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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONY J., Appellant,

v.

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

No. 1 CA-JV 16-0531

Appeal from the Superior Court in Maricopa County

No. JD31782

The Honorable Sally S. Duncan, Judge

AFFIRMED

COUNSEL

Law Office of Robert D. Rosanelli, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Daniel R. Huff

Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
TONY J. v. DCS, A.J.

Decision of the Court

2

W I N T H R O P, Judge:

¶1 Tony J. (“Father”), the biological father of A.J. (“the child”),

appeals the juvenile court’s order terminating his parental rights to the 

child on the grounds of abandonment and length-of-sentence.

1 Father

challenges the statutory bases for severance found by the court. For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 The child was born in January 2014. In June 2015, Father was 

arrested and booked into custody for armed robbery, a class two felony, 

and theft, a class three felony. He was convicted as charged and ordered to 

serve concurrent sentences of 3 and 3.5 years’ imprisonment in the Arizona 

Department of Corrections (“ADOC”).

3 On December 28, 2015, Father was 

transferred to the ADOC complex in Yuma.

¶3 Meanwhile, on December 7, 2015, the Department of Child 

Safety (“DCS”) received a report that Mother had been arrested on drug 

and child abuse charges after law enforcement officers found heroin and 

drug paraphernalia in a hotel room where Mother, the child, and Mother’s

“significant other” were residing. The officers also found a “meth pipe” 

and heroin in Mother’s bag, and Mother admitted she had been abusing 

heroin for at least six months. Mother later acknowledged she had been a 

drug addict for five years.

¶4 DCS removed the child from Mother’s care.

4 At the time of 

the child’s removal, Mother reported that Father was incarcerated,

 

1 The child’s biological mother (“Mother”) died shortly before the 

contested severance hearing and is not a party to this appeal.

2 We view the facts and reasonable inferences therefrom in the light 

most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ. 

Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).

3 Father’s scheduled release date is June 9, 2018, and his maximum 

end date is March 8, 2019.

4 DCS also noted that the child’s diaper was soaked and his juice bottle 

was expired, and after the child’s removal, DCS learned the child’s teeth 

were rotting. Mother acknowledged having been advised by a dentist in 
TONY J. v. DCS, A.J.

Decision of the Court

3

although DCS could not immediately determine where, or when he might 

be released. The child was placed in a licensed foster home, and DCS 

eventually concluded that Father had abandoned the child because Father

had “not seen the child for an extended period of time,” had “not sent cards, 

gifts, letters, or support to the child during that time,” and had “failed to 

seek custody or parenting time with the child.”

¶5 On December 10, 2015, DCS filed a dependency petition,

alleging the child was dependent as to Mother based upon her drug use 

and as to Father based upon abandonment and his incarceration.

¶6 By early January 2016, DCS had located Father at the ADOC 

complex in Yuma. DCS obtained an order requiring Father to submit to 

DNA testing to establish his paternity of the child,

5 and Father was served 

with the dependency petition.

¶7 In March 2016, the court found the child dependent as to 

Mother. Meanwhile, DCS had been offering Mother numerous services and 

encouraged Father to participate in any services available to him while 

incarcerated.

¶8 Mother was generally noncompliant with services, and in

April 2016, she was briefly incarcerated. Father appeared telephonically at 

the April 29, 2016 initial hearing on the dependency petition, and the 

juvenile court adjudicated the child dependent as to Father and approved 

a case plan of family reunification concurrent with severance and 

adoption.6

¶9 Over the next several months, nothing changed; Mother 

continued to be noncompliant with services, and Father remained 

incarcerated and had not engaged in services at the prison. At a July 25, 

 

Sacramento that the child needed dental care, but she had failed to follow 

up on the required care and admitted the child “eats nothing but candy.” 

DCS also learned that, despite Mother’s awareness that DCS had previously 

removed her significant other’s children from his care due to his drug use,

Mother had continued to expose the child to him.

5 The lab conducting the DNA testing subsequently disclosed that the 

probability of Father’s paternity was 99.99 percent.

6 Mother had been released by this time and appeared at the hearing.
TONY J. v. DCS, A.J.

Decision of the Court

4

2016 report and review hearing, Father appeared telephonically, and the 

juvenile court granted DCS’s motion to change the case plan to severance 

and adoption.

¶10 On August 26, 2016, DCS moved to terminate the parents’ 

parental rights to the child. As to Father, DCS moved to terminate his rights 

on the statutory grounds of abandonment, his conviction of a felony the 

nature of which proved his unfitness to have future custody, and the length

of his prison sentence.

7 See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(1), (4)

(Supp. 2016).

