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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           NATHAN B., Appellant,

                                        v.

                           LANA T., J.B., Appellees.

                             No. 1 CA-JV 18-0129
                               FILED 10-18-2018


         Appeal from the Superior Court in Maricopa County
                           No. JS19133
      The Honorable Alysson H. Abe, Judge Pro Tempore (Retired)

                                  AFFIRMED


                                   COUNSEL

Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant

Artemis Law Firm, PLLC, Tempe
By Jacqueline Soto
Counsel for Appellee Lana T.
                       NATHAN B. v. LANA T., J.B.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge James P. Beene and Chief Judge Samuel A. Thumma
joined.


M O R S E, Judge:

¶1            Nathan B. ("Father") appeals the superior court's termination
of his parental rights to J.B. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             J.B. was born in January 2007. For the first few months of his
life, he lived with his biological parents, Father and Renee R. ("Mother").
J.B. began living with Lana T. ("Grandmother"), J.B.'s paternal
grandmother, when he was approximately nine months old. Since then,
Grandmother has provided a stable home and cared for J.B. When J.B. was
about seventeen months old, Mother passed away.

¶3             In July 2008, Grandmother was appointed guardian of J.B. by
an Illinois court, where Grandmother and J.B. then resided. Grandmother
testified that she obtained this guardianship of J.B. because of Father's
ongoing drug abuse and inability to care properly for J.B. Father was
incarcerated at the time, but he did not object and testified that he initially
"didn't have a problem" with the guardianship. Father never inquired
further about the guardianship after Grandmother gained custody and
never moved to set aside or alter the guardianship.

¶4            J.B. was diagnosed with autism and, in September 2015,
Grandmother moved to Arizona to obtain autism-related services for J.B.
Grandmother stated that Father did not object to the move to Arizona, but
Father claimed that he "wasn't really given a choice." In the nearly eight
years J.B. lived in Illinois before their move to Arizona, Father never
attended J.B.'s medical appointments. Father also failed to participate in
any of J.B.'s school functions—including parent-teacher conferences and
meetings related to an individualized education plan ("IEP") for J.B.'s
autism.




                                      2
                       NATHAN B. v. LANA T., J.B.
                         Decision of the Court

¶5             The last time Father saw J.B. was in 2014. Father is not
allowed to leave Illinois given the consequences of his criminal convictions,
and Father has not offered to purchase J.B. a plane ticket to come visit him.
After J.B.'s birth, Father was incarcerated numerous times, spent nearly
seven years in custody, and has not had a stable home for the majority of
J.B.'s life. When Father was not incarcerated, he often lived with
Grandmother and J.B. (before they moved to Arizona in September 2015).
During one year while he worked at a grocery store, Father sometimes
brought home food for Grandmother and J.B.

¶6             During his entire time in Arizona with Grandmother, J.B. has
done well in school, has gone to occupational therapy and social skills
therapy, and has continued his IEP. Father has spoken with J.B. on the
telephone off and on, including once a week or every other week while
Father was incarcerated. Father has twice sent a few things, such as
clothing, to J.B., through family members. Father also helped purchase an
Xbox for J.B. during Christmas of 2016. Father claimed that he had not sent
more gifts to J.B. because he "wasn't allowed to know [Grandmother's]
address." He further stated he did not help J.B. financially because
Grandmother told him to "not worry about it" and to only worry about
himself.

¶7            In July 2017, Grandmother filed a petition for termination of
Father's parental rights to J.B. The petition sought termination on the
grounds of abandonment, neglect, substance abuse, length of felony
incarceration, and felony conviction. In February 2018, the Arizona court
in this case and the Illinois court that granted the guardianship in 2008,
conferred by telephone and determined that Arizona would be a more
convenient forum and that Illinois would not retain jurisdiction.1 See Ariz.
Rev. Stat. ("A.R.S.") § 25-1033(1). Grandmother testified that Father does
not have a stable home or job, is in and out of prison or jail, and has not
provided financially for J.B. Father testified that when he was not
incarcerated, any attempts to provide for J.B. were thwarted by
Grandmother. He further testified that he now has his own place where he
lives with "roommates."




