Cindy M. v. Claudio H., C.H.

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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              CINDY M., Appellant,

                                         v.

                         CLAUDIO H., C.H., Appellees.

                              No. 1 CA-JV 20-0166
                                FILED 10-29-2020


           Appeal from the Superior Court in Maricopa County
                              No. JS20123
         The Honorable Eartha K. Washington, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Claudio H., Phoenix
Appellee



                        MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
                     CINDY M. v. CLAUDIO H., C.H.
                         Decision of the Court

C R U Z, Judge:

¶1           Cindy M. (“Mother”) appeals the superior court’s order
terminating her parental relationship to her daughter, C.H. For the
following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2           C.H. was born in May 2011, and is the biological daughter of
Mother and Claudio H. (“Father”). Father, Mother, and C.H. lived together
in paternal grandparents’ house, along with Mother’s other biological
daughter, C.M. However, less than a year after C.H.’s birth, the
Department of Child Safety (“DCS”) removed C.H. and C.M. from Mother
and Father’s home because of unexplained bruising on C.M.’s back and
neck. This bruising was later determined to be non-accidental and caused
by Mother.

¶3            About a year later, DCS returned C.H. to Father’s custody.
Mother and Father had since separated, and while Father and C.H.
continued to live in paternal grandparents’ home, Mother moved to a
residence a couple of streets away. The superior court issued orders that
gave Father sole legal decision-making authority and primary custody of
C.H. The court granted Mother visitation for four hours each Wednesday
and Saturday. The court’s order stated that “[t]he parent whose parenting
time is beginning will be responsible for picking up the child at the other
parent’s residence or the child’s school.” The superior court directed the
parents to use email as their primary method for communication regarding
C.H., and it directed each parent to maintain and regularly review their
email accounts. Finally, the court ordered Mother to pay child support to
Father for $100 per month.

¶4            Father began dating Stephanie H. in 2013, and in 2015, Father
and C.H. moved out of paternal grandparents’ home and into a home with
Stephanie H. However, Father still made C.H. available at the paternal
grandparents’ home for pickup by Mother during her visitation times,
given Mother’s close proximity and because that was the pickup location
the parties had originally agreed. In 2016, Father and Stephanie H. married.
Although the exact date is disputed, the last time Mother had exercised her
parenting time, saw, or spoke with C.H. was in the spring of 2016.

¶5            In 2019, Father filed a petition to terminate Mother’s
relationship to C.H., alleging abandonment, neglect/abuse, incapacity, and
criminal conviction. Father argued that Mother had failed to make any



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                     CINDY M. v. CLAUDIO H., C.H.
                         Decision of the Court

contact with C.H. in two-and-a-half years, Mother had not paid any child
support, Mother’s intellectual functioning may place C.H. at risk, and
Mother had previously been convicted of domestic violence. Father also
contended that termination was in C.H.’s best interests because Mother “is
incapable to parent [sic] [C.H.] and has no interest in supporting [C.H.]”
and that Mother was “neglecting [C.H.] and not abiding by the court’s
orders.” He also stated that a plan for adoption by Stephanie H. was in
place.

¶6             Father was concerned Mother would now attempt to exercise
her parenting time in response to his termination petition, so he sought to
suspend Mother’s visitation. The superior court shared Father’s concerns
that after years of no contact between Mother and C.H., unsupervised visits
could be detrimental to C.H.’s physical, mental, or emotional health. In
October 2019, the superior court modified Mother’s visitation and granted
her supervised visits on Monday evenings for two hours. A hearing was
scheduled to discuss the topic of supervised visitation, but Mother did not
attend. Mother did not participate in supervised visitations from the
October 2019 order date through the severance hearing date held in March
2020.

¶7            Following the severance hearing, the superior court granted
Father’s petition because Mother had abandoned C.H. Mother timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).

                               DISCUSSION

¶8            Although the right to custody of one’s children is
fundamental, it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parental relationship, the
superior court must make a two-part inquiry. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 149-50, ¶ 8 (2018). First, the court must find by clear and
convincing evidence at least one of the grounds for termination in A.R.S.
§ 8-533(B). Id. Second, the court must find by a preponderance of the
evidence that termination is in the child’s best interests. Id.

