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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            MICHAEL M., Appellant,

                                         v.

                           KATIE A., E.O., Appellees.

                              No. 1 CA-JV 16-0443
                                FILED 8-15-2017


            Appeal from the Superior Court in Maricopa County
                              No. JS517064
                The Honorable Janice K. Crawford, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Katie A.
Appellee

Terrea L. Arnwine PLLC, Tempe
By Terrea L. Arnwine
Guardian Ad Litem for Appellee E.O.
                     MICHAEL M. v. KATIE A., E.O.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Margaret H. Downie joined.


C R U Z, Judge:

¶1           Michael M. (“Father”) appeals the superior court’s order
terminating his parental rights. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Father is the biological father and Katie A. (“Mother”) is the
biological mother of E.O., born August 16, 2007. Mother and Father were
unmarried at E.O.’s birth, and after E.O.’s birth, their relationship ended.
Mother and E.O. moved into the maternal grandmother’s home, and Father
moved in with his grandparents (“Great-Grandparents”).

¶3             During weekends, E.O. would stay with Great-Grandparents,
and Father would visit with E.O. at either Great-Grandparents’ or his
mother’s (“Grandmother”) house. Mother and Father maintained this
visitation schedule for approximately five months until Father was arrested
for theft-related charges in December 2007.1 Approximately six months
later, the family court awarded Mother sole legal decision-making
authority of E.O. and awarded Father supervised parenting time. Father
was incarcerated again in 2010 for burglary, but Mother continued to allow
Grandmother and Great-Grandparents visitation with E.O. on weekends
despite Father’s incarceration. Father remained in prison for the entirety of
the severance proceedings.2



1       Around this time, Mother and her parents acquired two orders of
protection against Father due to harassment and a domestic violence
altercation, so Grandmother or Great-Grandparents would pick E.O. up for
visitation.

2      Father was initially scheduled for release in 2013, but his sentence
was extended for an additional year-and-a-half because he used marijuana
while incarcerated.



                                     2
                       MICHAEL M. v. KATIE A., E.O.
                           Decision of the Court

¶4             In 2012, Mother started dating Alan A. (“Stepfather”) and told
Father to stop contacting her. She married Stepfather in April 2013, and she
filed for severance of Father’s parental rights in August 2013 on the grounds
of Father’s incarceration being of such length that E.O. would be deprived
of a normal home for a period of years. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(4).3 Mother later amended the petition to allege the grounds of
abandonment and inability to discharge parental responsibilities due to
substance abuse. See A.R.S. § 8-533(B)(1), (3).

¶5          Shortly after filing for severance, Mother noticed E.O. began
demonstrating behavioral issues, and in early 2014, Mother learned
Grandmother and Great-Grandparents had begun facilitating phone calls
between E.O. and Father on Grandmother’s cell phone. After Great-
Grandparents refused Mother’s request that they stop the calls, Mother
ended weekend visitation with the Great-Grandparents and Grandmother.

¶6            The severance hearing occurred in August 2014, and the
superior court issued its first ruling in November 2014. The court denied
Mother’s petition to sever, finding Father had abandoned E.O. but that
severance was not in E.O.’s best interest because it would cause E.O. to lose
her relationship with Great-Grandparents. E.O.’s guardian ad litem
appealed the best interest finding, and this Court vacated and remanded
the November 2014 ruling for reconsideration of E.O.’s best interest. E.O.
v. Michael M., 1 CA-JV 14-0310, 2015 WL 4655933, at *3, ¶ 14 (Ariz. App.
Aug. 6, 2015) (mem. decision) (“E.O. I”).

¶7             On remand, the superior court incorporated its factual
findings from the November 2014 ruling, affirmed the ground of
abandonment, and again found severance was not in E.O.’s best interest. It
specifically found, in part, that Mother had failed to “establish that the
stability, love, and permanence [E.O. was] already experiencing in the
home would be enhanced through adoption by Stepfather, especially in the
absence of any harm to [E.O.] in maintaining the parental bond between
[E.O.] and Father.” E.O.’s guardian ad litem appealed again, and this Court
vacated and remanded the November 2014 ruling for a determination of
E.O.’s best interest in light of Demetrius L. v. Joshlynn F., 239 Ariz. 1, 365 P.3d




3      We cite the current version of statutes unless revisions relevant to
this decision have occurred since the events in question.



