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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            GILBERTO R., Appellant,

                                         v.

                           MARIA B., E.R., Appellees.

                              No. 1 CA-JV 15-0045
                                FILED 8-11-2015


            Appeal from the Superior Court in Maricopa County
                              No. JS517304
                  The Honorable Rodrick Coffey, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm P.L.L.C., Scottsdale
By Christopher Stavris
Counsel for Appellant

Maria B., Phoenix
Appellee



                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
                      GILBERTO R. v. MARIA B., E.R.
                          Decision of the Court

W I N T H R O P, Judge:

¶1             Gilberto R. (“Father”) appeals the juvenile court’s order
terminating his parental rights to E.R. (“the child”). Father does not contest
that a statutory ground for severance was proven, but contends the juvenile
court erred when it concluded severance of the parent-child relationship
was in the child’s best interest. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Maria B. (“Mother”) and Father are the parents of E.R., a child
born in 2006. Mother and Father lived together for approximately one year
following the birth of the child, until their relationship ended and Mother
moved into the maternal grandmother’s home. After the parties’
separation, Father was incarcerated from August 2007 to late December
2010. Following his release from prison in 2010, Father saw the child one
time before returning to prison in July 2012. 1 During both periods of his
incarceration, Father had no contact with the child.

¶3            In March 2014, Mother filed a petition to terminate the parent-
child relationship between the child and Father, alleging two statutory
grounds for termination. First, Mother asserted Father had abandoned the
child because he had failed to maintain a normal parent-child relationship
with the child without good cause for an extended period of time. See Ariz.
Rev. Stat. (“A.R.S.”) § 8-533(B)(1).2 Second, Mother asserted Father had
neglected the child, as Father had failed to provide basic necessities for her
well-being. See A.R.S. § 8-533(B)(2). Mother also asserted severance of
Father’s parental rights would serve the best interest of the child, as
Mother’s husband (“Stepfather”) could then adopt the child.

¶4         The juvenile court set a contested severance hearing for
November 10, 2014. Before the hearing, the court granted a petition of the




1      Father testified at the severance hearing that he was scheduled to be
released from the Arizona Department of Corrections on November 29,
2014.

2     We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.




                                      2
                      GILBERTO R. v. MARIA B., E.R.
                          Decision of the Court

paternal grandmother (“Paternal Grandmother”) to intervene.3 During the
contested hearing, Mother, Father, Stepfather, and Paternal Grandmother
testified. Stepfather testified he desired to adopt the child.4 Stepfather
further testified the child’s last contact with Father occurred “five or six”
years ago, and since that time, Father had failed to have or initiate any
contact with the child through cards or letters, or to support the child, from
the point of his first incarceration to the present. Mother then testified the
child had not seen Father since 2010. Mother also stated neither she nor
Stepfather had ever obstructed Father’s ability to see the child by denying
Father any contact, hiding the child, or refusing cards and gifts from Father.
Mother testified Father never provided financial support for the child, and
also stated that, in her opinion, Father had abandoned the child.

¶5             Paternal Grandmother testified that, although Father had
given her letters to give to the child, she did not do so and did not inform
Mother of the letters’ existence because she did not want to “jeopardize the
court [visitation] order [she] had.”5 Paternal Grandmother also opined that
Father had maintained the parent-child relationship “as best as he could.”

¶6             Father testified he and Mother lived together for a year-and-
a-half after the child was born. Father stated that, during that time, he
provided the sole income for Mother and the child, and he engaged in
normal parental responsibilities. Father estimated the last time he had seen
the child was sometime in 2011. He claimed he had called Mother and
Stepfather numerous times while out of prison in an effort to visit the child,
but “[n]othing official” was ever arranged. Father testified he sent letters
and cards to the child through Paternal Grandmother while incarcerated,

3       Paternal Grandmother alleged it was in the child’s best interest to
allow her to intervene due to the strong bond she had with the child. The
juvenile court had previously awarded Paternal Grandmother grandparent
visitation in July 2011.

4      Mother asserts in her answering brief that, following the severance
of Father’s parental rights, Stepfather has adopted the child.

5     Paternal Grandmother testified that, in addition to letters, Father
gave her approximately $300 for the child. Father corroborated this
statement in his testimony. Paternal Grandmother stated she used those
funds while with the child; however, neither Mother nor the child knew the
funds came from Father. Mother testified she never received any financial
support from Father for the child from either Father or Paternal
Grandmother.