¶11 Mother passed away shortly before the November 28, 2016 

hearing on the motion for termination, and at the hearing, the DCS case 

manager assigned to the case testified that Father had not had or attempted

to have any contact with the child since the child’s removal from Mother’s 

care in December 2015. The case manager testified she provided Father 

with her mailing address after receiving a collect phone call from him early 

in the case, twice mailed “service letters” to Father during the dependency

(in May and October 2016), and had received no mail returned as 

undeliverable. Nonetheless, during the nearly year-long interval that the 

child had been in DCS’s care, Father had not contacted DCS to inquire about

the child’s well-being or to request visitation, and had not provided the 

child with any correspondence, gifts, or financial support. The case 

manager further testified that, given Father’s incarceration, his relationship 

with the child could not be nurtured because “[i]t’s very hard for a parent 

to [care for a] child while in incarceration. He’s not there on a day-to-day

basis. He’s not there to help . . . when things go on.” She added that, 

although generally allowed, personal visits with prisoners such as Father 

were “very limited,” and phone calls were also limited based on an inmate’s

behavior while in prison. Moreover, because Mother had died, the child

had no other parent to care for him.

¶12 Father testified that before he was arrested in June 2015, he 

had lived with Mother and the child, and would take the child “to go 

fishing,” “to go feed the ducks,” and “to go to Chuck E Cheese all the time.” 

Father also testified that he and the child were “very close,” and he denied 

ever noticing Mother’s substance-abuse issues. After he was incarcerated, 

Father became aware of DCS’s involvement “around before Christmas in 

2015,” and thereafter, he submitted to the paternity test that established his 

paternity to the child. Father claimed he was unable to send 

correspondence to the child from prison because he did not know the 

 

7 DCS later withdrew the nature-of-felony ground.
TONY J. v. DCS, A.J.

Decision of the Court

5

address, had not received any letters from DCS, and was not permitted to 

make calls from prison, but he also acknowledged he had been

telephonically present for court hearings and had never raised the issue. 

Father also claimed he had begun taking parenting classes and had “just 

start[ed] sending [the child] letters.”

¶13 At the close of the hearing, the juvenile court granted DCS’s 

motion to terminate Father’s parental rights to the child on the grounds of 

abandonment and length-of-sentence. In part, the court found that Father 

had “failed to provide reasonable support, maintain regular contact and/or 

normal supervision” of the child since his incarceration in June 2015 and 

that, given Father’s expected release date, “the child would be deprived of 

a normal home for a period of years.” Finally, the court found that 

severance was in the child’s best interest.

¶14 Father filed a timely notice of appeal. We have jurisdiction 

pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules 

of Procedure for the Juvenile Court.

ANALYSIS

I. Standard of Review

¶15 A parent possesses a fundamental liberty interest in the care, 

custody, and management of his child. Kent K. v. Bobby M., 210 Ariz. 279, 

284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 

753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11, 995 

P.2d 682, 684 (2000)). Even fundamental rights are not absolute, however. 

Id. (citing Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684). A court may 

sever those rights if it finds clear and convincing evidence of one of the 

statutory grounds for severance, and finds by a preponderance of the 

evidence that severance is in the child’s best interest. See A.R.S. §§ 8-533(B), 

-537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–

16, 1022.

¶16 The juvenile court retains great discretion in weighing and 

balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action 

No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of fact in 

a termination proceeding, the juvenile court “is in the best position to weigh 

the evidence, observe the parties, judge the credibility of witnesses, and 

resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, 

¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar 

O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)). Thus, the 

resolution of conflicts in the evidence is uniquely the province of the 
TONY J. v. DCS, A.J.

Decision of the Court

6

juvenile court, and we will not reweigh the evidence in our review. Jesus 

M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 

2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115, 575 P.2d 310, 

314 (1978) (“In considering the evidence it is well settled that an appellate 

court will not substitute its own opinion for that of the trial court.” (citation 

omitted)).

¶17 We will not disturb the juvenile court’s order absent an abuse 

of discretion or unless no reasonable evidence supports its factual findings. 

Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d at 606; Mary Lou C. v. Ariz. Dep’t 

of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). In reviewing 

the juvenile court’s decision to terminate parental rights, we review de novo

questions of law and the court’s legal determinations, including the 

application of a statute or rule. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 

Ariz. 205, 210, ¶ 18, 181 P.3d 1126, 1131 (App. 2008); Ariz. Dep’t of Econ. Sec.

v. Ciana H., 191 Ariz. 339, 341-42, 955 P.2d 977, 979-80 (App. 1998); Maricopa 

Cty. Juv. Action No. JV-507879, 181 Ariz. 246, 247, 889 P.2d 39, 40 (App. 1995).

II. Father’s Argument Regarding Abandonment

¶18 Father argues the juvenile court erred in terminating his 

parental rights on the ground of abandonment, claiming that DCS and the 

court “interfered” with his ability to maintain a relationship with the child. 

Specifically, Father claims he “was completely uni[n]formed that he could 

have visits or communicate with the child” and “believed that he could not 

address the court” during hearings regarding visitation.