¶9            “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
Accordingly, we accept the court’s factual findings if reasonable evidence




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                      CINDY M. v. CLAUDIO H., C.H.
                          Decision of the Court

supports them and will affirm its termination ruling unless it is clearly
erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).

I.     Statutory Ground of Abandonment

¶10        The superior court terminated Mother’s relationship
pursuant to A.R.S. § 8-533(B)(1), finding Mother abandoned C.H.
Abandonment is defined 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 period of six months constitutes prima facie
       evidence of abandonment.

A.R.S. § 8-531(1). Whether a parent has abandoned her child requires an
objective analysis of the parent’s conduct, and it is not measured by a
parent’s subjective intent. Michael J., 196 Ariz. at 249-50, ¶ 18.

¶11            The superior court found that Mother has not had a
relationship with C.H. for four years. Since 2016, Mother has not exercised
her parenting time and has provided no cards, gifts, or letters to C.H.
Mother was ordered to pay child support in 2014, but has not made any
payments.      Although nonsupport alone is insufficient to establish
abandonment, it is a factor to be considered. When nonsupport is coupled
with a failure to communicate or the absence of sending gifts, this court has
upheld a determination that the child has been abandoned. Yuma Cnty. Juv.
Ct. Action No. J-87-119, 161 Ariz. 537, 539 (App. 1989); see also Maricopa Cnty.
Juv. Action No. JS-3594, 133 Ariz. 582, 586 (App. 1982).

¶12            Mother argues that the superior court erred in finding she
abandoned C.H. because Father had blocked her access to the child in
retaliation against Mother for telling Stephanie H. that Mother and Father
engaged in an affair in 2016. Mother claims that after Father and C.H.
moved out of paternal grandparents’ home, Father did not tell Mother his
new address. Mother further contends Father blocked her telephone
number, blocked her on social media accounts, and refused to provide her
with transportation, knowing she did not own a car. Mother cites to Calvin
B. v. Brittany B., 232 Ariz. 292 (App. 2013), which found that a father had
not abandoned his child where the mother had prevented the father from
having more involvement in their child’s life.


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                     CINDY M. v. CLAUDIO H., C.H.
                         Decision of the Court

¶13            However, Father denied that he prevented Mother from
visiting with C.H. because Mother told Stephanie H. about the affair. Father
testified he did not block Mother from social media accounts and his
telephone number until 2017, and it was in response to Mother sending him
harassing messages that had nothing to do with visiting C.H. Additionally,
in its custody and legal decision-making orders, the court ordered the two
parties to communicate through email, and Father testified that he did not
block Mother from sending him emails. Mother admitted that she never
attempted to communicate with Father through email. Although Mother
denied knowing Father’s email address, it was provided to the parties by
the court in a parenting conference report.

¶14           Father also testified that he made sure C.H. was ready to be
picked up and available to Mother on all of Mother’s visitation days from
2016 through the time of the termination hearing, but Mother failed to take
advantage of her parenting time. Mother claimed she did not know
Father’s address after he moved, but the address was provided in court
documents. Regardless, Father stated that he had continued to make C.H.
available for pickup at the paternal grandparents’ home, and Mother
conceded that she never went to the grandparents’ home during her
visitation hours to pick up C.H. since early 2016. Although Mother argues
she did not have a car, and Father refused to provide her transportation,
this was not Father’s responsibility. The court documents make it clear that
transportation was Mother’s responsibility. Mother also lived only a couple
of blocks away from the paternal grandparents’ house, and she testified that
in the past she would walk to the paternal grandparents’ home to pick up
C.H. during her visitation hours.

¶15           Additionally, there was testimony that from 2014 through
2016, before the period in which Mother alleges Father blocked her access
to C.H., Mother’s visits with C.H. were “sporadic.” There was further
testimony that in August 2016, Father and Stephanie H. offered Mother
additional parenting time, but Mother never took advantage of this offer.
Mother also failed to exercise supervised visits she was granted in October
2019 and failed to attend a hearing on visitation, even though she knew the
termination petition was pending. Mother claimed there were no available
openings at the visitation centers she contacted, and she was placed on a
waiting list, although she did not provide supporting evidence. And
according to her testimony, Mother did not put herself on a waiting list until
two months after the court ordered supervised visitations.