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                       GILBERTO R. v. MARIA B., E.R.
                           Decision of the Court

but he was unsure whether Paternal Grandmother provided the child with
those items. Father further acknowledged his imprisonments deprived him
and the child of a normal parent-child relationship. Between Father’s
periods of incarceration, Father never sought parenting time orders in
family court.

¶7             The juvenile court severed Father’s parental rights on
November 21, 2014. The court found Mother had demonstrated by clear
and convincing evidence that Father had abandoned the child, but failed to
prove Father had neglected the child. Finally, the court found it was in the
child’s best interest to terminate Father’s parental rights.

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

                                  ANALYSIS

¶9              Father appeals only the juvenile court’s finding that
termination of his parental rights was in the child’s best interest. Unless the
trial court’s findings of fact were clearly erroneous, we will not disturb the
court’s termination order absent an abuse of discretion. Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (citation
omitted). “To justify termination of the parent-child relationship, the trial
court must find, by clear and convincing evidence, at least one of the
statutory grounds set out in section 8-533, and also that termination is in
the best interest of the child.” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 249, ¶ 12, 995 P.2d 682, 685 (2000) (citing A.R.S. § 8-533(B)).

¶10            Mother alleged two separate statutory grounds for
termination: abandonment and neglect. See A.R.S. § 8-533(B)(1)-(2). The
juvenile court found Mother proved by clear and convincing evidence that
Father had abandoned the child. By failing to contest the finding of
abandonment on appeal, Father has waived this issue, see State v. Guytan,
192 Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App. 1998) (arguments not raised
in an opening brief are waived), and nothing in our review of the record
indicates the juvenile court abused its discretion in finding abandonment.

¶11           Mother also alleged in her petition that severing Father’s
parental rights would be in the child’s best interest, and the juvenile court
found it was in the best interest of the child to sever Father’s parental rights.
On this record, the juvenile court did not abuse its discretion or make a
clearly erroneous finding in determining the child’s best interest is served
by severing Father’s parental rights.


                                        4
                      GILBERTO R. v. MARIA B., E.R.
                          Decision of the Court

¶12            Father had not seen or spoken to the child since at least 2011,
approximately three to four years before the hearing date, and although he
testified he would like the opportunity “to get to know her,” he admitted
he did not know the child and had deprived her “of the normal
parent/child relationship by [his] being incarcerated.” Father had been
incarcerated for more than half of the child’s life, admittedly never
contacted her while incarcerated, and made very few attempts to contact
her during periods of his release. Mother and Stepfather testified it had
been many years since Father’s last contact with the child, despite a lack of
interference on their part, and Father had failed to ever send any cards,
letters, or financial support. The credibility of the witnesses on this issue
was for the juvenile court to decide, see Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002); however, even were we
to assume Father wrote letters to the child as he testified, his selected agent,
Paternal Grandmother, unilaterally chose not to deliver the letters. In the
meantime, Stepfather has acted as the child’s father in loco parentis since
approximately 2007, demonstrating commitment and stability for a
significant period of time.6

¶13           Father’s argument on appeal focuses on the ultimate effect
severance of his parental rights will have on Paternal Grandmother’s
visitation with the child. Paternal Grandmother is not a party to this appeal,
and Father may not represent her on appeal or argue in her place.
Nonetheless, Father may argue the child’s best interest is not served by
severance because the result of severance may be that the child will be
deprived of the benefit of the continued relationship she has developed
with Paternal Grandmother. The juvenile court specifically addressed
Paternal Grandmother’s visitation rights, however, stating that severance
of Father’s rights “will not automatically terminate [Paternal
Grandmother’s] rights to visit [the child].” Further, there is no allegation
or evidence that Paternal Grandmother’s court-ordered visitation has been
hampered by Father’s parental rights being severed.




6      Stepfather has either already adopted the child or is now in a
position to move forward with the process of adopting the child, providing
the child with further stability and permanency. “One factor the court may
properly consider in favor of severance is the immediate availability of an
adoptive placement.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377,
¶ 5, 982 P.2d 1290, 1291 (App. 1998).


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                     GILBERTO R. v. MARIA B., E.R.
                         Decision of the Court

                             CONCLUSION

¶14          For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights.




                                   :RT




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