                                        3
                      MICHAEL M. v. KATIE A., E.O.
                          Decision of the Court

353 (2016). E.O. v. Michael M., 1 CA-JV 15-0380, 2016 WL 4366739, at *1, ¶ 1
(Ariz. App. Aug. 16, 2016) (mem. decision) (“E.O. II”).

¶8            The superior court issued its final ruling in October 2016. It
again incorporated its findings on the ground of abandonment as set forth
in the November 2014 ruling and affirmed the ground of abandonment.
However, it found severance was in E.O.’s best interest because, in part: (1)
Stepfather was meeting all E.O.’s needs; (2) an adoption plan existed; (3)
Stepfather wanted to adopt E.O. but the proposed adoption would only be
legally possible if Father’s parental rights were terminated; (4) adoption by
Stepfather would provide E.O. with permanency and stability, ensuring
E.O. could stay with Stepfather and E.O.’s half-sibling if anything should
ever happen to Mother; and (5) Father’s abandonment had a negative effect
on E.O.

¶9            Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-
1201(A), and Arizona Rule of Procedure for the Juvenile Court 103(A).

                               DISCUSSION

¶10            Father challenges both the superior court’s abandonment and
best interest findings. For the following reasons, we affirm the superior
court’s order severing Father’s parental rights to E.O.

I.     Standard of Review

¶11            We review the superior court’s severance order for an abuse
of discretion. Frank R. v. Mother Goose Adoptions, 239 Ariz. 184, 190, ¶ 21,
367 P.3d 88, 94 (App. 2016). We view the facts in the light most favorable
to affirming the superior court’s findings. Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000).

¶12             A parent’s rights in the care, custody, and management of
their children are fundamental, but not absolute. Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005). A court may sever those
rights if it: (1) finds clear and convincing evidence of one of the statutory
grounds for severance in A.R.S. § 8-533(B); and (2) finds by a preponderance
of the evidence that severance is in the child’s best interest. A.R.S. § 8–
537(B); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–16, 1022.




                                      4
                      MICHAEL M. v. KATIE A., E.O.
                          Decision of the Court

II.    Abandonment

¶13           Father argues the superior court erred in finding he
abandoned E.O. because: (1) Mother prevented Father from having contact
with E.O.; and (2) insufficient evidence supported the court’s abandonment
finding.

¶14             A court may sever a parent’s parental rights if the parent
abandons the child. A.R.S. § 8-533(B)(1). “Abandonment” is “the failure of
a parent to provide reasonable support and to maintain regular contact with
the child, including providing normal supervision.” A.R.S. § 8-531(1). It
“includes a judicial finding that a parent has made only minimal efforts to
support and communicate with the child.” Id. “[A]bandonment is
measured not by a parent’s subjective intent, but by the parent’s conduct
. . . .” Michael J., 196 Ariz. at 249, ¶ 18, 995 P.2d at 685.

¶15            Incarceration “neither provide[s] a legal defense to a claim of
abandonment nor alone justifies severance on the grounds of
abandonment.” Id. at 250, ¶ 22, 995 P.2d at 686 (internal quotations and
citation omitted). It is but one factor to consider in evaluating a parent’s
ability to perform his parental obligations. Id. (citation omitted). Similarly,
nonpayment of child support alone is not enough to establish
abandonment. In re Yuma Cty. Juv. Court Action No. J-87-119, 161 Ariz. 537,
539, 779 P.2d 1276, 1278 (App. 1989). When circumstances prevent a parent
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.” Michael J., 196
Ariz. at 250, ¶ 22, 995 P.2d at 686 (citation and internal quotations omitted).