1      Per this telephonic conference call with the Illinois superior court
judge, it appears that the guardianship that originated in Illinois continues
in Arizona.


                                     3
                        NATHAN B. v. LANA T., J.B.
                          Decision of the Court

¶8           In March 2018, the superior court held a contested
termination hearing and determined that Grandmother had not proven by
clear and convincing evidence grounds for termination based on substance
abuse and criminal conviction.          The court found, however, that
Grandmother proved, by clear and convincing evidence, grounds for
termination based on abandonment. See A.R.S. § 8-533(B)(1). The court also
found that Grandmother proved, by a preponderance of the evidence, that
termination of Father's rights was in J.B.'s best interests.

¶9             Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A).

                               DISCUSSION

¶10            We view the evidence "in a light most favorable to affirming
the trial court's findings." Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz.
102, 106 (1994). Further, we will uphold the superior court's findings of fact
unless they are unsupported by reasonable evidence, and we will affirm a
severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶11           To terminate parental rights, the superior court must find, by
clear and convincing evidence, at least one of the statutory grounds set out
in A.R.S. § 8-533, and that termination is in the best interests of the child.
A.R.S. § 8-533(B); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249,
¶ 12 (2000).

¶12            Father argues that the superior court erred in finding that he
abandoned J.B. Abandonment is not measured by a parent's subjective
intent; rather, it is measured by a parent's conduct. Michael J., 196 Ariz. at
249, ¶ 18. The superior court considers "whether a parent has provided
reasonable support, maintained regular contact, made more than minimal
efforts to support and communicate with the child, and maintained a
normal parental relationship" in addressing severance of parental rights
based on abandonment. Id. at 249-50, ¶ 18; see also A.R.S. § 8-531(1). "Failure
to maintain a normal parental relationship with the child without just cause
for a period of six months" is prima facie evidence of abandonment. A.R.S.
§ 8-531(1).




                                       4
                       NATHAN B. v. LANA T., J.B.
                         Decision of the Court

¶13            Father argues he did not abandon J.B. but that Grandmother
interfered with his ability to maintain a parent-child relationship with him.
See supra ¶ 7. He asserts that because Grandmother restricted his ability to
interact with J.B., she may not petition to terminate his rights based on
abandonment. Despite Father's testimony that Grandmother would not
allow him to provide support to J.B. and thwarted his opportunities to
properly parent him, Father never made any additional efforts to parent J.B.
otherwise nor did he seek legal advice. Moreover, when Grandmother
moved to Arizona with J.B. in 2015, it was not until almost two years later,
in 2017, that Father sought to assert parental rights, doing so only after she
filed a petition to sever Father's parental rights.

¶14               The superior court held that Father's relationship with J.B.
was "more like a long-distance friend and not that of a parent who is present
on a day-to-day basis." Even when he was not incarcerated, Father never
attended any of J.B.'s doctor's appointments or school meetings when J.B.
was living in Illinois, he did not provide J.B. with gifts or clothing on more
than a few occasions, he only speaks with J.B. on the telephone
intermittently, he has not provided meaningful financial support for him,
and he has not physically seen him for approximately four years. Nor did
Father ever attempt to set aside the guardianship that was put in place
nearly a decade ago. "When, as in the present case, 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." In re Pima
Cty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 97 (1994). Father's
efforts to exercise parental rights were neither persistent nor vigorous. On
this record, Father has not shown that the superior court's finding of
abandonment was clearly erroneous or unsupported by reasonable
evidence.2




2       Although Father does not challenge the best-interests finding, the
evidence introduced at the termination hearing shows that J.B. is in a
potential adoptive placement that is meeting his needs, and amply supports
the superior court's best-interests finding. See Alma S. v. Department of Child
Safety, 799 Ariz. Adv. Rep. 27, ¶ 14 (Sept. 14, 2018).


                                      5
                      NATHAN B. v. LANA T., J.B.
                        Decision of the Court

                              CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court's order
terminating the parent-child relationship between Father and J.B.




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




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