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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               JERRY P., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, A.P., Appellees.

                              No. 1 CA-JV 14-0210
                                FILED 4-28-2015


            Appeal from the Superior Court in Maricopa County
                              No. JD16784
                  The Honorable Joan M. Sinclair, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

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



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1            Jerry P. (“Father”) appeals the superior court’s order
terminating his parental rights to his son A.P. based on abandonment. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            A.P. was born in January 2011. Father had been incarcerated
since September 2010 and was not present at A.P.’s birth. A.P.’s mother
(“Mother”) was arrested in October 2012, after which the Arizona
Department of Child Safety (“DCS”) removed A.P and his siblings from
Mother’s care.1 A.P. and five of Mother’s other children were placed with
his maternal great-aunt and uncle. Father was released from prison in mid-
June 2014.

¶3            In August 2013, while Father was still incarcerated, DCS
moved to terminate Father’s parental rights on grounds of abandonment.2
At the contested severance trial in July 2014, Father testified that he began
writing letters to A.P. after DCS filed the severance motion. Father
acknowledged that he had never met A.P., and that he had never provided
any support while in prison even though he received income from his
Native American tribe ranging from $270 to $500 each quarter. Father
admitted that the only information he knew of A.P was through a letter
from the placement. Father also admitted that he did not have a normal
parent–child relationship with A.P. and that he was unable to parent A.P.
“at the moment.” The DCS caseworker testified that Father had not



1       Mother’s parental rights were also terminated, but she is not a party
to this appeal.
2       DCS originally asserted that the length of Father’s felony sentence
was an additional basis for severance, but withdrew that allegation after
Father’s release.



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                            JERRY P. v. DCS, A.P.
                            Decision of the Court

contacted DCS or requested any visits with A.P. either before or after his
release from prison.

¶4             At the conclusion of the hearing, the superior court
terminated Father’s parental rights, finding that DCS had proven by clear
and convincing evidence Father had abandoned A.P. See Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(1).3 The court further found that A.P.’s great-aunt and
uncle were willing to adopt A.P and concluded that that “[i]t is in the best
interests of the child to be out of the system and adopted with his siblings.”

¶5            Father timely appealed. We have jurisdiction under A.R.S. §
8-235(A).

                                DISCUSSION

¶6            Father argues the superior court erred by (1) terminating his
parental rights notwithstanding his efforts to maintain a relationship with
A.P. and to improve his parenting abilities while in prison and (2)
terminating his parental rights even though DCS had not provided any
services.

¶7             To terminate parental rights, the superior court must find by
clear and convincing evidence at least one statutory ground for severance
and must find by a preponderance of the evidence that termination would
serve the child’s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We accept the court’s factual
findings “unless no reasonable evidence supports those findings” and will
affirm a termination of parental rights “unless it is clearly erroneous.”
Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074,
1078 (App. 2007) (citation omitted).

¶8            Abandonment is defined by statute 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



3     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            JERRY P. v. DCS, A.P.
                            Decision of the Court

       period of six months constitutes prima facie evidence of
       abandonment.

A.R.S. § 8-531(1). Abandonment is measured by the parent’s conduct, not
his subjective intent. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249–50, ¶ 18, 995 P.2d 682, 685–86 (2000).

¶9            Although imprisonment alone does not justify severance
based on abandonment, imprisonment does not preclude severance on this
basis either. An incarcerated parent “must act persistently to establish the
relationship however possible and must vigorously assert his legal rights
to the extent necessary.” Id. at 250, ¶ 22, 995 P.2d at 686 (citation omitted).

¶10            Here, sufficient evidence supported the finding of
abandonment. Father testified that he knew A.P. was his son “when
[Mother] was two months [pregnant],” which was prior to his incarceration.
Although Father took parenting classes while incarcerated in an effort to
develop his parenting skills, he acknowledged that he had no relationship
with A.P. and that he would not be able to effectively parent A.P. or provide
for his special needs as of the time of the severance trial.

¶11            Father failed to provide any support for or to maintain any
consistent contact with A.P. Father did not begin sending A.P. letters until
months after DCS filed its severance motion. Further, Father failed to
provide any of his quarterly income or any other financial support to A.P.
Father admitted at the severance hearing that even though he received
information about the case while he was incarcerated, he never requested
visitation through the court or his attorney. Father also acknowledged that
upon release from prison, he did not attempt to visit A.P. or inquire about
visitation with the DCS case manager. Under these circumstances, the court
did not err by finding that Father had abandoned A.P.

¶12             Father additionally argues that severance was improper
because DCS failed to provide him any services. Because Father did not
raise this issue before the superior court however, he has waived the issue
on appeal. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶
18, 319 P.3d 236, 241 (App. 2014). Moreover, in the absence of an existing
parent–child relationship, a parent is not entitled to reunification services
when severance is sought based on abandonment. See Toni W. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 61, 64, 66, ¶¶ 9, 15, 993 P.2d 462, 465, 467 (App. 1999).

¶13          Father does not challenge the superior court’s best interests
finding, and we find no error in the court’s determination that severance
was warranted.


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                        JERRY P. v. DCS, A.P.
                        Decision of the Court

                           CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights as to A.P.




                               :ama




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