¶16           Father cites Calvin B. v. Brittany B., 232 Ariz. 292, 304 P.3d 1115
(App. 2013) and Jose M. v. Eleanor J., 234 Ariz. 13, 316 P.3d 602 (App. 2014)
in support of his assertion that Mother prevented him from having contact
with E.O. by terminating visits with Great-Grandparents and Grandmother
in February 2014. Although Father is correct that a parent “may not restrict
the other parent from interacting with their child and then petition to
terminate the latter’s rights for abandonment,” Calvin B., 232 Ariz. at 297,
¶ 21, 304 P.3d at 1120, that is not what happened here. Here, Mother
restricted Father’s family from interacting with E.O. after she filed the
severance petition.      Father had Mother’s address throughout the
proceedings, but except for one letter, chose to contact E.O. exclusively
through Grandmother and Great-Grandparents. Additionally, evidence in
the record indicates Father did not participate in the visitation available to
him prior to Mother’s petition, unlike the parents in Calvin B. and Jose M.


                                       5
                      MICHAEL M. v. KATIE A., E.O.
                          Decision of the Court

See Calvin B., 232 Ariz. at 297-98, ¶¶ 22-24, 29, 304 P.3d at 1120-21 (stating
father “vigorously assert[ed] his legal rights” to see his child prior to the
filing of the severance petition); Jose M., 234 Ariz. at 17, ¶¶ 18-19, 316 P.3d
at 606 (vacating best-interest finding because mother had declined father’s
pre-petition requests for court-ordered parenting time and “apparently
filed the severance action in response to Father’s attempt to establish court-
ordered parenting time”). Because Calvin B. and Jose M. are factually
distinguishable, neither controls the outcome of this case.4

¶17           Father’s argument that insufficient evidence supported the
superior court’s abandonment finding also fails. Father highlights social
worker Polly Thomas’ testimony that Father was interested in and
knowledgeable about E.O. in support of his assertion that he did not
abandon E.O. However, Thomas also stated that Father “had basically
delegated his parental rights to his biological mother, and she was doing
the visitation, the transportation, and the weekend visitation with his
daughter” before his incarceration and “maintained the father-child
relationship while he was incarcerated through correspondence and
sharing of information.”

¶18            Ample evidence supports Thomas’ statements and the
superior court’s finding that Father had “made only minimal efforts to
support and communicate with the child.” See A.R.S. § 8-531(1). Father
admitted at trial that before his imprisonment, he was unable to hold
employment, had been evicted due to his substance abuse problems, was
only able to sporadically make child support payments, and relied on
Grandmother and Great-Grandparents to provide for E.O. Father stated
E.O.’s clothing and wardrobe were purchased by Father and his family, but
Father could not specify which items had been purchased by him
specifically. Father also acknowledged being in arrears on child support by
several thousand dollars. Although we recognize Father’s family’s efforts
to maintain a relationship between E.O. and Father, sufficient evidence
supports the superior court’s finding of abandonment, and we find no
abuse of discretion.




4      To the extent Great-Grandparents and Grandmother wished to
continue visitation with E.O. after Father’s rights were severed,
Grandmother and Great-Grandparents could have petitioned for visitation
as advised by this court in E.O. I. See infra ¶ 22.



                                      6
                       MICHAEL M. v. KATIE A., E.O.
                           Decision of the Court

III.   Best Interest

¶19            Father asserts the superior court erred in concluding
severance was in E.O.’s best interest because: (1) it placed too much weight
on the fact that Mother was married to Stepfather; (2) severance would not
be in E.O.’s best interest because it would terminate her relationship to
Great-Grandparents;5 and (3) the court should not have applied Demetrius
L. retroactively.

¶20           When considering a child’s best interest, the superior court
“must balance the unfit parent’s ‘diluted’ interest ‘against the independent
and often adverse interests of the child in a safe and stable home life.’”
Demetrius L., 239 Ariz. at 4, ¶ 15, 365 P.3d at 356 (citation omitted).
Protecting a child’s interest in stability and security is of foremost concern
in this inquiry. Id. at ¶ 16. Severance is in the child’s best interest “if the
child would be harmed if the relationship continued or would benefit from
the termination.” Id. A prospective adoption is a benefit that can support
a best-interest finding. Id.

