on clear and convincing evidence of at least one of the statutory grounds
listed in A.R.S. § 8-533(B). Id. at 248, ¶ 12. The court must also find by a
preponderance of the evidence that termination is in the child’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).

¶5            We review a termination order for an abuse of discretion,
affirming unless no reasonable evidence supports the superior court’s
findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). The superior court is in the best position to “weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings,” and we view the facts in the light most favorable to
sustaining the court’s decision. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280-282, ¶¶ 4, 13 (App. 2002).

¶6           Under A.R.S. § 8-533(B)(1), “evidence sufficient to justify the
termination of the parent-child relationship shall include” that “the parent
has abandoned the child.” Under A.R.S. § 8-531(1), “abandonment” 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 relationship with the child without just cause for a
       period of six months constitutes prima facie evidence of
       abandonment.

No “bright line formula [has] developed to determine whether a parent
abandoned an existing relationship.” Pima Cty. Juv. Sev. Action No. S-114487,
179 Ariz. 86, 96 (1994). Abandonment is measured, “not by a parent’s
subjective intent, but by the parent’s conduct.” Michael J., 196 Ariz. at 249,
¶ 18.

¶7            Incarceration provides neither a legal defense to
abandonment nor alone justifies termination based on abandonment, but it
is one factor to consider in evaluating parents’ ability to perform their
parental obligations. Id. at 250, ¶ 22. “[W]hen ‘circumstances prevent the . . .
father 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.’” Id. (citation
omitted). Courts “should look to see whether the parent has taken steps to
establish and strengthen the emotional bonds linking him or her with the
child.” Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 21 (App. 2010).



                                       3
                         ANTHONY L. v. DCS, et al.
                           Decision of the Court

¶8              Father argues the superior court erred by finding that he
abandoned his children. He contends the court’s ruling was based, “in large
part, on [his] lack of relationship with the children prior to 2016,” but argues
he “remedied that presumptive abandonment” by living with the children
for seven months and by maintaining contact when he was once again
incarcerated in Ohio in 2017. He points to his testimony that he sent the
children numerous cards and gifts and participated in various treatment
programs while incarcerated and argues that the court’s ruling suggests it
is impossible to “cure abandonment.”

¶9             The court’s ruling was not merely based on that period of
“presumptive abandonment.” Rather, the court made detailed findings
cataloging Father’s overall attempts to create a parental relationship
throughout the children’s lives as well as his actions since his most recent
incarceration. For instance, the court found that Father had not provided
the children with any financial support during his long absences from their
lives. Father claimed that Mother’s jealous boyfriend kept him from seeing
the children between 2012 and 2016, but Father never reported the custodial
interference to law enforcement nor initiated any court proceeding to try to
obtain custody or visitation. Further, throughout the dependency, the
children still referred to Mother’s previous boyfriend as their dad, and the
oldest child reported that contact from Father was minimal. Father
admitted that during his most recent incarceration, he had been instructed
to send the children any correspondence through the DCS case manager,
but the case manager testified that Father had only done so twice. Although
Father provided conflicting testimony that he sent more cards and gifts to
the children, “[t]he resolution of conflicting evidence is ‘uniquely the
province of the juvenile court,’” and we do not reweigh the evidence on
appeal. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018) (citation
omitted).

¶10           The record reasonably reflects that under the definition of
“abandonment” in A.R.S. § 8-531(1), Father abandoned his children: he was
absent for most of the children’s lives; he did little to provide any consistent
support to the children throughout their lives; he failed to assert his
parental rights vigorously and maintain a normal parental relationship; he
had not established a strong existing bond with the children by the time of
his most recent incarceration; and he did little to communicate with the
children during the more than year-long period the dependency was
pending. Therefore, the superior court did not abuse its discretion in ruling
that Father abandoned the children.




                                        4
                        ANTHONY L. v. DCS, et al.
                          Decision of the Court

¶11            Father also challenges the superior court’s finding by a
preponderance of the evidence that termination was in the children’s best
interests, arguing that the court unfairly assessed the facts. Termination of
a parent-child relationship is in a child’s best interests “if the child would
be harmed if the relationship continued or would benefit from the
termination.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016) (citation
omitted). It is well-established that a child’s “prospective adoption is a
benefit that can support a best-interests finding,” id., and factors to consider
include whether (1) “an adoptive placement is immediately available,” (2)
“the existing placement is meeting the needs of the child,” and (3) “the
children are adoptable,” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
379, ¶ 30 (App. 2010).

¶12           Here, the superior court made detailed findings about the
children’s best interests and how they would benefit from the termination.
During the evidentiary hearing, the DCS caseworker testified to the
following: the children were residing with their maternal grandparents in
Colorado; the grandparents were willing to adopt both of the children,
keeping them together; the grandparents were meeting all of the children’s
needs; and the children would benefit from the permanency and stability
adoption would bring. This evidence reasonably supports the court’s
decision that termination was in the children’s best interests.

¶13            Because we affirm the superior court’s termination order
based on the ground of abandonment, we need not address Father’s
arguments regarding the statutory ground of the length of his incarceration.
See Jesus M., 203 Ariz. at 280, ¶ 3 (“If clear and convincing evidence supports
any one of the statutory grounds on which the juvenile court ordered
severance, we need not address claims pertaining to the other grounds.”).

                               CONCLUSION

¶14           For the foregoing reasons, we affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                         5