¶16           Although Mother argues that Calvin B. controls here, the facts
in Calvin B. differ from this case. In Calvin B., the father had filed multiple


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                      CINDY M. v. CLAUDIO H., C.H.
                          Decision of the Court

petitions to increase his parenting time. Id. at 297, ¶ 22. The mother in
Calvin B. admitted to canceling some of the father’s visitations, and the
court found she had violated a court order by preventing the father from
contacting their child. Id. at ¶ 24.

¶17          Here, the superior court found “[t]here was no evidence
presented that showed that either Father or his wife ever prevented Mother
from seeing the child.” Father testified that he made C.H. available to
Mother during her visitation hours, and Mother never showed. Although
Father admitted to blocking Mother on his phone and social media
accounts, the parties were ordered to communicate about C.H. through
email, and Father left this channel of communication open. Even if Mother
believed Father was trying to prevent her from contacting C.H., Mother did
not seek court orders regarding visitation with C.H., and there was no
evidence that she took any actions to enforce her parenting rights.

¶18             “The burden to act as a parent rests with the parent, who
should assert [her] legal rights at the first and every opportunity.” Michael
J., 196 Ariz. at 251, ¶ 25. When circumstances prevent traditional means of
bonding with a child, a parent “must act persistently to establish the
relationship however possible” and “must vigorously assert [her] legal
rights to the extent necessary.” Id. at 250, ¶ 22 (quoting Pima Cnty. Juv.
Severance Action No. S-114487, 179 Ariz. 86, 97 (1994)). For four years,
Mother failed to take any meaningful actions to maintain a relationship
with C.H.1

¶19           Finally, Mother argues this matter should instead “be
addressed through the capable hands of the family court.” But Father was
statutorily authorized to seek termination pursuant to A.R.S. § 8-533(A)
(“Any person or agency that has a legitimate interest in the welfare of a
child, including, but not limited to, a relative . . . may file a petition for the
termination of the parent-child relationship . . . .”). The superior court did
not err in entertaining the petition to terminate Mother’s parental
relationship or in finding Mother abandoned C.H.



1       In passing, Mother argues that because Father allegedly denied her
access to C.H., he is barred from seeking termination under the doctrine of
“unclean hands.” However, the doctrine of “unclean hands is an equitable
defense to a claim seeking equitable relief,” and it is not relevant here. See
Tripati v. State, 199 Ariz. 222, 225, ¶ 8 (App. 2000) (internal quotation marks
and citation omitted) (emphasis omitted).



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                        CINDY M. v. CLAUDIO H., C.H.
                            Decision of the Court

II.    Best Interests

¶20             Mother also argues the superior court erred in finding
termination was in C.H.’s best interests. Termination is in a child’s best
interests if the child will benefit from severance, or the child will be harmed
if the court denies it. Alma S., 245 Ariz. at 150, ¶ 13. Factors that support a
finding the child would benefit from severance include the availability of
an adoption plan, a child’s adoptability, and whether an existing placement
is meeting the child’s needs. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz.
345, 350, ¶ 23 (App. 2013); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 352 (App. 1994).

¶21            The superior court found that C.H. would benefit from
termination because Stephanie H. wished to adopt C.H. The superior court
found that Stephanie H. had been an active part of C.H.’s life for the past
several years, C.H. calls Stephanie H. “mom,” and C.H. and Stephanie H.
“have a close and loving bond.” Mother argues that the adoption plan does
not demonstrate termination is in C.H.’s best interests because Stephanie H.
also testified that her relationship with C.H. would not change if she were
unable to adopt. While Stephanie H. testified that she would continue to
maintain a relationship with C.H., even if the termination was not granted,
the superior court noted that adoption would provide C.H. with
permanency and stability if anything were to happen to Father.

¶22            Mother also argues that termination is not in C.H.’s best
interests because C.H. would be deprived of a sibling relationship with
Mother’s other biological children. The existence of a bond between
biological family members, “although a factor to consider, is not dispositive
in addressing best interests.” Dominique M. v. Dep’t of Child Safety, 240 Ariz.
96, 98, ¶ 12 (App. 2016). Here, however, C.H. has not seen C.M. in several
years, and C.H. has never met Mother’s other biological children. The
superior court did not err in finding that severance was in C.H.’s best
interests.

                                 CONCLUSION

¶23           For the foregoing reasons, we affirm.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA
                                         7
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