¶19 Under A.R.S. § 8-533(B)(1), the juvenile court may terminate 

parental rights if “the parent has abandoned the child.” 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,” and “includes a judicial finding that a parent has made only 

minimal efforts to support and communicate with the child.” A.R.S. § 8-

531(1) (Supp. 2016). “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.” Id. Under A.R.S. § 8-531(1), 

“abandonment is measured not by a parent’s subjective intent, but by the 

parent’s conduct: the statute asks 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.” Michael J., 196 Ariz. at 249-50, ¶ 18, 995 P.2d 

at 685-86.
TONY J. v. DCS, A.J.

Decision of the Court

7

¶20 A parent’s incarceration, standing alone, does not provide a 

legal defense to a claim of abandonment or justify severance on the grounds 

of abandonment. Id. at 250, ¶ 22, 995 P.2d at 686. Instead, incarceration is 

merely one factor that the juvenile court may consider in evaluating

whether a parent can perform parental obligations. Id. When 

circumstances such as incarceration prevent a parent from exercising 

traditional methods of bonding, the parent “must act persistently to 

establish the relationship however possible and must vigorously assert his 

legal rights to the extent necessary.” Id. (quoting Pima Cty. Juv. Severance 

Action No. S-114487, 179 Ariz. 86, 97, 876 P.2d 1121, 1132 (1994)). “The 

burden to act as a parent rests with the parent, who should assert his legal 

rights at the first and every opportunity.” Id. at 251, ¶ 25, 995 P.2d at 687 

(citing S–114487, 179 Ariz. at 98, 876 P.2d at 1133). Thus, “the father must 

take concrete steps to establish the legal or emotional bonds linking parent 

and child,” and “do more than just wait to respond [to legal proceedings] 

or oppose” a severance motion, “he need[s] to affirmatively act to establish 

his rights.” S-114487, 179 Ariz. at 96, 98-99, 876 P.2d at 1131, 1133-34.

¶21 Even assuming arguendo that Father’s claims are true, Father 

bore the burden of ensuring that he maintained a parent-child relationship 

with the child, and reasonable evidence supports the juvenile court’s 

findings that he did not. The record indicates that Father had effectively 

abandoned the child even before DCS and the court became involved

because, when DCS removed the child from Mother’s care in December 

2015, DCS learned that Father had neither seen the child nor made efforts 

to contact him or send support or gifts to him “for an extended period of 

time.” DCS located Father by the next month, had him served with the 

dependency petition, and arranged for him to submit to DNA testing and 

establish his paternity of the child—something Father had not done since 

the child’s birth approximately two years earlier. Despite being provided

the case manager’s contact information and appointed counsel (with 

contact information), Father failed for nearly a yearto have any contact with 

the child, attempt to seek visitation or otherwise communicate with the 

child, ask about the child’s well-being, or send the child any 

correspondence, gifts, or financial support.

8 Although Father claims he did 

not know he could address the court regarding visitation during the 

hearings he attended, such a claim, even if true, does not explain why he 

did not ask either the case manager or his counsel about visitation. Father 

could have sent letters or requested visits through either of them while the 

child was in DCS’s care.

 

8 The record indicates Father has been employed while in prison.
TONY J. v. DCS, A.J.

Decision of the Court

8

¶22 Accordingly, reasonable evidence shows that Father made no 

effort to communicate with, support, or maintain any parent-child 

relationship with the child for over six months without just cause. The 

court’s severance order based on abandonment is supported by clear and 

convincing evidence.9

 III. Best Interest

¶23 Father does not challenge the juvenile court’s finding that 

severance was in the child’s best interest; however, we note that the record 

supports the finding.

¶24 At the time of the severance hearing, the child had remained 

with the same prospective adoptive family throughout the dependency, 

and had bonded with his foster parents, who he viewed as his mother and 

father.10 See Oscar O., 209 Ariz. at 334, ¶ 6, 100 P.3d at 945; Audra T. v. Ariz. 

Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). 

The record also indicates the child’s foster placement is meeting the child’s 

physical, social, educational, medical, psychological, and emotional needs. 

See Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291. Further, the court found 

and the record demonstrates the affirmative benefits of permanency and 

stability available to the child from severance. See generally Maricopa Cty. 

Juv. Action No. JS–500274, 167 Ariz. 1, 6-7, 804 P.2d 730, 735-36 (1990).

 

9 Father also argues the juvenile court erred in terminating his 

parental rights based on the length-of-sentence ground. Because clear and 

convincing evidence supports the statutory ground of abandonment, we 

need not address Father’s claims pertaining to the length-of-sentence

ground. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citations omitted); 

see also A.R.S. § 8-533(B) (requiring that evidence sufficient to justify the 

termination of the parent-child relationship include “any one” of the 

enumerated termination grounds).

10 Although DCS had contacted the paternal grandmother, who had 

stated that she would talk with Father’s family to see if anyone could 

participate in an out-of-state assessment for potential placement of the 

child, neither the paternal grandmother nor any other paternal relative had 

provided DCS with additional information.
TONY J. v. DCS, A.J.

Decision of the Court

9

CONCLUSION

¶25 The juvenile court’s order terminating Father’s parentalrights 

to the child is affirmed.