¶21            Here, sufficient evidence supports the superior court’s best
interest finding. As in Demetrius L., E.O. “already lives in a stable
household not only with a custodial parent, but also with a close, loving
stepparent who is prepared and willing to adopt” her; “Stepfather has been
married to Mother for several years”; and Stepfather’s adoption of E.O. “is
much more certain than a mere possibility.” Id. at 5, ¶ 19, 365 P.3d at 357.
Thomas testified that E.O. was in “a very secure, structured environment
with a biological parent and a stepparent who cares a great deal about her,”
and that Mother and Stepfather had “established a safe and secure home”
and were meeting E.O.’s educational needs. She also stated E.O. was
getting along well with her new step-sibling and biological sibling,6 and she
saw no reason to disrupt that relationship at the time. Thomas and the
maternal grandmother also testified that E.O. already addressed Stepfather
as her father.



5        In making this argument, Father highlights the superior court’s 2014
and 2015 rulings. However, we do not address the best-interest findings of
the 2014 and 2015 rulings because they were vacated by this Court. See E.O.
I, at *3, ¶ 14; E.O. II, at * 1, ¶ 1.

6      Stepfather brought a child into the marriage, and Mother and
Stepfather have a child in common.



                                      7
                       MICHAEL M. v. KATIE A., E.O.
                           Decision of the Court

¶22              Furthermore, to the extent severance would affect
Grandmother and Great-Grandparents’ relationship with E.O.,
Grandmother and Great-Grandparents could have petitioned for visitation
prior to severance pursuant to A.R.S. § 25-409(C), as this Court noted in E.O.
I, at *3, ¶ 13.7

¶23            Finally, we reject Father’s argument that the superior court
erred in applying Demetrius L. retroactively. In actions involving purely
civil matters, there is a “presumption that opinions by appellate courts of
this state are retroactive as well as prospective.” Chevron Chemical Co. v.
Superior Court, 131 Ariz. 431, 435-36, 641 P.2d 1275, 1279-80 (1982). In cases
with only prospective effect, the court will say so specifically. Hollywood
Continental Films v. Indus. Comm’n, 19 Ariz. App. 234, 236, 506 P.2d 274, 276
(1973). To overcome the presumption of both retroactive and prospective
effect, “the opinion (1) must have established a new legal principle by either
overruling clear and reliable precedent or by deciding an issue whose
resolution was not foreshadowed; (2) must affect adversely the purpose
behind the rule in question[;] and (3) must produce substantial inequitable
results if applied retroactively.” Chevron, 131 Ariz. at 436, 641 P.2d at 1280.

¶24             The supreme court did not specify that Demetrius L. was
prospective only. See Demetrius L., 239 Ariz. 1, 365 P.3d 353. Furthermore,
Demetrius L. did not “establish a new principle” or decide “an issue whose
resolution was not foreshadowed”; it merely clarified the interpretation of
an existing legal principle. See id. at 4, ¶ 12, 365 P.3d at 356 (“When a current
placement meets the child’s needs and the child’s prospective adoption is
otherwise legally possible and likely, a juvenile court may find that
termination of parental rights, so as to permit adoption, is in the child’s best
interests.”) (citing Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50-51,
¶¶ 19-21, 83 P.3d 43, 50-51 (App. 2004) and Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 378, ¶ 6, 982 P.2d 1290, 1292 (App. 1998)). The court did
not err in applying Demetrius L. to this case.

¶25            Because sufficient evidence supported the superior court’s
best interest finding, we find no abuse of discretion.



7      “Pursuant to [§ 25-402(B)(2)] a person other than a legal parent may
petition the superior court for visitation with a child.” A.R.S. § 25-409(C).
“The superior court may grant visitation rights during the child’s minority
on a finding that the visitation is in the child’s best interests and that . . .
[t]he child was born out of wedlock and the child’s legal parents are not
married to each other at the time the petition is filed.” A.R.S. § 25-409(C)(2).


                                        8
                   MICHAEL M. v. KATIE A., E.O.
                       Decision of the Court

                            CONCLUSION

¶26          For the foregoing reasons, we affirm the superior court’s
order severing Father’s parental rights to E.O.




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




                                     9
